REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of November 25, 1997 (the "Remarketing
Agreement"), by and between BRAVO Trust Series 1997-1, a Delaware business trust
having its principal office c/o The Bank of New York, 101 Barclay Street, New
York, New York 10286 (the "Trust") and Lehman Brothers Inc., a Delaware
corporation having its principal office at 3 World Financial Center, New York,
New York 10285 ("Lehman").
WHEREAS, the Trust proposes to issue BRAVO Trust Series 1997-1 Floating
Rate Class A Trust Certificates (the "Class A Trust Certificates") and the BRAVO
Trust Series 1997-1 Class B Trust Certificates (the "Class B Trust Certificates"
and together with the Class A Trust Certificates, the "Trust Certificates")
pursuant to the Trust Agreement under which it was established (the "Trust
Agreement"); and
WHEREAS, the Trust has prepared an offering circular and a supplement
thereto, each dated the date hereof, for use in connection with the offering and
sale of the Class A Trust Certificates; and the Trust will prepare and deliver
to the Remarketing Agent such offering circular and supplement, together with
any amendment thereto or supplement thereof as may be required under the
Securities Act of 1933 (the "1933 Act") or the Securities Exchange Act of 1934
(the "1934 Act") with respect to a Remarketing (such offering circular and
supplement, as amended and supplemented from time to time, delivered to the
Remarketing Agent in connection with a Remarketing, the "Offering Circular");
and
WHEREAS, the Trust has requested Lehman to act as a remarketing agent (i)
to remarket Class A Trust Certificates tendered to Lehman in a remarketing (a
"Remarketing") on behalf of the Holders of the Class A Trust Certificates on
each date (a "Remarketing Date") that the principal amount of any Class A Trust
Certificate is due from the Trust other than the final maturity date of such
Class A Trust Certificate, and (ii) to carry out such other duties as are
assigned to Lehman as a remarketing agent herein and in the Class A Trust
Certificates (in such capacity, the "Remarketing Agent"); and
WHEREAS, Lehman is willing to assume such duties on the terms and
conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Trust Agreement and/or
the Class A Trust Certificates.
Section 2. REPRESENTATIONS AND WARRANTIES.
The Trust represents and warrants to the Remarketing Agent as of the date
hereof and as of the date that an amendment to, or a supplement of, the Offering
Circular is required to be delivered with respect to a Remarketing (each a
"Representation Date"), as follows:
(a) VALIDITY OF THE TRUST. The Trust has been duly organized and is
validly existing as a statutory business trust in good standing under the
laws of the State of Delaware and has the trust power and authority to own
properties and to conduct its business as described in the Offering
Circular and to enter into and perform its obligations under this
Agreement.
(b) AUTHORIZATION OF THE TRUST AGREEMENT. The Trust Agreement has
been duly authorized, executed and delivered by the Trustee on behalf of
the Trust and constitutes a valid and binding agreement of the Trust,
enforceable against the Trust in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(c) AUTHORIZATION OF THE TRUST CERTIFICATES. The Trust Certificates
have been duly authorized and executed by the Trustee on behalf of the
Trust and, when delivered against payment of the purchase price therefor,
will constitute valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, or by general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(d) AUTHORIZATION OF THIS AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Trustee on behalf of the Trust
and, assuming due authorization, execution and delivery by the other party
hereto, constitutes a valid and binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, except as (A) the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), and (B) rights of indemnity and contribution under this
Agreement may be limited by United States federal or state securities laws,
the laws of other jurisdictions or the public policy underlying any such
laws.
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(e) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the Trust
(including the Trustee and the Trust's Agent), threatened, against or
affecting the Trust, its properties or its assets which might reasonably be
expected to result in a material adverse change in the condition, financial
or otherwise, of the Trust (a "Material Adverse Effect"), or which might
reasonably be expected to materially and adversely affect the properties or
assets of the Trust or the consummation of this Agreement or the
performance by the Trust of its obligations hereunder.
(f) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Trust (including the
Trustee and the Trust's Agent) of its obligations hereunder, in connection
with any Remarketing of the Class A Trust Certificates hereunder or the
consummation of the transactions contemplated by this Agreement, the Trust
Agreement, the Purchase Agreement, the Separate Account Funding Agreement
(the "Funding Agreement"), dated the date hereof, between Integrity Life
Insurance Company (the "Insurer") and the Trust, and the Standby Trust
Certificate Purchase Agreement (the "Liquidity Agreement"), dated the date
hereof, among the Insurer, Bayerische Landesbank Girozentrale, a banking
company organized under the laws of the Federal Republic of Germany, acting
through its New York Branch ("BLB") and the Trust, and the Custody
Agreement (the "Custody Agreement"), dated the date hereof, among the
Insurer, the Trust and the Custodian.
(g) SIMILAR OFFERINGS. The Trust (including the Trustee and the
Trust's Agent) has not, directly or indirectly, solicited any offer to buy
or offered to sell, and will not, directly or indirectly, solicit any offer
to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the
sale of the Class A Trust Certificates in a manner that would require the
offering or sale of the Class A Trust Certificates to be registered under
the 1933 Act.
(h) OFFERING CIRCULAR. The Offering Circular does not, and will not,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation, warranty and agreement shall not apply to statements
in or omissions from the Offering Circular made in reliance upon and in
conformity with information furnished to the Trust in writing by the
Initial Purchaser or the Remarketing Agent expressly for use in the
Offering Circular.
(i) RULE 144A ELIGIBILITY. The Class A Trust Certificates are
eligible for resale pursuant to Rule 144A and are not of the same class as
securities listed on a national securities exchange registered under
Section 7 of the Securities Exchange Act
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of 1934, as amended (the "1934 Act"), or quoted in a U.S. automated
interdealer quotation system.
(j) NO GENERAL SOLICITATION. None of the Trust, its affiliates, as
such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or
any person acting on its or any of their behalf (other than Initial
Purchaser or the Remarketing Agent, as to which the Trust makes no
representation) has engaged or will engage, in connection with the offering
of the Trust Certificates, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(k) NO REGISTRATION REQUIRED. Subject to compliance with the
requirements contained herein, (i) the Trust is not required, and as a
result of the consummation of the transactions contemplated hereby will not
be required, to register as an investment company under the Investment
Company Act of 1940, as amended, and (ii) it is not necessary in connection
with a Remarketing of the Class A Trust Certificates in the manner
contemplated by this Agreement to register the Class A Trust Certificates
under the 1933 Act or to qualify the Trust Agreement under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
Section 3. COVENANTS OF THE TRUST. The Trust covenants with the Remarketing
Agent as follows:
(a) OFFERING CIRCULAR. If at any time, in connection with a Remarketing,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Remarketing Agent or counsel for
the Trust, to amend or supplement the Offering Circular in order to make the
statements therein, in the light of circumstances existing at the time the
Offering Circular is to be used in connection with such Remarketing, not
incorrect, incomplete or misleading in any material respect, prompt notices
shall be given, and confirmed in writing to the Remarketing Agent to cease
offers and sales of the Class A Trust Certificates, and the Trust will promptly
prepare and furnish, or cause to be promptly prepared and furnished, to the
Remarketing Agent such number of copies of such amendment or supplement as the
Remarketing Agent may reasonably request (in form and substance satisfactory to
counsel for the Remarketing Agent) so that the statements contained in the
Offering Circular as so amended or supplemented will not be incorrect,
incomplete or misleading in any material respect.
(b) INTEGRATION. The Trust agrees that it will not make any offer or sale
of securities of the Trust of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer or sale
would render invalid (for the purpose of any Remarketing) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A thereunder or otherwise.
(c) RULE 144A INFORMATION. The Trust agrees that, in order to render the
Class A Trust Certificates eligible for resale pursuant to Rule 144A under the
1933 Act, while any of the
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Class A Trust Certificates remain outstanding, it or the Trust's Agent will make
available, upon request, to any Holder or prospective purchasers of Class A
Trust Certificates the information specified in Rule 144A(d)(4).
Section 4. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT. (a) The
Trust hereby appoints Lehman, and Lehman hereby accepts such appointment, as the
exclusive Remarketing Agent for the purpose of (i) remarketing the Class A Trust
Certificates from time to time on behalf of the Holders thereof, and (ii)
performing such other duties as are assigned to the Remarketing Agent herein and
in the Class A Trust Certificates, all pursuant to the procedures set forth
herein and in the Class A Trust Certificates, provided, however, that the Trust
may appoint BLB or a subsidiary of BLB that is qualified to conduct Remarketing
as an additional Remarketing Agent (the "Additional Remarketing Agent") pursuant
to a remarketing agreement between the Trust and BLB or such subsidiary of BLB,
which remarketing agreement shall be substantially identical to this Agreement.
(b) The Remarketing Agent agrees, subject to Section 4(c) hereof, (i) to
use its best efforts to remarket the Class A Trust Certificates tendered to the
Remarketing Agent in a regularly scheduled Remarketing from time to time, and
(ii) to carry out such other duties as are assigned to the Remarketing Agent
herein, all in accordance with the provisions hereof and the Class A Trust
Certificates.
(c) It is understood and agreed by and among the parties hereto that the
Remarketing Agent shall not be obligated to remarket Class A Trust Certificates
at any time that any of the conditions as set forth in Section 8 hereof shall
not have been fully and completely met to the reasonable satisfaction of the
Remarketing Agent.
(d) By 12:00 noon, New York City time, on each Remarketing Date, the
Remarketing Agent shall advise the Trustee by telephone (or such other means as
is acceptable to the Trustee) of the total principal amount (as used herein and
in the Transfer Form attached hereto as Exhibit A, "principal amount" means the
face amount of the related Class A Trust Certificate or Certificates) of Class A
Trust Certificates tendered by Holders for the relevant Remarketing and the
total principal amount of Class A Trust Certificates purchased in such
Remarketing.
(e) By 12:00 noon, New York City time, on each Remarketing Date, the
Remarketing Agent shall give BLB, as the Liquidity Facility Provider, a
telephonic notice (or a notice by such other means as is acceptable to BLB),
confirmed promptly in writing, specifying (i) the amount of Class A Trust
Certificates to be purchased by BLB on such Remarketing Date pursuant to the
Liquidity Agreement, and (ii) the aggregate purchase price of such Class A Trust
Certificates.
(f) The transfer restrictions set forth in Sections 3.09, 3.10 and 3.11
of the Trust Agreement and the offer and sale procedures set forth in Section 5
of the Purchaser Agreement shall apply to a Remarketing of the Class A Trust
Certificates.
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(g) The Remarketing Agent may, with the consent of the Trustee and the
Liquidity Provider, modify the remarketing procedures set forth herein and in
the Supplement (the "Remarketing Procedures") so long as any such modification
does not materially and adversely affect the Trust or the Holders.
Section 5. FEES AND EXPENSES. For its services in performing its duties set
forth hereunder, the Remarketing Agent will receive from the Trust a fee payable
on each Remarketing Date equal to the product of (i) the total principal amount
of Class A Trust Certificates outstanding immediately following such Remarketing
(excluding therefrom any principal amount of Class A Trust Certificates
remarketed at such Remarketing by any other remarketing agent(s) to investors
other than those that shall have previously invested in the Class A Trust
Certificates through Lehman in its capacity either as the Initial Purchaser or
the Remarketing Agent), times (ii) 0.0005, and times (iii) a fraction, the
numerator of which is the total number of days from and including such
Remarketing Date to, but excluding, the "Extended Maturity Date" as defined in
the Market Agent Agreement and the denominator of which is 360. The obligations
of the Trust to make the payment required by this Section 5 shall survive the
termination of this Agreement and remain in full force and effect until all such
payments shall have been made in full.
Section 6. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT. (a) The
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder by giving 60 days' prior written notice to the Trust and the Trust's
Agent; PROVIDED, HOWEVER, that such resignation shall not become effective until
the Trust shall have appointed a successor remarketing agent and such successor
remarketing agent, which shall be a nationally recognized broker-dealer, shall
have entered into a remarketing agreement with the Trust in which it shall have
agreed to conduct Remarketings in accordance with the terms and conditions
hereof and as described in the Supplement and the Trust Agreement. In such case,
the Trust agrees to use its best efforts to appoint a successor remarketing
agent and enter into such a remarketing agreement with such person as soon as
reasonably practicable, provided that the terms thereof are acceptable to the
Trust.
(b) The Trust may remove the Remarketing Agent by giving at least 60 days'
prior written notice to the Remarketing Agent, PROVIDED, HOWEVER, that such
removal shall not become effective until the Trust shall have appointed a
successor remarketing agent in accordance with the terms hereof and the
Supplement and such successor remarketing agent, which shall be a nationally
recognized broker-dealer, shall have entered into a remarketing agreement with
the Trust in which it shall have agreed to conduct Remarketings in accordance
with the terms and conditions of the Supplement and the Trust Agreement.
Section 7. DEALING IN THE TRUST CERTIFICATES; REDEMPTION OF REMARKETING
AGENT'S TRUST CERTIFICATES. Lehman, when acting as Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Trust Certificates; PROVIDED, HOWEVER, that
Lehman is not obligated to purchase any Class A Trust Certificates that would
otherwise remain unsold in a Remarketing. If Lehman owns any Class
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A Trust Certificates immediately prior to a Remarketing, Lehman may sell such
principal amount of its Trust Certificates in such Remarketing. Lehman may
exercise any vote or join in any action which any Holders of Trust Certificates
may be entitled to exercise or take pursuant to the Trust Agreement or the Trust
Certificates with like effect as if it did not act in the capacity of
Remarketing Agent hereunder. Lehman in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Trust as freely as if it did not act in any capacity
hereunder.
Section 8. CONDITIONS TO THE OBLIGATIONS OF THE REMARKETING AGENT. The
obligations of the Remarketing Agent under this Agreement have been undertaken
in reliance on, and shall be subject to, (i) the due performance by the Trust of
its obligations and agreements as set forth in this Agreement, (ii) the accuracy
as of the date hereof and as of each Representation Date of the representations
and warranties of the Trust contained in the this Agreement, and (iii) the
further condition that none of the following events shall have occurred:
(a) the rating of the Class A Trust Certificates shall have been
downgraded or withdrawn by a national rating service after the date hereof,
the effect of which, in the reasonable opinion of the Remarketing Agent, is
to affect materially and adversely the marketability of the Class A Trust
Certificates; or
(b) without the prior written consent of the Remarketing Agent, the
Trust Agreement shall have been amended in any manner that, in the
reasonable opinion of the Remarketing Agent, materially and adversely
affects the marketability of the Class A Trust Certificates or the
Remarketing Procedures (a "Material Change"); or
(c) since the respective dates as of which information is given in
the Offering Circular, a Material Adverse Effect shall have occurred,
whether or not arising in the ordinary course of business; or
(d) the Trust Agreement, the Funding Agreement, the Custody Agreement
or the Liquidity Agreement shall have been terminated, or otherwise not be
in full force and effect; or
(e) an "Early Certificate Maturity Event" or "Early Funding Agreement
Termination Event" under the Custody Agreement or the Funding Agreement or
an "Event of Default" under the Liquidity Agreement shall have occurred and
be continuing, or an event shall have occurred and be continuing, which,
either with giving of notice thereof or passage of time or both, would
constitute an "Early Certificate Maturity Event" or "Early Funding
Agreement Termination Event" under the Custody Agreement or the Funding
Agreement or an "Event of Default" under the Liquidity Agreement; or
(f) the Indemnity Agreement between the Trust and BLB of even date
herewith (the "Indemnity Agreement") shall have been modified or amended
otherwise than with the prior written consent of the Remarketing Agent; or
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(g) there shall have occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Remarketing Agent, impracticable to
remarket the Class A Trust Certificates or to enforce contracts for the
Remarketing of the Class A Trust Certificates; or
(h) trading generally on the American Stock Exchange or the New York
Stock Exchange or in the NASDAQ National Market System shall have been
suspended or limited, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices shall have been required, by any
of said exchanges or by such system or by order of the Securities and
Exchange Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority; or
(i) a banking moratorium shall have been declared by either Federal,
New York, Delaware or Ohio authorities.
Section 9. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF REMARKETING AGENT. The Trust (subject to the prior
payment in full of all amounts due and payable in respect of the Class A Trust
Certificates) shall indemnify and hold harmless the Remarketing Agent and each
person, if any, who controls the Remarketing Agent within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Offering Circular (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue or incorrect
representation or warranty of the Trust contained in this Agreement, the
Trust Agreement, the Funding Agreement, the Custody Agreement, the
Liquidity Agreement or the Purchase Agreement;
(3) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or any such untrue or incorrect
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representation or warranty; provided that (subject to Section 9(c) below)
any such settlement is effected with the written consent of the Trust; and
(4) against any and all expense whatsoever (including the reasonable
fees and disbursements of counsel chosen by the Remarketing Agent)
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, any such alleged untrue statement or
omission or any such untrue or incorrect representation or warranty, to the
extent that any such expense is not paid under (1) (2) or (3) above;
PROVIDED, HOWEVER, that the Trust shall not be liable in any such case for any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the Trust
by the Remarketing Agent expressly for use in the Offering Circular (or any
amendment or supplement thereto).
The Trust covenants that it will, immediately upon receipt of any request
by the Remarketing Agent for payment of any loss, liability, claim, damage or
expense under this Section 9 provide notice of the same to BLB pursuant to the
Indemnity Agreement, take all necessary action to receive such payment pursuant
to the terms of the Indemnity Agreement and promptly remit such amount to the
Remarketing Agent.
(b) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to the Trust of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify the Trust shall not relieve the Trust from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Counsel to the indemnified parties
shall be selected by the Remarketing Agent. The Trust may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the Trust shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the Trust be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. The
Trust shall not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 9 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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(c) CONTRIBUTION. If the indemnification provided for in this Section 9 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then the Trust shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Trust on the one hand and the
Remarketing Agent on the other hand from a Remarketing of the Class A Trust
Certificates pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Trust on the one hand and of the
Remarketing Agent on the other hand.
The relative benefits received by the Trust on the one hand and the
Remarketing Agent on the other hand in connection with a Remarketing of the
Class A Trust Certificates pursuant to this Agreement shall be deemed to be
proportional to the total principal amount of Class A Trust Certificates
remarketed by the Remarketing Agent during such Remarketing and the total fees
received by the Remarketing Agent with respect to such Remarketing.
The relative fault of the Trust on the one hand and the Remarketing Agent
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Trust or by the Remarketing Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Trust and the Remarketing Agent agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Section 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing Agent or controlling person, or by or on
behalf of the Trust, and shall survive delivery of the Class A Trust
Certificates to the Remarketing Agent.
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Section 11. TERMINATION OF REMARKETING AGREEMENT. (a) This Agreement shall
terminate, as to the Remarketing Agent, on the effective date of the resignation
or removal of such Remarketing Agent pursuant to Section 6 hereof; provided,
however, that the provisions of Sections 5 and 9 hereof shall survive any such
termination.
(b) In addition, the Remarketing Agent may resign and be discharged from
its duties and obligations hereunder, by notifying the Trust of its election to
do so, (i) if any of the conditions referred to or set forth in Section 8 hereof
has not been met or satisfied in full and such failure shall have continued for
a period of 30 days after the Remarketing Agent has given notice thereof to the
Trust specifying the condition which has not been met and requiring it to be met
or (ii) in the event the Remarketing Agent reasonably determines, after
consultation with the Trust, that it has not received all of the information,
whether or not specifically referenced herein, necessary to fulfill its
obligations under this Agreement. Any resignation and discharge made pursuant to
clause (i) hereof shall be effective immediately after the Remarketing Agent
gives notice of its resignation as required in clause (i) hereof after 30 days
of failure by the Trust to meet the conditions specified in the Remarketing
Agent's first notice pursuant to clause (i) hereof. Any resignation and
discharge made pursuant to clause (ii) hereof shall be effective on the date
specified in such notice, but, unless the Remarketing Agent fails to perform its
duties under Section 4(b), not earlier than 60 days after the delivery of such
notice.
Section 12. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Remarketing Agreement, the Class A Trust Certificates, the
Supplement and the Purchase Agreement. No implied covenants or obligations of or
against the Remarketing Agent shall be read into this Remarketing Agreement. In
the absence of bad faith on the part of the Remarketing Agent, the Remarketing
Agent may conclusively rely upon any document furnished to it which purports to
conform to the requirements of this Remarketing Agreement, the Purchase
Agreement, or the Class A Trust Certificates as to the truth of the statements
expressed in any thereof. In addition, without limiting the foregoing, the
Remarketing Agent shall observe the restrictions on transfer and solicitation
contained in Sections 3.09, 3.10 and 3.11 of the Trust Agreement and the offer
and sale procedures set forth in Section 5 of the Purchase Agreement. The
Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to have been signed, presented or made
by the proper party or parties. The Remarketing Agent shall not incur any
liability to the Trust or to any Holder of Trust Certificates in its individual
capacity or as Remarketing Agent for any action or failure to act in connection
with a Remarketing or otherwise, except as a result of its gross negligence or
willful misconduct.
Section 13. BOOKS AND RECORDS. The Remarketing Agent shall keep such books
and records with respect to the performance of its duties hereunder as shall be
consistent with prudent industry practice and shall make such books and records
available for inspection by the Trustee on reasonable notice during normal
business hours.
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Section 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such state.
Section 15. TERM OF AGREEMENT. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof until the first day thereafter on which no Trust
Certificates are outstanding. The provisions of Sections 5 and 9 hereof shall
survive the termination or expiration of this Agreement.
Section 16. SUCCESSORS AND ASSIGNS. The rights and obligations of the Trust
hereunder may not be assigned or delegated to any other person without the prior
written consent of the Remarketing Agent. The rights and obligations of the
Remarketing Agent hereunder may not be assigned or delegated to any other person
without the prior written consent of the Trust and the Liquidity Provider. This
Agreement shall inure to the benefit of and be binding upon the Trust, the
Remarketing Agent and their respective successors and assigns and will not
confer any benefit upon any other person, partnership, association or
corporation other than persons, if any, controlling the Remarketing Agent within
the meaning of the 1933 Act of the 1934 Act. The terms "successors" and
"assigns" shall not include any purchaser of any of the Class A Trust
Certificates merely because of such purchase.
Section 17. HEADINGS. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
Section 18. SEVERABILITY. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 19. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 20. REMARKETING AGENT NOT ACTING AS UNDERWRITER. It is understood
and agreed by all parties hereto that the only obligations of the Remarketing
Agent hereunder are as set forth in this Agreement. When engaged in remarketing
any tendered Class A Trust Certificates, the Remarketing Agent shall act only as
agent for and on behalf of each Holder of the Class A Trust Certificates so
tendered. The Remarketing Agent shall not act as, or be considered to be acting
hereunder as, an underwriter for such tendered Class A Trust Certificates. The
Remarketing Agent shall not in any way be obligated to advance its own funds to
purchase any
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tendered Class A Trust Certificates (except in its respective individual
capacity as purchaser of those Class A Trust Certificates it shall elect to
purchase, in its sole discretion) or to otherwise expend or risk its own funds
or incur or become exposed to financial liability in the performance of its
duties hereunder.
Section 21. AMENDMENTS. This Agreement may be amended by any instrument in
writing signed by the parties hereto so long as this Agreement as amended is not
inconsistent with the Trust Agreement in effect as of the date of any such
amendment.
Section 22. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing and shall be deemed to have been validly given or made
when delivered or mailed, registered or certified mail, return receipt requested
and postage prepaid, addressed as follows: if to the Trust, to BRAVO Trust
Series 1997-1, c/o The Bank of New York, 101 Barclay Street, New York, New York
10286, Attention: Corporate Trust Administration Asset Backed Finance Unit; if
to the Remarketing Agent, to Lehman Brothers Inc., 3 World Financial Center, New
York, New York 10285, Attention: Commercial Paper Product Management.
Section 23. NO LIABILITY OF THE BANK. The Bank of New York (the "Bank") is
executing this Agreement on behalf of the Trust solely as Trustee under the
Trust Agreement and not in its individual capacity, and in no case whatsoever
shall the Bank be liable for the statements or agreements of the Trust
hereunder, except for liabilities arising out of the Bank's negligence or wilful
misconduct. All persons asserting any claim against the Bank or the Trustee or
the Trust by reason of the transaction contemplated by this Agreement shall look
solely to the Trust Property for payment or satisfaction thereof.
Section 24. NO PETITION COVENANT. Notwithstanding any prior termination of this
Agreement, neither the Trustee nor the Remarketing Agent shall, prior to the
date which is one year and one day after the payment in full of the Class A
Trust Certificates and 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, each of the Trust and Lehman has caused this Agreement
to be executed in its name and on its behalf by one of its duly authorized
officers as of the date first above written.
BRAVO TRUST SERIES 1997-1
By The Bank of New York, not in its
individual capacity, but as Trustee
By: /s/ Cheryl L. Laser
--------------------------------
Name: CHERYL L. LASER
Title: Assistant Vice President
LEHMAN BROTHERS INC.
By: /s/ Kyle L. Miller
--------------------------------
Name: Kyle L. Miller
Title: Senior Vice President