AGENCY AGREEMENT
AGREEMENT made this 25th day of November, 1997, by and between (a) BRAVO
Trust Series 1997-1 (the "Trust"), a trust established under the laws of the
State of Delaware pursuant to the Declaration of Trust and Trust Agreement
dated November 25, 1997 (the "Trust Agreement") with The Bank of New York, a
New York banking corporation, as trustee (the "Trustee" and in its individual
capacity, the "Bank"), and (b) Bayerische Landesbank Girozentrale, New York
Branch (the "Trust's Agent").
W I T N E S S E T H:
WHEREAS, the Trust wishes to engage the Trust's Agent to act as agent for
the Trust and in such capacity to perform certain administrative services on its
behalf for the Trust; and
WHEREAS, the Trust's Agent is willing to perform such services and to act
in such capacity as aforesaid, subject to and in accordance with the provisions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS
Capitalized terms used herein, unless otherwise defined, shall have
the same meanings ascribed thereto in the Trust Agreement.
2. APPOINTMENT OF THE TRUST'S AGENT
The Trust hereby appoints the Trust's Agent to act as agent for the
Trust in accordance with the Trust Agreement and in such capacity to furnish, or
arrange for affiliates to furnish, the administrative services described below
for the period and on the terms and conditions set forth in this Agreement. The
Trust's Agent hereby accepts such appointment and agrees during such period to
render, or arrange for the rendering of, such services and to assume the
obligations herein set forth. The Trust's Agent shall act as an agent of the
Trust in an administrative capacity and not a fiduciary capacity. The Trust's
Agent shall have no agency or other relationship hereunder directly with any
Holder.
3. DUTIES OF TRUST'S AGENT
The Trust's Agent shall perform (or supervise the performance of) the
duties of the Trust's Agent contemplated by the Trust Agreement to be delegated
by the Trustee to the Trust's Agent, including but not limited to the following:
(i) determining and communicating to the Trustee any tax or
governmental charge that may be imposed in connection with any
transfer or exchange of Certificates as required by Section 3.05 of
the Trust Agreement;
(ii) appointing a successor Trustee upon the resignation of
the Trustee pursuant to Section 10.01(a) of the Trust Agreement;
(iii) causing the Certificates to be eligible for transfer
under Rule 144A promulgated under the Securities Act of 1933, as
amended (the "1933 Act"), and arranging for the preparation and
delivery of information with respect to the Trust in connection with
Certificate transfers pursuant to Rule 144A(d)(4) under the 1933 Act
in accordance with Section 3.09 of the Trust Agreement to the extent
such information is reasonably available;
(iv) appointing a Paying Agent, if and as required pursuant to
Section 3.12 of the Trust Agreement and causing any such Paying Agent
to execute any instruments or agreements pursuant to Section 3.12 of
the Trust Agreement;
(v) consulting with the Trustee as to the matters set forth
in Sections 5.01, 6.01, 6.02, 9.01 and 11.01 of the Trust Agreement;
and
(vi) approving any modification or termination of the Basic
Documents proposed by the Trustee pursuant to Section 6.03 of the
Trust Agreement.
4. INDEPENDENT CONTRACTOR
For all purposes of this Agreement, the Trust's Agent shall be an
independent contractor. Nothing contained in this Agreement shall (i) constitute
the Trust's Agent and the Trust or the Trustee as partners or joint venturers of
one another, (ii) be construed to impose any liability as such on either of
them, or (iii) be deemed to confer on either of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the other.
Unless expressly authorized by the Trust, the Trust's Agent shall have no
authority to act for or represent the Trust in any way and shall not otherwise
be deemed an agent of the Trust.
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5. LIMITS OF TRUST'S AGENT'S RESPONSIBILITY; INDEMNIFICATION
(a) The Trust's Agent, its directors, officers, shareholders and
employees and its affiliates shall not be liable to the Trustee, the Trust or
the Holders or others for actions or omissions in the performance of their
duties hereunder in compliance with the terms of this Agreement, except by
reason of acts or omissions constituting bad faith, willful misfeasance, gross
negligence or reckless disregard of their duties (the "Standard of Care"). The
Trust's Agent assumes no responsibility under this Agreement other than to
render the services called for hereunder in accordance with the Standard of
Care.
(b) The Trust hereby agrees to indemnify and hold harmless the
Trust's Agent and each person who controls the Trust's Agent within the
meaning of the federal securities laws, and their respective affiliates,
directors, officers, shareholders, employees and agents, from and against any
and all expenses (including but not limited to reasonable fees and expenses
of counsel), losses, damages, liability, demands, charges and claims of any
nature whatsoever which may be imposed on or incurred by any such person in
respect of or arising from any acts or omissions performed or omitted by the
Trust's Agent in compliance with the terms of this Agreement and in
accordance with the Standard of Care; PROVIDED, HOWEVER, that such
indemnification shall be provided solely from the Trust Property and the Bank
shall not be liable in its individual capacity for any such amounts.
(c) The Trust's Agent agrees that any amount payable to it under
subsection 5(b) hereof shall be only to the extent of any excess funds of the
Trust after payment of all other Trust Liabilities and all amounts due under the
Trust Certificates and that the obligation of the Trust to pay any such amount
to the Trust's Agent shall be expressly subordinate in right of payment to
amounts due to Holders under the Trust Certificates.
6. TERM OF AGREEMENT; TERMINATION
Unless previously terminated in accordance with this Section, this
Agreement shall terminate upon the termination of the Trust in accordance
with Section 9.01 of the Trust Agreement. The Trustee may terminate this
Agreement at any time upon 30 days' prior written notice to the Trust's
Agent. The Trust's Agent may resign its duties hereunder by providing the
Trustee with at least 60 days' written notice, provided that a successor
Trust's Agent, approved by the Trustee, has agreed in writing to assume all
of the obligations and duties of the Trust's Agent hereunder, and PROVIDED,
FURTHER, that the Trust's Agent may assign its rights and delegate its
obligations hereunder pursuant to Section 10 hereof. The Trustee shall notify
Standard & Poor's Ratings Services and Moody's Investors Service Inc. of any
such termination of this Agreement.
The Trust's Agent shall not resign unless it is prohibited from acting
hereunder by virtue of any insolvency proceeding involving it or because of the
likelihood of the imposition against it of any state or federal rule, regulation
or administrative order or because in the opinion of counsel it would be illegal
for the Trust's Agent to perform any or all of its
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duties hereunder. The Trustee shall have no duty or obligation to assume the
role as successor Trust's Agent unless the Trust's Agent is prohibited, for a
reason set forth in the preceding sentence, from acting hereunder. If the
Trust's Agent is so prohibited from acting hereunder, then the Trustee shall use
its best efforts to appoint a successor Trust's Agent. If no successor Trust's
Agent is appointed, the Trustee shall assume the role of the Trust's Agent until
such time as a successor Trust's Agent shall have been appointed and begun
acting as Trust's Agent. In no event, however, shall the Trustee, in its
capacity as successor Trust's Agent, be obligated to perform the duties set
forth in Section 3(iii) of this Agreement.
7. NON-EXCLUSIVITY
The nature of the duties of the Trust's Agent hereunder shall not
preclude the Trust's Agent from providing services of a like nature to any other
person, firm or corporation.
8. NOTICES
Any direction, notice, report or other communication required or
permitted hereunder shall be furnished or given in writing (which may be a
facsimile transmission) to the Trust or the Trust's Agent, as the case may be,
at the following addresses:
If to the Trust:
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
Telecopier: (212) 815-5544
If to the Trust's Agent:
Bayerische Landesbank Girozentrale, New York Branch
560 Lexington Avenue
New York, New York 10022
Attention: James M. Peterson
Telecopier: (212) 310-9870
If to Standard & Poor's Ratings Services:
Standard & Poor's Ratings Services
26 Broadway
New York, New York 10004
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Attention: Insurance Group-Separate
Account Unit
Telecopier: (212) 412-0323
If to Moody's Investors Service, Inc.:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Asset Backed Surveillance
Telecopier: (212) 553-0355
9. ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing signed by each party hereto.
10. ASSIGNMENT; SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and bind the parties
hereto and their respective successors and assigns; provided that the Trust's
Agent may not assign its rights and delegate its obligations hereunder without
the prior written consent of the Trustee unless such assignment is to a
wholly-owned, direct or indirect subsidiary of Bayerische Landesbank
Girozentrale, New York Branch, which shall not require the consent of the
Trustee; PROVIDED, FURTHER, that the Trust's Agent shall not assign or delegate
its obligations under Section 5(c) hereof without the prior written consent of
the Bank.
11. EXECUTION, DELIVERY AND PERFORMANCE BY TRUST'S AGENT
The execution, delivery and performance of this Agreement, to the best
of the knowledge of the Trust's Agent, after reasonable investigation, will not
conflict with or constitute a default under any order, judgement, decree,
agreement, injunction or other instrument binding on or affecting the property
or assets of the Trust's Agent.
12. EXECUTION OF BASIC DOCUMENTS
The Trust's Agent acknowledges that the Trustee is executing the Basic
Documents on behalf of the Trust.
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13. NON-PETITION
Notwithstanding any prior termination of this Agreement, the Trust's
Agent shall not 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.
14. GOVERNING LAW
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WHOLLY WITHIN SUCH JURISDICTION.
15. NO LIABILITY OF BANK
The Bank of New York 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. All persons asserting any claim against
the Bank, the Trustee or the Trust by reason of the transactions contemplated by
this Agreement shall look solely to the Trust Property for payment or
satisfaction thereof.
16. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agency
Agreement to be duly executed as of the day and year first above written.
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
----------------------------------------------
Name CHERYL L. LASER
Title: Assistant Vice President
BAYERISCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By: /s/ Bert von Stuelpnagel
----------------------------------------------
Bert von Stuelpnagel
Executive Vice President
and Manager
By: /s/ Ron Bertolini
----------------------------------------------
Ron Bertolini
First Vice President and
Treasury Manager
CO-TRUSTEE AGREEMENT
This Co-Trustee Agreement (this "Co-Trustee Agreement"), dated as of
November 25, 1997, between The Bank of New York (the "Trustee"), and The Bank
of New York (Delaware)(the "Delaware Trustee").
W I T N E S S E T H
WHEREAS, the holders of the Trust Certificates from time to time
thereunder and the Trustee have entered into a Declaration of Trust and Trust
Agreement dated as of November 25, 1997 (as the same may be further amended
or restated from time to time, the "Trust Agreement") with the intention of
forming BRAVO Trust Series 1997-1, a Delaware business trust (the "Trust")
pursuant to the Delaware Business Trust Act, 12 DEL. C. Section 3801, ET SEQ.
(the "DBTA"); capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Trust Agreement; and
WHEREAS, the DBTA requires that at least one trustee of the Trust have
its principal place of business in the State of Delaware; and
WHEREAS, the Delaware Trustee has its principal place of business in
the State of Delaware.
NOW, THEREFORE, the parties hereto hereby agree as follows:
FOR VALUABLE CONSIDERATION RECEIVED it is mutually covenanted and agreed
pursuant to the terms of Section 2.05 of the Trust Agreement that the
Delaware Trustee has been and by this document is, appointed to serve as the
trustee of the Trust in
the State of Delaware pursuant to Section 3807 of the DBTA. It is understood
and agreed that (a) the duties and responsibilities of the Delaware Trustee
shall be limited to the execution and delivery of all documents, and the
maintenance of all records, necessary to form and maintain the existence of
the Trust under the DBTA, and (b) the Delaware Trustee shall be entitled to
all of the benefits, immunities and protections provided to the Trustee in the
Trust Agreement and any other related documents. By the execution hereof,
the Delaware Trustee accepts the trust created hereinabove and in the Trust
Agreement; PROVIDED, HOWEVER, that the Delaware Trustee shall owe no other
fiduciary duties to the holders of the Trust Certificates other than as
expressly provided for in this Co-Trustee Agreement.
This Co-Trustee Agreement may be executed in separate counterparts,
each of which shall be an original and all of which taken together shall
constitute one and the same instrument. This Co-Trustee Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties have executed this Co-Trustee Agreement
as of the day and year first above written.
THE BANK OF NEW YORK
By: /s/ Cheryl L. Laser
---------------------------------
Name: CHERYL L. LASER
Title: Assistant Vice President
THE BANK OF NEW YORK
(DELAWARE)
By: /s/ Reyne A. Macadaeg
---------------------------------
Name: REYNE A. MACADAEG
Title: Assistant Vice President