$450,000,000
BRAVO TRUST SERIES 1997-1
FLOATING RATE CLASS A TRUST CERTIFICATES
AND
$50,000,000
BRAVO TRUST SERIES 1997-1
CLASS B TRUST CERTIFICATES
PURCHASE AGREEMENT
November 25, 1997
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BRAVO Trust Series 1997-1, a trust established under the laws of the State
of Delaware (the "Trust") pursuant to a Declaration of Trust and Trust
Agreement, dated as of the date hereof (the "Trust Agreement"), between The Bank
of New York, a New York banking corporation, as trustee (the "Trustee") and the
holders (the "Holders") of the 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"), confirms its
agreement with ▇▇▇▇▇▇ Brothers Inc. (in its capacity as purchaser hereunder, the
"Initial Purchaser"), with respect to the issue and sale by the Trust, and the
purchase by the Initial Purchaser, of $450,000,000 aggregate principal amount of
the Class A Trust Certificates and $50,000,000 principal amount of the Class B
Trust Certificates.
The Trust understands that the Initial Purchaser proposes to make an
offering of the Class A Trust Certificates on the terms and in the manner set
forth herein and agrees that the Initial Purchaser may resell, subject to the
conditions set forth herein, all or a portion of the Class A Trust Certificates
to purchasers ("Subsequent Purchasers") at any time after the date of this
Agreement. The Class A Trust Certificates are to be offered and sold through the
Initial Purchaser without being registered under the Securities Act of 1933, as
amended (the "1933 Act"), in reliance upon Rule 144A ("Rule 144A") of the rules
and regulations promulgated under the 1933 Act by the Securities and Exchange
Commission (the "Commission"), to "qualified institutional buyers" as such term
is defined in Rule 144A. Pursuant to the terms of the Class A Trust
Certificates and the Trust Agreement, investors that acquire Class A Trust
Certificates may only resell or otherwise transfer such Class A Trust
Certificates if such Class A Trust Certificates are hereafter registered under
the 1933 Act or if an exemption from the registration requirements of the 1933
Act is available by Rule 144A.
The Trust also understands that, concurrently with the offering of the
Class A Trust Certificates, the Initial Purchaser proposes to resell the Class B
Trust Certificates, on the terms and in the manner set forth herein, to
Bayerische Landesbank Girozentrale, a banking company organized under the laws
of the Federal Republic of Germany, acting through one of its branches ("BLB").
The Class B Trust Certificates are to be offered and sold through the Initial
Purchaser without being registered under the 1933 Act, in reliance upon Rule
144A, to BLB as a "qualified institutional buyer," as such term is defined in
Rule 144A.
The Trust has prepared an offering circular and a supplement thereto, each
dated the date hereof (collectively, the "Offering Circular"), for use in
connection with the offering and sale of the Class A Trust Certificates.
The Trust has entered into a Remarketing Agreement dated the date hereof
(the "Remarketing Agreement") with ▇▇▇▇▇▇ Brothers Inc. (acting under the
Remarketing Agreement, "Lehman"), pursuant to which Lehman will act as
remarketing agent (i) to remarket Class A Trust Certificates tendered to Lehman
by or on behalf of holders of Class A Trust Certificates from time to time
pursuant to the Remarketing Agreement, and (ii) to carry out such other duties
as are assigned to Lehman as remarketing agent thereunder.
Section 1. INTERPRETATION.
Unless the context otherwise requires and except as varied or otherwise
specified in this Agreement, the words and expressions used herein shall bear
the same meaning as in the Trust Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES.
The Trust represents and warrants to the Initial Purchaser as of the date
hereof and agrees with the Initial Purchaser 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.
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(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.
(e) DESCRIPTION OF THE TRUST CERTIFICATES AND THE TRUST AGREEMENT. The
Trust Certificates and the Trust Agreement will conform in all material
respects to the respective statements relating thereto contained in the
Offering Circular and will be in substantially the respective forms
previously delivered to the Initial Purchaser.
(f) 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 assets which might reasonably be
expected to result in a material adverse change in the condition, financial
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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.
(g) 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 the offering,
issuance or sale of the Class A Trust Certificates hereunder or the
consummation of the transactions contemplated by this Agreement, the Trust
Agreement, the Remarketing 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, BLB and the Trust, and the
Custody Agreement (the "Custody Agreement"), dated the date hereof, among
the Insurer, the Trust and the Custodian.
(h) SIMILAR OFFERINGS. Neither the Trust, nor the Trustee, nor the
Trust's Agent has, 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.
(i) OFFERING CIRCULAR. The Offering Circular does 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 expressly for use in the Offering Circular.
(j) INVESTMENT COMPANY ACT. The Trust is not required to be registered
as an investment company under the Investment Company Act, as amended (the
"1940 Act").
(k) 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 6 of the Securities Exchange Act of 1934, as amended (the "1934
Act"), or quoted in a U.S. automated interdealer quotation system.
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(l) 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 the Initial
Purchaser, as to whom 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.
(m) NO REGISTRATION REQUIRED. Subject to compliance by the Initial
Purchaser with the representations and warranties set forth in Section 3
and the procedures set forth in Section 5 hereof and in the Trust Agreement
and the Offering Circular, it is not necessary in connection with the
offer, sale and delivery of the Class A Trust Certificates to the Initial
Purchaser and to each Subsequent Purchaser in the manner contemplated by
this Agreement and the Offering Circular 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. SALE AND DELIVERY TO INITIAL PURCHASER; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Initial Purchaser and the Initial Purchaser agrees to
purchase from the Trust, at the price of 100% of the principal amount, (A)
$450,000,000 in aggregate principal amount of Class A Trust Certificates and (B)
$50,000,000 in aggregate principal amount of Class B Trust Certificates.
(b) PAYMENT. Payment of the purchase price for, and delivery of the Trust
Certificates shall be made at the office of Brown & Wood LLP, or at such other
place as shall be agreed upon by the Initial Purchaser and the Trust, at 10:00
A.M. on the date hereof
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Initial Purchaser for the account of the Initial Purchaser of the Trust
Certificates to be purchased by it.
(c) QUALIFIED INSTITUTIONAL BUYER. The Initial Purchaser represents and
warrants to, and agrees with, the Trust that it is a "qualified institutional
buyer" within the meaning of Rule 144A (a "Qualified Institutional Buyer").
(d) DENOMINATIONS; REGISTRATION FOR CLASS A TRUST CERTIFICATES. The Class A
Trust Certificates shall be in denominations of $5,000,000 and integral
multiples of $1,000,000 in excess thereof.
(e) DENOMINATIONS; REGISTRATION FOR CLASS B TRUST CERTIFICATES. The Class B
Trust Certificates shall be in the denomination of $50,000,000 and registered in
the name of BLB.
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Section 4. COVENANTS OF THE TRUST. The Trust covenants with the Initial
Purchaser as follows:
(a) OFFERING CIRCULAR. The Trust, through the Trustee or the Trust's Agent,
as promptly as possible, will furnish to the Initial Purchaser, without charge,
such number of copies of the Offering Circular and any amendments and
supplements thereto as the Initial Purchaser may reasonably request.
(b) NOTICE AND EFFECT OF MATERIAL EVENTS. The Trust, through the Trust's
Agent, will immediately notify the Initial Purchaser, and confirm such notice in
writing prior to the completion of the placement of the Class A Trust
Certificates by the Initial Purchaser as evidenced by a notice in writing from
the Initial Purchaser to the Trustee and Trust's Agent, of any material changes
in or affecting the Trust which (i) make any statement in the Offering Circular
false or misleading or (ii) are not disclosed in the Offering Circular. In such
event or if during such time any event shall occur as a result of which it is
necessary, in the reasonable opinion of the Initial Purchaser or its counsel, to
amend or supplement the Offering Circular in order that the Offering Circular
not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances then existing, the Trust, through the Trust's Agent,
will forthwith amend or supplement the Offering Circular by preparing and
furnishing to the Initial Purchaser an amendment or amendments of, or a
supplement or supplements to, the Offering Circular (in form and substance
satisfactory in the reasonable opinion of counsel for the Initial Purchaser) so
that, as so amended or supplemented, the Offering Circular will not include 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
existing at the time it is delivered to a Subsequent Purchaser, not misleading.
(c) AMENDMENT TO OFFERING CIRCULAR AND SUPPLEMENTS. The Trust, through the
Trust's Agent, will advise the Initial Purchaser promptly of any proposal to
amend or supplement the Offering Circular and will not effect such amendment or
supplement without the consent of the Initial Purchaser. Neither the consent of
the Initial Purchaser, nor the Initial Purchaser's delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 7 hereof.
(d) RATING OF CLASS A TRUST CERTIFICATES. The Trust shall take, or cause to
be taken, all reasonable action necessary to enable Standard & Poor's Ratings
Services ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") to provide
their respective credit ratings of the Class A Trust Certificates.
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Section 5. SUBSEQUENT OFFERS AND RESALES OF CLASS A TRUST CERTIFICATES.
(a) OFFER AND SALE PROCEDURES. The Initial Purchaser and the Trust hereby
establish and agree to observe the following procedures in connection with the
offer and sale of Class A Trust Certificates:
(1) OFFERS AND SALES ONLY TO QUALIFIED INSTITUTIONAL BUYERS. Offers
and sales of the Class A Trust Certificates will be made only by the
Initial Purchaser or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer or
sale shall only be made to persons whom the offeror or seller reasonably
believes to be Qualified Institutional Buyers.
(2) NO GENERAL SOLICITATION. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in connection with the offering of the Class A Trust Certificates.
(3) PURCHASES BY NON-BANK FIDUCIARIES. In the case of a non-bank
Subsequent Purchaser of a Class A Trust Certificate acting as a fiduciary
for one or more third parties, in connection with an offer and sale to such
purchaser pursuant to clause (a) above, each third party shall, in the
judgment of the Initial Purchaser, be a Qualified Institutional Buyer.
(4) SUBSEQUENT PURCHASER NOTIFICATION. The Initial Purchaser will take
reasonable steps to inform, and cause each of its Affiliates to take
reasonable steps to inform, persons acquiring Class A Trust Certificates
from the Initial Purchaser or Affiliate, as the case may be, that the Class
A Trust Certificates (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933
Act in reliance on Rule 144A, and (C) may not be offered, sold or otherwise
transferred except (1) to the Trust, or (2) in accordance with (x) Rule
144A to a person whom the seller reasonably believes is a Qualified
Institutional Buyer that is purchasing such Class A Trust Certificates for
its own account or for the account of a Qualified Institutional Buyer to
whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A or (y) the exemption from registration under the 1933
Act provided by Rule 144, if available.
(5) MINIMUM PRINCIPAL AMOUNT. No sale of the Class A Trust
Certificates to any one Subsequent Purchaser will be for less than U.S.
$5,000,000 principal amount and no Class A Trust Certificate will be issued
in a smaller principal amount. If the Subsequent Purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom it is acting
must purchase at least U.S. $5,000,000 principal amount of the Class A
Trust Certificates.
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(6) RESTRICTIONS ON TRANSFER. The transfer restrictions and the other
provisions set forth in Sections 3.09, 3.10 and 3.11 of the Trust
Agreement, including the legend required thereby, shall apply to the Class
A Trust Certificates.
(7) DELIVERY OF OFFERING CIRCULAR. The Initial Purchaser will deliver
to each purchaser of the Class A Trust Certificates from it, in connection
with its original distribution or any Remarketing of the Class A Trust
Certificates, a copy of the Offering Circular, as amended and supplemented
at the date of such delivery.
(b) COVENANTS OF THE TRUST. The Trust covenants with the Initial Purchaser
as follows:
(i) DUE DILIGENCE. In connection with the original distribution of the
Class A Trust Certificates, the Trust agrees that, prior to any offer or
resale of the Class A Trust Certificates by the Initial Purchaser, the
Initial Purchaser and counsel for the Initial Purchaser shall have the
right to make reasonable inquiries into the business of the Trust. The
Trust also agrees to provide, or cause to be provided, answers to each
prospective Subsequent Purchaser of Class A Trust Certificates who so
requests concerning the Trust (to the extent that such information is
available or can be acquired and made available to prospective Subsequent
Purchasers without unreasonable effort or expense and to the extent the
provision thereof is not prohibited by applicable law) and the terms and
conditions of the offering of the Class A Trust Certificates, as provided
in the Offering Circular.
(ii) 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 (i) the sale of the
Class A Trust Certificates by the Trust to the Initial Purchaser, (ii) the
resale of the Class A Trust Certificates by the Initial Purchaser to
Subsequent Purchasers or (iii) the resale of the Class A Trust Certificates
by such Subsequent Purchasers to others) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2) thereof
or by Rule 144A thereunder or otherwise.
(iii) 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 Class A Trust Certificates remain
outstanding, the Trust, through the Trustee 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 6. PAYMENT OF EXPENSES. (a) INITIAL EXPENSES PAYABLE BY THE INITIAL
PURCHASER SUBJECT TO FULL REIMBURSEMENT BY BLB. The Initial Purchaser will pay,
subject to the full reimbursement thereof by BLB on the Closing Date, all
initial expenses incident to the performance by the Trust of its obligations
under this Agreement, including (i) the preparation,
8
printing and any filing of the Offering Circular (including any schedules or
exhibits) and of each amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Initial Purchaser of this Agreement, the Trust
Agreement and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Trust Certificates, (iii) the
preparation, issuance and delivery of the Trust Certificates to the Initial
Purchaser, (iv) the reasonable fees and expenses of the Trustee, including the
reasonable fees and disbursements of counsel for the Trustee in connection with
the Trust Agreement and the Trust Certificates, and (v) the fees and expenses of
the Initial Purchaser, including the reasonable fees and disbursements of
counsel for the Initial Purchaser, as agreed upon between the Initial Purchaser
and the Trust's Agent, except the fees in connection with the rating of the
Class A Trust Certificates shall be paid by the Insurer.
(b) ON-GOING CUSTOMARY EXPENSES PAYABLE BY THE TRUST. The Trust will pay
any ongoing customary expenses in connection with this Transaction.
Section 7. CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASER. The
obligations of the Initial Purchaser hereunder are subject to the accuracy of
the representations and warranties of the Trust contained in Section 2 hereof,
to the performance by the Trust of its covenants and other obligations
hereunder, and to the following further conditions:
(a) OPINION OF COUNSEL FOR TRUST. At the date hereof, the Initial
Purchaser shall have received a favorable opinion, dated as of the date
hereof, of (i) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Trust and the
Co-Trustee, and (ii) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Trustee in
form and substance satisfactory to counsel for the Initial Purchaser, to the
effect set forth in Exhibit A-1 hereto.
(b) OPINION OF COUNSEL FOR BLB. At the date hereof, the Initial Purchaser
shall have received a favorable opinion, dated as of the date hereof, of Brown &
Wood LLP, counsel for BLB, in form and substance satisfactory to the Initial
Purchaser, to the effect set forth in Exhibit A-2 hereto.
(c) RULE 2a-7 OPINION OF COUNSEL FOR BLB. At the date hereof, the Initial
Purchaser shall have received a favorable opinion, dated as of the date hereof,
of Brown & Wood LLP, counsel for BLB, with respect to the eligibility of the
Class A Trust Certificates for purchase by a money market fund in accordance
with the provisions of Rule 2a-7 under the 1940 Act, in form and substance
satisfactory to the Initial Purchaser.
(d) OPINION OF COUNSEL FOR INSURER. At the date hereof, the Initial
Purchaser shall have received a favorable opinion, dated as of the date hereof,
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Insurer, in form and substance
satisfactory to counsel for the Initial Purchaser, to the effect set forth in
Exhibit A-3 hereto.
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(e) OPINION OF TAX COUNSEL FOR INSURER. At the date hereof, the Initial
Purchaser shall have received a copy of an opinion, dated as of the date hereof
and addressed to the Insurer, of ▇▇▇▇▇ & ▇▇▇▇▇▇, special tax counsel for the
Insurer, in form and substance satisfactory to counsel for the Initial
Purchaser.
(f) OPINION OF OHIO INSURANCE COUNSEL FOR INSURER. At the date hereof, the
Initial Purchaser shall have received an opinion, dated as of the date hereof,
of LeBouef, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special Ohio insurance counsel for
the Insurer, in form and substance satisfactory to counsel for the Initial
Purchaser.
(g) OPINION OF COUNSEL FOR CUSTODIAN. At the date hereof, the Initial
Purchaser shall have received an opinion, dated as of the date hereof, of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, counsel for the Custodian, in form and substance satisfactory to
counsel for the Initial Purchaser.
(h) OPINION OF COUNSEL FOR VA CUSTODIAN. At the date hereof, the Initial
Purchaser shall have received an opinion, dated as of the date hereof, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Christian & ▇▇▇▇▇▇▇, counsel for the VA Custodian, in form and
substance satisfactory to counsel for the Initial Purchaser.
(i) MAINTENANCE OF RATING. At the date hereof, the Class A Trust
Certificates shall be rated at least "P-1" by ▇▇▇▇▇'▇ and "A-1+" by S&P, and
the Trust shall have delivered to the Initial Purchaser a letter dated the date
hereof, from each such rating agency, or other evidence satisfactory to the
Initial Purchaser, confirming that the Class A Trust Certificates have such
ratings.
(j) VALIDITY OF OTHER TRANSACTION DOCUMENTS. At the date hereof, each of
the Trust Agreement, the Funding Agreement, the Custody Agreement, the Liquidity
Agreement and the Remarketing Agreement shall have been duly authorized,
executed and delivered by the respective parties thereto and shall be in full
force and effect.
(k) NO EVENTS OF DEFAULT. At the date hereof, no "Early Certificate
Maturity Event" and/or "Early Funding Agreement Termination Event" under the
Custody Agreement and the Funding Agreement and no "Event of Default" under the
Liquidity Agreement shall have occurred and be continuing, and no 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"
and/or "Early Funding Agreement Termination Event" under the Custody Agreement
or the Funding Agreement or an "Event of Default" under the Liquidity Agreement.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF INITIAL PURCHASER. 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
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and hold harmless the Initial Purchaser and each person, if any, who controls
the Initial Purchaser 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 Remarketing 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, or of 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; provided that (subject to Section 8(c) below)
any such settlement is effected with the written consent of the Trust; and
(4) against any and all expense whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by the Initial
Purchaser) 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 Initial Purchaser 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 Initial Purchaser for payment of any loss, liability, claim,
damage or expense under this Section 8 provide notice of the same to BLB
pursuant to an Indemnity Agreement between the Trust and BLB of even date
herewith (the "Indemnity Agreement"), take all necessary action to receive
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such payment pursuant to the terms of the Indemnity Agreement and promptly remit
such amount to the Initial Purchaser.
(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 Initial Purchaser. 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 the Trust's 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 8 (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.
(c) CONTRIBUTION. If the indemnification provided for in this Section 8 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
Initial Purchaser on the other hand from the offering of the 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 Initial Purchaser on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Trust on the one hand and the Initial
Purchaser on the other hand in connection with the offering of the Trust
Certificates pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Trust
Certificates pursuant to this Agreement (before deducting expenses)
12
received by the Trust and the total fees received by the Initial Purchaser with
respect to the offering of the Trust Certificates, bear to the aggregate initial
offering price of the Trust Certificates.
The relative fault of the Trust on the one hand and the Initial Purchaser
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 (including the Trustee and Trust's Agent) or by the
Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Trust and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 8 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 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 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 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Trustee or Trust's Agent on behalf of the Trust
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Initial Purchaser or
controlling person, or by or on behalf of the Trust, and shall survive delivery
of the Trust Certificates to the Initial Purchaser.
Section 10. TERMINATION. The Initial Purchaser may terminate this
Agreement, by notice to the Trustee and Trust's Agent, at any time at or prior
to the closing (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Circular, any material adverse change in the condition, financial or
otherwise, of the Trust, whether or not arising in the ordinary course of
business, or (ii) if there has 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 Initial Purchaser, impracticable to market the Trust
Certificates or to enforce contracts for the
13
sale of the Trust Certificates, or (iii) if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ National Market
System has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(a) LIABILITIES. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party;
provided that Sections 2 and 8 shall survive such termination and remain in full
force and effect.
Section 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchaser shall be directed to ▇▇▇▇▇▇ Brothers Inc. at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Commercial Paper Product Management (Fax
▇▇▇-▇▇▇-▇▇▇▇); and notices to the Trust shall be directed to The Bank of New
York, as Trustee, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
Corporate Trust Administration Asset Backed Finance Unit (Fax ▇▇▇-▇▇▇-▇▇▇▇).
Section 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchaser and the Trust and their respective successors and the
controlling persons and officers and directors referred to in Section 8 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Initial Purchaser and the Trust and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of the Trust Certificates from the
Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
Section 13. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended
only by the mutual agreement of the parties hereto represented in a written
instrument.
Section 14. GOVERNING LAW, JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 15. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which taken together shall constitute one instrument.
14
Section 16. EFFECT OF HEADINGS. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
Section 17. 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 18. NO PETITION COVENANT. Notwithstanding any prior termination of
this Agreement, neither the Trustee nor Initial Purchaser 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.
15
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trustee a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchaser and the Trust in accordance with its terms.
Very truly yours,
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/ ▇▇▇▇▇▇ ▇. Laser
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
16
Exhibit A-1
FORM OF OPINION OF TRUST'S AND TRUSTEE'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 7(a)
PART I:
1. The Bank of New York (Delaware) has been duly incorporated, and is validly
existing in good standing as a banking corporation under the laws of the State
of Delaware and has the corporate power to execute, deliver and perform the
Trust Agreement.
2. The Trust has been duly formed and is validly existing as a business trust
under the laws of the State of Delaware, 12 DEL.C. Section 3801, ET SEQ.
3. The Co-Trustee Agreement has been duly authorized, executed and delivered
by The Bank of New York (Delaware) and is the legal, valid and binding agreement
of The Bank of New York (Delaware), enforceable against it in accordance with
its terms.
4. The execution and delivery of, and performance of the terms of, the
Co-Trustee Agreement by The Bank of New York (Delaware) does not conflict with
or constitute a breach of or default under its charter or by-laws or any
constitutional documents of the Trust or any agreement, indenture or other
instrument, in each case known to us, to which The Bank of New York (Delaware)
or the Trust is a party or by which it or any of its properties may be bound,
and does not violate any law, governmental rule or regulation of the State of
Delaware or any federal law of the United States of America governing the
banking or trust powers of The Bank of New York (Delaware) or any court decree
known to us to be applicable to The Bank of New York (Delaware) or the Trust.
5. No consent, approval or authorization of, or registration, declaration or
filing with, any court or governmental agency or body having jurisdiction in the
premises is required under Delaware law for the valid execution, delivery or
performance by The Bank of New York (Delaware) of the Co-Trustee Agreement or
for the validity or enforceability thereof, other than the filing of the
Certificate of Trust with the Secretary of State (which Certificate of Trust has
been duly filed).
A-1
PART II:
1. The Bank of New York has been duly incorporated, and is validly existing
in good standing as a banking corporation under the laws of the State of New
York and has the corporate power to execute, deliver and perform the Trust
Agreement.
2. The Trust Agreement has been duly authorized, executed and delivered by
The Bank of New York and is the legal, valid and binding agreement of The Bank
of New York, enforceable against it in accordance with its terms.
3. Each agreement, document, certificate and instrument (each, a "Trust
Document") has been duly authorized by the Trustee. The Trust Certificates have
been duly executed by the Trustee and, when executed and delivered to the
Initial Purchaser in accordance with the Trust Agreement and the Purchase
Agreement, will be entitled to the benefits of the Trust Agreement.
4. The Purchase 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 parties 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 the
Purchase 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.
5. The execution and delivery of, and performance of the terms of, the
Purchase Agreement, the Trust Agreement, the Trust Certificates and any other
Trust Documents by the Trustee on behalf of the Trust does not conflict with or
constitute a breach of or default under the charter or by-laws of The Bank of
New York or any agreement, indenture or other instrument, in each case actually
known to us without independent investigation, to which The Bank of New York is
a party or by which it or any of its properties may be bound, and does not
violate any law, governmental rule or regulation of the State of New York or any
federal law of the United States of America governing the banking or trust
powers of The Bank of New York or any court decree actually known to us without
independent investigation to be applicable to The Bank of New York.
6. No consent, approval or authorization of, or registration, declaration or
filing with, any court or governmental agency or body having jurisdiction in the
premises is required under New York law for the valid execution, delivery or
performance by The Bank of New York, of any Trust Document or for the validity
or enforceability thereof.
A-2
Exhibit A-2
FORM OF OPINION OF BLB'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(b)
1. The Class A Trust Certificates and the Trust Agreement conform in all
material respects to the descriptions thereof contained in the Offering
Circular.
2. The information in the Offering Circular Supplement under "The Trust
Certificates," "ERISA" and "Liquidity Agreement" and the information in the
Offering Circular under "The Description of the Trust Certificates" and "The
Trust" has been reviewed by us and is correct in all material respects.
3. The statements in the Offering Circular Supplement under the caption
"Certain Federal Income Tax Consequences," to the extent that they constitute
matters of the United States federal income tax laws or legal conclusions with
respect thereto, provide a fair and accurate summary of such laws or legal
conclusions in all material respects.
4. No authorization, approval, consent or order of any court or governmental
authority or agency (other than such as may be required under the applicable
securities laws of the various jurisdictions in which the Class A Trust
Certificates will be offered or sold, as to which we need express no opinion) is
required for the offering, issuance, sale or delivery of the Class A Trust
Certificates to the Initial Purchaser or the resale by the Initial Purchaser in
accordance with the Purchase Agreement.
5. The offer and sale of the Trust Certificates in the manner and under the
circumstances contemplated by the Offering Circular, the Trust Agreement and the
Purchase Agreement do not require registration of the Trust Certificates under
the 1933 Act.
6. The Trust is not required to be registered as an investment company under
the 1940 Act.
A-3
Exhibit A-3
FORM OF OPINION OF ▇▇▇▇▇▇▇'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(d)
1. The Funding Agreement, the Liquidity Agreement and Custody Agreement have
been duly authorized, executed and delivered by the Insurer and, assuming due
authorization, execution and delivery by the Trust, are the legal, valid and
binding agreements of the Insurer, enforceable against it in accordance with
their terms.
2. The information in the Offering Circular under "The Financial Instrument"
and in the Offering Circular Supplement under "The Trust Assets" has been
reviewed by us and is correct in all material respects.
A-4