EXHIBIT 1.1
MELLON AUTO TRUST 199_-_
$_______ ___% CLASS A ASSET BACKED CERTIFICATES
$_______ ___% CLASS B ASSET BACKED CERTIFICATES
Mellon Auto Receivables Corporation
(DEPOSITOR)
FORM OF UNDERWRITING AGREEMENT
_______ __, 199_
[Name of Underwriter(s)]
[Address(es) of Underwriter(s)]
Ladies and Gentlemen:
Mellon Auto Receivables Corporation (the "Depositor") has previously
filed a registration statement with the Securities and Exchange Commission
relating to the issuance and sale from time to time of up to $____ of asset
backed notes and/or asset backed certificates. The Depositor proposes to cause
MELLON AUTO TRUST 199_-_ (the "Trust") to issue and sell $_________ principal
amount of its ___% Class A Asset Backed Certificates (the "Class A
Certificates") and $________ principal amount of its Class B ___% Asset Backed
Certificates (the "Class B Certificates" and, together with the Class A
Certificates, the "Certificates") to you, as underwriters (each, an
"Underwriter"). The assets of the Trust will include, among other things, a pool
of motor vehicle retail installment sale contracts and other motor vehicle
installment chattel paper (the "Receivables") secured by new and used
automobiles (including passenger cars, minivans, sport/utility vehicles and
light trucks) financed thereby (the "Financed Vehicles"), and certain monies
received thereunder on or after , _____________ __, 199__ (the "Cutoff Date"),
and the other property and the proceeds thereof to be conveyed to the Trust
pursuant to the Pooling and Servicing Agreement to be dated as of , ______ __,
199__ (the "Pooling and Servicing Agreement") among _________________, a
___________________ (the "Trustee"), the Depositor, Mellon Bank, N.A., as seller
(in such capacity, the "Seller") and as servicer (in such capacity, the
"Servicer"). Pursuant to the Pooling and Servicing Agreement, the Seller will
sell the Receivables to the Depositor, the Depositor will sell the Receivables
to the Trust and the Servicer will service the Receivables on behalf of the
Trust. In addition, pursuant to the Pooling and Servicing Agreement, the
Servicer will agree to perform certain administrative tasks on behalf of the
Trust.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the Servicing Agreement.
SECTION 1 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-65271) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such Registration
Statement have been delivered by the Depositor to the Underwriters. As
used in this Agreement, "Effective Time" means the date and the time
as of which such Registration Statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Registration Statement" means such registration statement, at the
Effective Time, including any documents incorporated by reference
therein at such time; "Basic Prospectus" means the final prospectus
included in the Registration Statement at the Effective Time;
"Prospectus Supplement" means the final prospectus supplement relating
to the Offered Certificates, to be filed with the Commission pursuant
to paragraph (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations; and "Prospectus" means the Basic Prospectus together with
the Prospectus Supplement. Reference made herein to the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act, as of the date of the Prospectus and any reference to any
amendment or supplement to the Prospectus shall be deemed to refer to
and include any document filed under the Securities Exchange Act of
1934 (the "Exchange Act") after the date of the Prospectus, and
incorporated by reference in the Prospectus and any reference to any
amendment to the Registration Statement shall be deemed to include any
report of the Depositor filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. There are no
contracts or documents of the Depositor which are required to be filed
as exhibits to the Registration Statement pursuant to the Securities
Act or the Rules and Regulations which have not been so filed or
incorporated by reference therein on or prior to the Effective Date of
the Registration Statement. The conditions for use of Form S-3, as set
forth in the General Instructions thereto, have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus as of its date, and as amended or supplemented as of the
Closing Date, does not and will not contain any 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 no representation
or warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in
writing by the Underwriters expressly for use therein. The only
information furnished by or on behalf of the Underwriters for use in
connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
C. The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation is made as to
documents deemed to be incorporated by reference in the Prospectus as
the result of filing a Form 8-K at the request of the Underwriters
except to the extent such documents reflect information furnished by
the Depositor to the Underwriters for the purpose of preparing such
documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
E. The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement and to
cause the Certificates to be issued.
F. There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is
the subject (a) which if determined adversely to the Depositor would
have a material adverse effect on the business or financial condition
of the Depositor, (b) asserting the invalidity of this Agreement, the
Pooling and Servicing Agreement, or the Certificates, (c) seeking to
prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by the Pooling and
Servicing Agreement or this Agreement, or (d) which might materially
and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement, this Agreement or the Certificates.
G. This Agreement has been, and the Pooling and Servicing Agreement,
when executed and delivered as contemplated hereby and thereby will
have been, duly authorized, executed and delivered by the Depositor,
and this Agreement constitutes, and the Pooling and Servicing
Agreement when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable against
the Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization,
insolvency moratorium or other similar laws affecting creditors'
rights generally, (y) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law),
and (z) with respect to rights of indemnity under this Agreement,
limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor and the consummation
of the transactions contemplated hereby and thereby, and the issuance
and delivery of the Certificates do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Depositor
is a party, by which the Depositor is bound or to which any of the
properties or assets of the Depositor is subject, nor will such
actions result in any violation of the provisions of the certificate
of incorporation or by-laws of the Depositor or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Depositor or any of its properties or
assets.
I. KPMG Peat Marwick LLP is an independent public accountant with
respect to the Depositor as required by the Securities Act and the
Rules and Regulations.
J. The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly
authorized by the Depositor, and assuming the Trustee has been duly
authorized to do so, when executed, authenticated, issued and
delivered by the Trustee in accordance with the Pooling and Servicing
Agreement, the Certificates will be validly issued and outstanding and
will be entitled to the benefits provided by the Pooling and Servicing
Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates and
the sale of the Certificates to the Underwriters, or the consummation
by the Depositor of the other transactions contemplated by this
Agreement and the Pooling and Servicing Agreement, except such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Certificates by
the Underwriters or as have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Prospectus, and
the Depositor has not received notice of any proceedings relating to
the revocation or modification of any such license, certificate,
authority or permit which if decided adversely to the Depositor would,
singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
M. The Depositor's assignment and sale of the Receivables to the Trust
on the Closing Date will vest in the Trust all the Depositor's right,
title and interest therein, or will result in a first priority
perfected security interest therein, in either case subject to no
other outstanding lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively, "Liens").
N. The Receivables are chattel paper as defined in the Uniform
Commercial Code as in effect in the State of [Pennsylvania].
O. Under generally accepted accounting principles, the Depositor will
report its transfer of the Receivables to the Trustee pursuant to the
Pooling and Servicing Agreement as a sale of the Receivables. The
Depositor has been advised by KPMG Peat Marwick LLP that the transfer
will be so classified under generally accepted accounting principles
in accordance with Statement No. 77 of the Financial Accounting
Standards Board. The Depositor will also report such transfer in all
financial statements and reports prepared by it in accordance with
applicable regulatory accounting principles.
P. The Depositor, pursuant to the Pooling and Servicing Agreement, is
transferring to the Trust ownership of the Receivables, the security
interest in the Financed Vehicles securing the Receivables and the
proceeds of each of the foregoing, and, immediately prior to the
transfer thereof to the Trust, the Depositor will be the sole owner of
all right, title and interest in, and will have good and marketable
title to, the Receivables and the other property to be transferred by
it to the Trust. The assignment of the Receivables, all documents and
instruments relating thereto and all proceeds thereof to the Trust,
pursuant to the Pooling and Servicing Agreement, vests in the Trust
all interests which are purported to be conveyed thereby, free and
clear of any Liens.
Q. Immediately prior to the transfer of the Receivables to the Trust,
the Depositor's interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 financing statements (the
"Financing Statements") in the offices specified in Schedule I, and
there shall be no unreleased statements affecting the Receivables
filed in such offices other than the Financing Statements. If a court
concludes that the transfer of the Receivables from the Depositor to
the Trust is a sale, the interest of the Trust in the Receivables and
the proceeds thereof will be perfected upon the filing of the
Financing Statements in the office of the Secretary of State of the
State of __________. If a court concludes that each such transfer is
not a sale, the Pooling and Servicing Agreement and the transactions
contemplated thereby constitute a grant by the Depositor and the
Depositor to the Trust of a valid security interest in the Receivables
and the proceeds thereof, which security interest will be perfected
upon the filing of the Financing Statements in the office of the
Secretary of State of the State of __________ and [Pennsylvania]. No
filing or other action, other than the filing of the Financing
Statements in the office of the Secretary of State of the State of
_____________ [and Pennsylvania] referred to above, is necessary to
perfect and maintain the interest or the security interest of the
Trust in the Receivables and the proceeds thereof against third
parties.
R. As of the Cut-Off Date, each of the Receivables will meet the
eligibility criteria described in the Prospectus and will conform to
the descriptions thereof contained in the Prospectus.
S. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of
such term under the Investment Company Act of 1940 (the "1940 Act")
and the rules and regulations of the Commission thereunder.
T. At the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
U. At the Closing Date, the Certificates shall have been rated in the
categories and by the nationally recognized rating agencies as set
forth in the Prospectus Supplement.
V. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling
and Servicing Agreement and the Certificates have been paid or will be
paid at or prior to the Closing Date.
W. At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Pooling and Servicing Agreement will be
true and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
the Underwriters or counsel for the Underwriters in connection with an offering
of the Offered Certificates shall be deemed a representation and warranty as to
the matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
SECTION 2 PURCHASE AND SALE. The commitment of the Underwriters to
purchase the Certificates pursuant to this Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth. The Depositor
agrees to instruct the Trustee to issue the Certificates and agrees to sell to
each Underwriter, and each Underwriter agrees (except as provided in Sections 10
and 11 hereof) severally and not jointly to purchase from the Depositor the
aggregate initial principal amounts or percentage interests of the respective
Class or Classes of Certificates set forth opposite their names on Schedule A,
at the purchase price or prices set forth in Schedule A.
SECTION 3 DELIVERY AND PAYMENT. Delivery of and payment for the
Certificates to be purchased by the Underwriters shall be made at the offices of
Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Underwriters and the Depositor
at 10:00 A.M. New York City time on _____________, 199_, or at such other time
or date as shall be agreed upon in writing by the Underwriters and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Certificates shall be made to the Underwriters for
the accounts of the applicable Underwriters against payment of the purchase
price thereof. The Certificates shall be in such authorized denominations and
registered in such names as the Underwriters may request in writing at least two
business days prior to the Closing Date. The Certificates will be made available
for examination by the Underwriters no later than 2:00 P.M. New York City time
on the first business day prior to the Closing Date.
SECTION 4 OFFERING BY THE UNDERWRITERS. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the
Certificates for sale to the public as set forth in the Prospectus.
SECTION 5 COVENANTS OF THE DEPOSITOR. The Depositor agrees as follows:
A. To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the time required thereby; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus prior to the Closing Date except as permitted
herein; to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective prior to the Closing Date or any
supplement to the Prospectus or any amended Prospectus has been filed
prior to the Closing Date and to furnish the Underwriters with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Depositor with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Certificates, to promptly advise the
Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or
suspending the use of the Prospectus; (ii) the suspension of the
qualification of the Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for
any such purpose; (iv) any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or
for additional information. In the event of the issuance of any stop
order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, the Depositor
promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case including
exhibits); (ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference in the
Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the Effective Time in connection with the offering or
sale of the Certificates, and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Securities Act or the Exchange Act, the Depositor
shall notify the Underwriters and, upon the Underwriters' request,
shall file such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection with
sales of any of the Certificates at any time nine months or more after
the Effective Time, upon the request of the Underwriters but at their
expense, the Depositor shall prepare and deliver to the Underwriters
as many copies as the Underwriters may reasonably request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission.
E. The Depositor will cause any Investor Materials (as defined below)
with respect to the Certificates which are delivered by any
Underwriter to the Depositor and accompanied by a letter, reasonably
acceptable to the Underwriters and the Depositor, of KPMG Peat Marwick
LLP with respect to such Investor Materials to be filed with the
Commission on a Current Report on Form 8-K (the "Form 8-K -- Investor
Materials") at or before the time required by the No Action Letters
(defined below); provided, however, that the Depositor shall have no
obligation to file any materials which, in the reasonable
determination of the Depositor after consultation with such
Underwriter, (i) are not required to be filed pursuant to the No
Action Letters or (ii) contain any erroneous information or untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Depositor shall
have no obligation to review or pass upon the accuracy or adequacy of,
or to correct, any Investor Materials provided by any Underwriter to
the Depositor as aforesaid. For purposes hereof, as to each
Underwriter, the term "Investor Materials" shall mean those
Computational Materials, ABS Term Sheets and Collateral Term Sheets
delivered by an Underwriter to the Depositor within the meaning of the
no-action letter dated May 20, 1994 issued by the Commission to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I and certain affiliates, the
no-action letter dated May 27, 1994 issued by the Commission to the
Public Securities Association and the no action letter dated February
17, 1995 issued by the Commission to the Public Securities Association
(collectively, the "No Action Letters") for which the filing of such
material is a condition of the relief granted in such letters.
F. To furnish the Underwriters and counsel for the Underwriters, prior
to filing with the Commission, and to obtain the consent of the
Underwriters for the filing of the following documents relating to the
Certificates: (i) amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference in
the Prospectus, or (ii) Prospectus pursuant to Rule 424 of the Rules
and Regulations.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States or elsewhere as the Underwriters may designate, and maintain or
cause to be maintained such qualifications in effect for as long as
may be required for the distribution of the Certificates. The
Depositor will file or cause the filing of such statements and reports
as may be required by the laws of each jurisdiction in which the
Certificates have been so qualified.
H. Unless the Underwriters shall otherwise have given their written
consent, no asset-backed securities backed by motor vehicle
receivables or other similar securities representing interest in or
secured by other motor vehicle-related assets originated or owned by
the Depositor or the Seller shall be publicly offered, sold nor shall
the Depositor or the Seller enter into any contractual arrangements
that contemplate the public offering or sale of such securities for a
period of seven (7) business days following the commencement of the
offering of the Certificates to the public.
I. For a period from the date of this Agreement until the retirement
of the Certificates, or until such time as the Underwriters shall
cease to maintain a secondary market in the Certificates, whichever
occurs first, the Depositor will deliver to the Underwriters the
annual statements of compliance and the annual independent certified
public accountants' reports furnished to the Trustee pursuant to the
Pooling and Servicing Agreement, as soon as such statements and
reports are furnished to the Trustee.
J. So long as any of the Certificates are outstanding, the Depositor
will furnish to the Underwriters (i) as soon as practicable after the
end of the fiscal year all documents required to be distributed to
Certificateholders or filed with the Commission on behalf of the Trust
pursuant to the Exchange Act, or any order of the Commission
thereunder and (ii) from time to time, any other information
concerning the Depositor as the Underwriters may reasonably request
only insofar as such information reasonably relates to the
Registration Statement or the Prospectus or the transactions
contemplated by the Pooling and Servicing Agreement.
K. On or before the Closing Date, the Depositor shall cause the
computer records of the Depositor relating to the Receivables to show
the absolute ownership by the Trustee on behalf of the Trust of the
Receivables, and from and after the Closing Date the Depositor shall
not take any action inconsistent with the ownership by the Trustee on
behalf of the Trust of such Receivables, other than as permitted by
the Pooling and Servicing Agreement.
L. To the extent, if any, that any of the ratings provided with respect
to the Certificates by the rating agency or agencies that initially
rate any of the Certificates are conditional upon the furnishing of
documents or the taking of any other actions by the Depositor on or
prior to the Closing Date, the Depositor shall furnish such documents
and take any such other actions. A copy of any such document shall be
provided to the Underwriters at the time it is delivered to the rating
agencies.
SECTION 6 CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase the Certificates pursuant to this Agreement are
subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor and the Seller
herein contained; (ii) the performance by the Depositor of all of its
obligations hereunder; and (iii) the following conditions as of the Closing
Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the
Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Certificates, the Registration Statement and
the Prospectus, and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all
respects to the Underwriters and their counsel, and the Depositor
shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Underwriters, shall
have furnished to the Underwriters their written opinion, addressed to
the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in
the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus.
2. The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such
counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and not withdrawn
and no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement,
the Prospectus and each amendment or supplement thereto, as of
their respective effective or issue dates (other than the
financial and statistical information contained or incorporated
therein, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Securities Act and the Rules and Regulations
thereunder.
3. To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required
to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
4. The statements set forth in the Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations" and "Federal
Income Tax Consequences" to the extent that they constitute
matters of federal law or legal conclusions with respect thereto,
provide a fair and accurate summary of such law or conclusions.
5. The Pooling and Servicing Agreement conforms in all material
respects to the description thereof contained in the Prospectus
and is not required to be qualified under the Trust Indenture Act
of 1939, as amended.
6. Neither the Depositor nor the Trust is an "investment company"
or under the "control" of an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
7. The Receivables are chattel paper as defined in the UCC as in
effect in the State of New York.
8. The Certificates conform in all material respects to the
description thereof contained in the Prospectus.
9. The Certificates, when duly and validly executed,
authenticated and delivered by the Trustee in accordance with the
Pooling and Servicing Agreement and, delivered to the
Underwriters and paid for in accordance this Agreement, will be
validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement.
10. Assuming the due authorization, execution and delivery of
this Agreement and the Pooling and Servicing Agreement by the
other parties thereto, such agreements constitute the valid and
binding obligations of each of the Depositor and Mellon Bank,
N.A. (the "Bank"); enforceable against each of the Depositor and
the Bank in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally or rights of creditors of
an institution the deposits in which are insured by the Federal
Deposit Insurance Corporation and court decisions with respect
thereto, (y) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
(z) with respect to rights of indemnity under this Agreement,
limitations of public policy under applicable securities laws.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date,
in form and substance satisfactory to the Underwriters to the effect
that no facts have come to the attention of such counsel which lead
them to believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained or
incorporated in the Registration Statement);or (b) the Prospectus, as
of its date and as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits 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 (except as to financial or statistical data contained or
incorporated in the Prospectus).
E. The Underwriters shall have received the favorable opinion or
opinions, dated the Closing Date, of Stroock & Stroock & ▇▇▇▇▇ LLP,
counsel to the Underwriters, addressed to the Depositor, the Rating
Agencies, and the Underwriters, regarding the creation, attachment and
perfection of a first priority security interest in the Receivables
and the property held in the Reserve Account in favor of the Trustee
on behalf of the Certificateholders. Such opinion may contain such
assumptions, qualifications and limitations as are customary in
opinions of this type. In rendering such opinion, such counsel may
state that they express no opinion as to the laws of any jurisdiction
other than the federal law of the United States of America and the
laws of the State of New York. To the extent any portion of such
opinion is governed by the laws of the State of Delaware, such opinion
will be given by ___________________.
F. The Underwriters and the Depositor shall have received a favorable
opinion, dated the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇, Esq., Associate
General Counsel of Mellon Bank Corporation, with respect to certain
matters relating to the Bank, in its capacity as both Seller and
Servicer under the Pooling and Servicing Agreement, in form and
substance satisfactory to the Underwriters, to the effect that:
1. The Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of
the United States. The Bank has all power and authority necessary
to own or hold its properties and to conduct the business in
which it is engaged and to enter into and perform its obligations
under the Pooling and Servicing Agreement and this Agreement.
2. The Bank is not in violation of its charter or by-laws or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Bank is a party or by which it or
its properties may be bound, which default might result in any
material adverse change in the financial condition, earnings,
affairs or business of the Bank or which might materially and
adversely affect the ability of the Bank to perform its
obligations under the Pooling and Servicing Agreement or this
Agreement.
3. This Agreement and the Pooling and Servicing Agreement have
been duly authorized, executed and delivered by the Bank.
4. The execution, delivery and performance of this Agreement and
the Pooling and Servicing Agreement by the Bank and the
consummation of the transactions contemplated hereby and thereby,
do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Bank is a
party or by which the Bank is bound or to which any of the
property or assets of the Bank or any of its subsidiaries is
subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the
Bank , nor will such actions result in a violation of the
provisions of the charter or by-laws of the Bank or any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Bank or any of its
properties or assets, which breach or violation would have a
material adverse effect on the business, operations or financial
condition of the Bank.
5. There are not, to the best of such counsel's knowledge, any
actions, proceedings or investigations pending before or,
threatened by any court, administrative agency or other tribunal
to which the Bank is a party or of which any of its properties is
the subject: (a) which if determined adversely to the Bank would
have a material adverse effect on the business, results of
operations or financial condition of the Bank (b) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement
or the Certificates; (c) seeking to prevent the issuance of the
Certificates or the consummation by the Bank of any of the
transactions contemplated by this Agreement or the Pooling and
Servicing Agreement; or (d) which might materially and adversely
affect the performance by the Bank of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling
and Servicing Agreement, or the Certificates.
G. The Underwriters shall have received a favorable opinion, dated the
Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇, Esq., Associate General Counsel of
Mellon Bank Corporation, with respect to certain matters relating to
the Depositor, in form and substance satisfactory to the Underwriters,
to the effect that:
1. The Depositor has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business so requires. The Depositor has all power
and authority necessary to own or hold its properties and to
conduct the business in which it is engaged and to enter into and
perform its obligations under this Agreement and the Pooling and
Servicing Agreement, and to cause the Certificates to be issued.
2. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor
is a party or by which it or its properties may be bound, which
default might result in any material adverse changes in the
financial condition, earnings, affairs or business of the
Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor.
3. This Agreement and the Pooling and Servicing Agreement have
been duly authorized, executed and delivered by the Depositor.
4. The execution, delivery and performance of this Agreement and
the Pooling and Servicing Agreement by the Depositor, the
consummation of the transactions contemplated hereby and thereby,
and the issuance and delivery of the Certificates do not and will
not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor or any of its subsidiaries is subject,
which breach or violation would have a material adverse effect on
the business, operations or financial condition of the Depositor,
nor will such actions result in a violation of the provisions of
the certificate of incorporation or by-laws of the Depositor or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Depositor or any of its properties or assets, which breach or
violation would have a material adverse effect on the business,
operations or financial condition of the Depositor.
5. The direction by the Depositor to the Trustee to execute,
issue, authenticate and deliver the Certificates has been duly
authorized by the Depositor.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
of the United States is required for the issuance of the
Certificates, and the sale of the Certificates to the
Underwriters, or the consummation by the Depositor of the other
transactions contemplated by this Agreement and the Pooling and
Servicing Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be
required State securities or Blue Sky laws in connection with the
purchase and distribution of the Certificates by the Underwriters
or as have been previously obtained.
7. There are not, to the best of such counsel's knowledge, any
actions, proceedings or investigations pending with respect to
which the Depositor has received service of process before or,
threatened by any court, administrative agency or other tribunal
to which the Depositor is a party or of which any of its
properties is the subject: (a) which if determined adversely to
the Depositor would have a material adverse effect on the
business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of the Pooling and
Servicing Agreement, this Agreement or the Certificates; (c)
seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions
contemplated by the Pooling and Servicing Agreement or this
Agreement; or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the
validity or enforceability of, the Pooling and Servicing
Agreement, this Agreement or the Certificates.
Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Underwriters to the effect that no facts have come to the
attention of such counsel which lead them to believe that: (a)
the Registration Statement, at the time such Registration
Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained
or incorporated in the Registration Statement); or (b) the
Prospectus, as of its date and as of the Closing Date, contained
or contains an untrue statement of a material fact or omitted or
omits 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 (except as to financial or
statistical data contained or incorporated in the Prospectus).
H. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the
Underwriters, with respect to the issue and sale of the Certificates,
the Registration Statement, this Agreement, the Prospectus and such
other related matters as the Underwriters may reasonably require.
I. The Depositor and the Bank shall each have furnished to the
Underwriters a certificate, dated the Closing Date and signed by the
Chairman of the Board, the President or a Vice President of the
Depositor and the Bank, respectively, stating as it relates to each
such entity:
1. The representations and warranties made by such entity in this
Agreement and in the Pooling and Servicing Agreement are true and
correct as of the Closing Date; and such entity has complied with
all agreements contained herein which are to have been complied
with on or prior to the Closing Date.
2. The information contained in the Prospectus relating to such
entity and the Receivables is true and accurate in all material
respects and nothing has come to his or her attention that would
lead such officer to believe that the Registration Statement or
the Prospectus includes any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein not misleading.
In addition to the foregoing, the certificate of the Bank shall state
that the representations and warranties set forth in Sections 1 D, E,
F, G, H, L, M, O, P, Q and R are made by the Bank instead of the
Depositor and, modified as appropriate, are true as to the Bank as
though such representations and warranties were fully set forth in
such certificate.
J. The Underwriters shall have received a favorable opinion of counsel
to the Trustee, dated the Closing Date and in form and substance
satisfactory to the Underwriters, to the effect that:
1. The Trustee is a _____________________________ duly
incorporated, validly existing and in good standing under the
laws of ___________________.
2. The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and
Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement have been
duly authorized by all necessary corporate action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the
Trustee.
5. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
6. If the Trustee were acting as Servicer under the Pooling and
Servicing Agreement as of the date of such opinion, the Trustee
would have the full corporate trust power to perform the
obligations of the Servicer under the Pooling and Servicing
Agreement.
K. The Certificates shall have been rated in the categories and by the
rating agencies set forth in the Prospectus Supplement.
L. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any
of the conditions, herein contained, and all proceedings taken by the
Depositor in connection with the issuance and sale of the Certificates
as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
M. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States; or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets of
the United States shall be such) as to make it in each of the
instances set forth in clauses (i), (ii), (iii) and (iv) herein, in
the reasonable judgment of the Underwriters, impractical or
inadvisable to proceed with the public offering or delivery of the
Certificates on the terms and in the manner contemplated in the
Prospectus.
N. The Underwriters shall have received from KPMG Peat Marwick LLP,
certified public accountants, a letter dated the date of the
Prospectus Supplement and satisfactory in form and substance to the
Underwriters and their counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by the
Underwriters, as a result of which they determined that certain
information of an accounting, financial or statistical nature set
forth in the Prospectus Supplement agrees with the records of the
Depositor or the Bank, as applicable, excluding any questions of legal
interpretation.
O. The Underwriters shall have received evidence satisfactory to them
and counsel for the Underwriters that, on or before the Closing Date,
UCC-1 financing statements shall have been submitted to the Trustee,
for filing in the appropriate filing offices reflecting (1) the
transfer of the interest in the Receivables, certain other property
and the proceeds thereof (A) from the Seller to the Depositor and (B)
from the Depositor to the Trust, and (2) the grant of the security
interest by the Trust in the Receivables, certain other property and
the proceeds thereof to the Trustee.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
SECTION 7 PAYMENT OF EXPENSES. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the
Certificates and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of reproducing and distributing this Agreement; (e) the
fees and expenses of qualifying the Certificates under the securities laws of
the several jurisdictions designated by the Underwriters as provided in Section
5(G) hereof and of preparing, printing and distributing a Blue Sky Memorandum
and a Legal Investment Survey (including related fees and expenses of counsel to
the Underwriters); (f) any fees charged by securities rating services for rating
the Certificates; (g) the costs of the accountant's letter referred to in
Section 6(N) hereof; and (h) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses of
its counsel); provided that, except as provided in this Section 7, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Certificates which they may
sell and the expenses of advertising any offering of the Certificates made by
the Underwriters, and the Underwriters shall pay the cost of any accountant's
letters relating to any Investor Materials (as defined in Section 5(E) hereof).
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for
the Underwriters.
SECTION 8 INDEMNIFICATION AND CONTRIBUTION.
A. The Depositor agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Securities Act from and
against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases
and sales of the Certificates), to which such Underwriter or any such
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus, or any amendment thereof
or supplement thereto, or (iv) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall
reimburse such Underwriter and each such controlling person promptly
upon demand for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Depositor shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in the Prospectus, or any amendment thereof or supplement
thereto, or the Registration Statement, or any amendment thereof or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein. The foregoing
indemnity agreement is in addition to any liability which the
Depositor may otherwise have to any Underwriter or any controlling
person of any of such Underwriter. The only information furnished by
or on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement or the Prospectus is
described in Section 8(I) hereof.
B. Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Depositor, each of its directors, each of its
officers who signed the Registration Statement, and each person, if
any, who controls the Depositor within the meaning of Section 15 of
the Securities Act against any and all loss, claim, damage or
liability, or any action in respect thereof, to which the Depositor or
any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereof or
supplement thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) any untrue statement
or alleged untrue statement of a material fact contained in the
Prospectus, or any amendment thereof or supplement thereto, or (iv)
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of such Underwriter
specifically for inclusion therein, and shall reimburse the Depositor
and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Depositor or any director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Depositor or any such director,
officer or controlling person. The only information furnished by or on
behalf of the Underwriters for use in connection with the preparation
of the Registration Statement or the Prospectus is described in
Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section
8 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify any
indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the related Underwriter, if the
indemnified parties under this Section 8 consist of one or more Underwriters or
any of its or their controlling persons, or the Depositor, if the indemnified
parties under this Section 8 consist of the Depositor or any of the Depositor's
directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to the day on which the Prospectus Supplement is
required to be filed pursuant to Rule 424 with a copy of any Investor
Materials (as defined in Section 5(E) hereof) produced by such
Underwriter for filing with the Commission on Form 8-K.
E. Each Underwriter severally agrees, assuming all Seller Provided
Information is accurate and complete in all material respects, to
indemnify and hold harmless the Depositor, each of the Depositor's
directors, each of its officers who signed the Registration Statement,
and each person who controls the Depositor within the meaning of
Section 15 of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement of a material fact
contained in the Investor Materials provided by such Underwriter and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of an Underwriter under this Section 8(E) shall be in
addition to any liability which such Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable
to this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(A), (B) or (E) in respect of any
loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the related Underwriter
on the other from the offering of the related Certificates or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice
required under Section 8(C), 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 Depositor on the one hand and the
related Underwriter on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Depositor and an Underwriter shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the excess of (i)
the purchase price paid by investors to such Underwriter for the Certificates
sold by such Underwriter over (ii) the purchase price paid by such Underwriter
to the Depositor for such Offered Certificates (the "Spread").
The relative fault of the Depositor and an Underwriter shall be
determined by reference to whether the 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 Depositor or by such Underwriter, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of the Spread received by such Underwriter
in connection with the Offered Certificates purchased by it. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the term
"Investor Materials" means such portion, if any, of the information
delivered to the Depositor by such Underwriter pursuant to Section
8(D) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K
-- Investor Materials; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other
information) furnished to any Underwriter by or on behalf of the
Seller or Master Servicer concerning the assets comprising the
Trust.
▇. The Bank agrees to indemnify each indemnified party referred to in
Section 8(A) hereof with respect to Seller Provided Information to the
same extent as the indemnity granted under such section. The
procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(H).
I. Each Underwriter confirms that the information regarding such
Underwriter set forth in the last paragraph on the cover page of the
Prospectus Supplement, the information regarding such Underwriter set
forth under the caption "Underwriting" in the Prospectus Supplement
and such Underwriter's Investor Materials, if any (other than to the
extent such information is based on Seller Provided Information)
furnished by such Underwriter is correct, and the parties hereto
acknowledge that such information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement or the
Prospectus.
SECTION 9 REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Certificates to the Underwriters.
SECTION 10 DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters participating in the public offering of the Certificates
shall fail at the Closing Date to purchase the Certificates which it is (or they
are) obligated to purchase hereunder (the "Defaulted Certificates"), then the
non-defaulting Underwriters shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Certificates in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Underwriters have not completed such arrangements within
such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates
does not exceed 10% of the aggregate principal amount of the
Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be
obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to
the underwriting obligations of all such non-defaulting
Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Certificates
to be purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the part of any
non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11 TERMINATION OF AGREEMENT. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if any of the events or conditions described in Section 6(M)
of this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(H), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9, 12 and 15 shall remain in effect.
SECTION 12 OBLIGATIONS OF THE BANK. The Bank agrees with the
Underwriters, for the sole and exclusive benefit of each such Underwriter and
each person controlling such Underwriter within the meaning of the Securities
Act and not for the benefit of any assignee thereof or any other person or
persons dealing with such Underwriter, in consideration of and as an inducement
to their agreement to purchase the Certificates from the Depositor, to indemnify
and hold harmless each Underwriter against any failure by the Depositor to
perform its obligations to the Underwriters hereunder, including, without
limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof.
SECTION 13 NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to:
[Names and Addresses of Underwriters]
________________________________
________________________________
________________________________
________________________________
B. if to the Depositor, shall be delivered or sent by mail, telex
or facsimile transmission to:
Mellon Auto Receivables Corporation
One Mellon Bank Center
Fourth Floor
Pittsburgh, Pennsylvania 15258
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 14 PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15 SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION 16 DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflict of law rules thereof.
SECTION 18 COUNTERPARTS. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 19 HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
MELLON AUTO RECEIVABLES CORPORATION
By:_________________________________
Name:
Title:
MELLON BANK, N.A.
By:_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
______________________________________
By: __________________________________
Name:
Title:
______________________________________
By: __________________________________
Name:
Title:
SCHEDULE A
Initial Principal
Balance of
Underwriter Class A Certificates
----------- --------------------
____________________________...................... $
____________________________...................... $
Total............................................. $
Initial Principal
Balance of
Underwriter Class B Certificates
----------- --------------------
___________________________....................... $
___________________________....................... $
___________________________....................... $
Total............................................. $
Original
Principal
Security Balance $ Price % Price $ Rate %
-------- --------- ------- ------- ------
Class A Certificates
Class B Certificates
Total Price to Public: $
Total Price to Depositor: $
Underwriting Discounts
and Commissions: $