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CERTIFICATE PURCHASE AGREEMENT
among
THE PARTIES SET FORTH ON
THE SIGNATURE PAGES HEREOF
as Purchasers
SSC MASTER TRUST I
as Issuer
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES I LLC
as Seller
and
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
$59,518,980 7.80 % CLASS A STRUCTURED SETTLEMENT-BACKED PASS-THROUGH
TRUST CERTIFICATES, SERIES 1997-1
Dated as of June 13, 1997
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS..............................................................................................1
SECTION 1.01 Certain Defined Terms......................................................................1
SECTION 1.02 Other Definitional Provisions..............................................................2
ARTICLE II
PURCHASE AND SALE........................................................................................3
SECTION 2.01 Purchase and Sale of the Class A Certificates..............................................3
ARTICLE III.......................................................................................................3
CONDITIONS PRECEDENT TO
OBLIGATION OF THE PURCHASERS.............................................................................3
SECTION 3.01 Conditions.................................................................................3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER.............................................................5
SECTION 4.01 Reaffirmation..............................................................................6
SECTION 4.02 Authority, etc.............................................................................6
SECTION 4.03 Series 19971 Certificates..................................................................6
SECTION 4.04 Investment Company Act.....................................................................7
SECTION 4.05 Offering of Certificates...................................................................7
SECTION 4.06 Full Disclosure............................................................................7
SECTION 4.07 The Company; Seller Membership.............................................................7
SECTION 4.08 CUSIP No.; Brokerage Fees..................................................................7
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE............................................................7
SECTION 5.01 Pooling and Servicing Agreement............................................................8
SECTION 5.02 Authority, etc.............................................................................8
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER.........................................................8
SECTION 6.01 Representations and Warranties.............................................................8
ARTICLE VII
INDEMNIFICATION.........................................................................................17
SECTION 7.01 Indemnification by the Seller.............................................................17
ARTICLE VIII
MISCELLANEOUS...........................................................................................17
SECTION 8.01 Amendments; etc...........................................................................17
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SECTION 8.02 Notices...................................................................................17
SECTION 8.03 No Waiver; Remedies.......................................................................18
SECTION 8.04 Governing Law.............................................................................18
SECTION 8.05 No Proceedings............................................................................18
SECTION 8.06 WAIVER OF RIGHT TO JURY TRIAL.............................................................18
SECTION 8.07 Binding Effect............................................................................18
SECTION 8.08 Execution in Counterparts.................................................................18
SECTION 8.09 Survival..................................................................................18
SECTION 8.10 Limitations on Liability..................................................................19
SCHEDULE I -- ERISA Exceptions
SCHEDULE II -- Form of Benefit Plan Disclosure Letter
EXHIBIT A -- Form of Seller Order
EXHIBIT B -- Trustee Account Information
EXHIBIT C -- List of Closing Documents
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CERTIFICATE PURCHASE AGREEMENT (this "Agreement") dated as of
June 13, 1997, among THE PERSONS SET FORTH ON THE SIGNATURE PAGES HERETO AS
PURCHASERS (each a "Purchaser" and collectively the "Purchasers"), SSC MASTER
TRUST I, a trust organized under the laws of the State of Delaware (the
"Issuer"), ▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES I LLC, a Delaware limited liability
company (the "Seller"), and PNC BANK, NATIONAL ASSOCIATION, a national banking
association, not individually but solely in its capacity as trustee under the
Pooling and Servicing Agreement referred to below (in such capacity, the
"Trustee").
W I T N E S S E T H:
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WHEREAS, the Issuer has authorized and executed, and the Trustee has
authenticated, the Series 1997-1 Certificates in accordance with a Seller Order;
and
WHEREAS, subject to the terms and conditions of this Agreement and the
Series Supplement and pursuant to such Seller Order, the Issuer desires to sell
to the Purchasers, and the Purchasers desire to purchase from the Issuer, Class
A Certificates as hereafter provided;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used herein
(including in the preamble and recitals hereof) without definition shall have
the meanings set forth, or incorporated by reference, in the Series Supplement
or the Pooling and Servicing Agreement, as applicable. Additionally, the
following terms shall have the following meanings:
"Class A Certificates" has the meaning specified in Section 2.01(b)
hereof.
"Closing" has the meaning specified in Section 2.01(a) hereof.
"Closing Date" has the meaning specified in Section 2.01(a) hereof.
"Commitment" means, as to any Purchaser, the obligation of such
Purchaser to purchase Class A Certificates in an Aggregate Principal Balance
equal to the amount set forth opposite such Purchaser's name on the signature
pages hereto.
"Company" means ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. Limited Partnership, a Delaware
limited partnership.
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"Indemnified Losses" has the meaning specified in Section 7.01 hereof.
"Indemnified Party" has the meaning specified in Section 7.01 hereof.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of June 13, 1997 among ▇.▇. ▇▇▇▇▇▇▇▇▇ Receivables I LLC, as
the Seller, ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc., as the Initial Master Servicer, and
PNC Bank, National Association, as Trustee, as the same may be amended,
restated, modified or otherwise supplemented from time to time.
"PPM" has the meaning specified in Section 4.06 hereof.
"Preliminary PPM" has the meaning specified in Section 4.06 hereof.
"Purchase Price" has the meaning specified in Section 2.01(b) hereof.
"Purchaser Group" means the group of Purchasers set forth underneath
such heading on the signature pages hereto.
"Series Supplement" means the Series 1997-1 Supplement to the Pooling
and Servicing Agreement dated as of June 13, 1997 among the Seller, the Master
Servicer and the Trustee, as the same may be amended, restated, modified or
otherwise supplemented from time to time.
SECTION 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained herein shall control.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection,
Schedule, Exhibit and Appendix references contained in this Agreement are
references to Sections, subsections, Schedules, Exhibits and the Appendix in or
to this Agreement unless otherwise specified.
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ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Class A Certificates. (a) The
closing (the "Closing") of the purchase and sale of the Class A Certificates
shall take place at 10:00 a.m., New York time at the offices of Sidley & Austin,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on June 13, 1997, or if the
conditions to closing set forth in Article III of this Agreement shall not have
been satisfied or waived by such date, as soon as practicable after such
conditions shall have been satisfied or waived, or at such other time, date and
place as the parties shall agree upon (the date of the Closing being referred to
herein as the "Closing Date").
(b) On the Closing Date, pursuant to a Seller Order (a copy of which is
attached hereto as Exhibit A), the Issuer (acting through the Trustee) shall
issue, sell, transfer and deliver to each Purchaser, and each Purchaser
severally agrees to purchase at the Closing, Series 1997-1 Class A Certificates
(collectively, the "Class A Certificates") for a purchase price ("Purchase
Price") equal with respect to each Purchaser, such Purchaser's Commitment.
Without limiting any other provision of this Agreement, the obligation of each
Purchaser to purchase the Class A Certificates on the Closing Date is subject to
the satisfaction of the conditions precedent set forth in Article III hereof.
(c) The Purchase Price for each Class A Certificate shall be payable in
full at Closing and shall be made in immediately available funds in U.S. Dollars
to the account of the Trustee specified in Exhibit B hereto.
(d) On the Closing Date, the Trustee will deliver to each Purchaser a
Class A Certificate, dated the Closing Date, in the name of each such Purchaser
and in an original Principal Balance equal to the Purchase Price paid by such
Purchaser therefor, duly authenticated in accordance with the provisions of the
Pooling and Servicing Agreement against delivery by such Purchaser, to the
Seller of the Purchase Price for such Purchaser's respective Class A
Certificates in accordance with clause (c) above.
ARTICLE III
CONDITIONS PRECEDENT TO
OBLIGATION OF THE PURCHASERS
SECTION 3.01 Conditions. The obligation of any Purchaser to purchase
and pay for the Class A Certificates on the Closing Date is subject to the
satisfaction at the time of the Closing of the following conditions:
(a) Documents. Each of the documents on Exhibit C attached hereto has
been duly authorized, executed and delivered by the signatories thereto (other
than the Purchasers) and
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copies thereof (in form and substance satisfactory to the Control Party) have
been delivered to the Trustee.
(b) Performance of Obligations. All the terms, covenants, agreements
and conditions of the Pooling and Servicing Agreement, the Series Supplement,
the Seller Purchase Agreement, the Revolving Credit Agreement, the Intercreditor
Agreement and this Agreement to be complied with and performed by the Seller and
the Master Servicer for Series 1997-1 at or before the Closing shall have been
complied with and performed in all respects.
(c) Representations and Warranties. Each of the representations and
warranties of the Seller and the Master Servicer for Series 1997-1 made in the
Pooling and Servicing Agreement, the Series Supplement, the Seller Purchase
Agreement, the Revolving Credit Agreement, the Intercreditor Agreement and this
Agreement shall be true and correct in all material respects as of the time of
the Closing (except to the extent they expressly relate to an earlier or later
time).
(d) No Significant Event. On the Closing Date and after giving effect
to the purchase of Class A Certificates contemplated herein, no Significant
Event, Potential Significant Event or Series Significant Event (or any event or
condition which with the giving of notice or passage of time, or both, would
constitute a Series Significant Event) with respect to any Series shall have
occurred and be continuing at Closing or would result from the transactions
contemplated under the Operative Documents.
(e) Effectiveness of Operative Documents. The Operative Documents with
respect to Series 1997-1, including, without limitation, the Pooling and
Servicing Agreement, the Series Supplement and the Intercreditor Agreement,
shall become effective pursuant to their terms.
(f) Issuance of Class B Certificates. Prior to, or simultaneously with,
the purchase of the Class A Certificates by the Purchasers, the Class B
Certificates shall be issued and shall be executed and delivered by the Issuer
to the Seller.
(g) Documentation for Purchasers. Each Purchaser shall have received an
original signed copy of each certificate required to be delivered to the Trustee
or the Placement Agent in accordance with Section 5.01(a), (b) and (c) of the
Series Supplement.
(h) Opinions. Each Purchaser shall have received an original signed
copy of each opinion of counsel delivered on the Closing Date in connection with
the Pooling and Servicing Agreement and the Series Supplement.
(i) Rating of Certificates. Each Purchaser shall have received written
notice from the Rating Agencies that the Class A Certificates shall have been
rated by Duff & ▇▇▇▇▇▇ and ▇▇▇▇▇'▇ A and A2, respectively.
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(j) No Change in Financial Markets. There shall have not occurred at
any time on or after the date hereof any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; (iii) the outbreak or
material escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (iv) any
other change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls, but with respect to
any such event specified in clause (iii) or (iv) only if such event makes it
impracticable to proceed with the offering or the delivery of the Class A
Certificates on the terms and in the manner contemplated hereby.
(k) Legal Investment. At the Closing Date, (i) the Class A Certificates
to be purchased by each Purchaser will be a legal investment for such Purchaser
under the laws of each jurisdiction to which such Purchaser may be subject,
without resort to any so-called basket provision of said laws such as Section
1405(a)(8) of the New York Insurance Law, (ii) the purchase of and payment for
said Class A Certificates by each Purchaser will not violate any applicable law
or governmental regulation and shall not subject such Purchaser to any tax,
penalty, liability or other onerous condition under or pursuant to any
applicable law or regulation and (iii) each Purchaser shall have received such
certificates or other evidence as such Purchaser may reasonably request
supporting the foregoing.
(l) Other Purchasers. As to any Purchaser, each other Purchaser shall
have purchased and made payment for the aggregate principal amount of the Class
A Certificates to be purchased by such other Purchaser pursuant hereto.
(m) Other Documents. Each Purchaser shall have received such other
information, documents, certificates and opinions as any Purchaser or special
counsel may reasonably request, all in form and substance reasonably
satisfactory to the Person requesting the same.
If any condition specified in this Article III shall not have been
satisfied when and as required in this Agreement, any Purchaser may, by notice
to the Issuer at any time prior to the Closing Date, terminate such Purchaser's
obligation to purchase the Class A Certificates pursuant to this Agreement.
Notice of such termination shall be given to the Issuer in writing or by
telephone promptly confirmed in writing. Forthwith upon receipt of any such
termination notice, the Issuer shall give each other Purchaser written notice
thereof.
Upon the purchase and payment by the Purchasers of the Class A
Certificates, each of the conditions set forth in this Section 3.01 shall be
irrevocably deemed to have been satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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As of the Closing Date, the Seller hereby makes the following
representations and warranties to the Purchasers and the Trustee, on which the
Purchasers and the Trustee shall rely in purchasing the Class A Certificates.
SECTION 4.01 Reaffirmation. The Seller hereby remakes and reaffirms to
the Purchasers and the Trustee the representations and warranties of the Seller
set forth in Section 2.03 of the Pooling and Servicing Agreement and, with
respect to the Series 1997-1 Receivables, in Section 3.03 of the Series
Supplement and hereby represents and warrants that such representations and
warranties are true and correct in all material respects as of the date hereof
(unless such representations and warranties specifically refer to an earlier or
later date).
SECTION 4.02 Authority, etc. (a) The execution, delivery and
performance by the Seller of this Agreement, and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any Lien, charge or encumbrance upon any of the
property or assets of the Seller or any of its Affiliates pursuant to the terms
of, any indenture, mortgage, deed of trust, loan agreement or other agreement
(excluding this Agreement) or instrument to which it or any of its Affiliates is
bound or to which any of its property or assets is subject, nor will such action
result in any violation of any Requirement of Law applicable to the Seller,
except, in each case, where such conflict, breach, default, creation or
imposition of any Lien or violation does not have, and could not reasonably be
expected to have, a Material Adverse Effect.
(b) All approvals, authorizations or consents of any Person or of any
Governmental Authority required to be obtained by the Seller in connection with
the execution and delivery of this Agreement by the Seller or the consummation
by the Seller of the transactions contemplated hereby have been obtained.
(c) This Agreement has been duly authorized, executed and delivered by
the Seller and this Agreement is the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, subject as
to enforcement of bankruptcy, receivership, conservatorship, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
SECTION 4.03 Series 1997-1 Certificates. The Seller has duly and
validly authorized and instructed the Trustee to execute, authenticate, sell
and/or distribute the Series 1997-1 Certificates in accordance with the terms of
the Pooling and Servicing Agreement and the Series Supplement. The Series 1997-1
Certificates, when executed and authenticated by the Trustee in accordance with
the terms of the Pooling and Servicing Agreement and the Series Supplement and,
in the case of the Class A Certificates delivered to the Purchasers and paid for
by the Purchasers in accordance with this Agreement or in the case of the Class
B Certificates delivered to the Seller in partial consideration for the Transfer
of the Series 1997-1 Trust Property in accordance with the Seller Order, will be
duly and validly issued and outstanding, and will be entitled to the benefits of
the Pooling and Servicing Agreement and the Series Supplement.
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SECTION 4.04 Investment Company Act. As of the Closing Date, neither
the Trust nor the Seller is, nor would the issuance of the Series 1997-1
Certificates pursuant to the terms hereof and of the Pooling and Servicing
Agreement and Series Supplement cause the Trust or the Seller to become, an
"investment company" or controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4.05 Offering of Certificates. Assuming all of the
representations and warranties of each Purchaser in Article VI hereof and in any
other certificate delivered by the Purchaser on the Closing Date are true and
correct in all material respects, the offer and sale of the Series 1997-1
Certificates pursuant to the terms hereof and of the Pooling and Servicing
Agreement and Series Supplement are not required to be registered under Section
5 of the Act pursuant to Section 4(2) of the Act.
SECTION 4.06 Full Disclosure. All written factual information
heretofore furnished by the Seller to the Trustee and the Purchasers (including,
without limitation, the Confidential Private Placement Memorandum dated June 11,
1997 (the "PPM") but specifically excluding any earlier draft of the PPM
including the Preliminary Confidential Placement Memorandum, ("Preliminary PPM")
dated June 5, 1997) for the purposes of or in connection with this Agreement and
the offer and sale of the Series 1997-1 Certificates was true and correct in all
material respects and did not fail to state any material fact or statement which
would make any such information materially misleading in light of the
circumstances in which any such disclosure was made, in either case, on the date
as of which such information was stated or certified and remains true and
correct in all material respects as of the time of Closing.
SECTION 4.07 The Company; Seller Membership. To the best of Seller's
knowledge after due inquiry, the Company is and will be solvent and able to pay
its debts as they come due, and has and will have adequate capital. On the date
hereof the Seller's sole members are (i) the Company, (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
(iii) ▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION 4.08 CUSIP No.; Brokerage Fees. The Corporate CUSIP Number for
the Class A Certificates is 7846SE. In marketing, distributing and selling the
Series 1997-1 Certificates, the Seller has not used the services of any broker,
dealer, underwriter or placement agent other than ING Baring (U.S.) Securities,
Inc. ("ING Barings") and no sales commissions, underwriting fees or other
similar amounts are payable to any Person other than ING Barings, as Placement
Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE
As of the Closing Date, the Trustee makes the following representations
and warranties to the Purchasers, on which the Purchasers shall rely in
purchasing the Class A Certificates.
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SECTION 5.01 Pooling and Servicing Agreement. The Trustee hereby
remakes and reaffirms to the Purchasers the representations and warranties of
the Trustee set forth in Section 11.14 of the Pooling and Servicing Agreement,
and hereby further represents and warrants that such representations and
warranties are true and correct as of the date hereof (unless such
representations and warranties specifically refer to an earlier or later date).
SECTION 5.02 Authority, etc. (a) The Trustee has full power, authority
and right to execute, deliver and perform the Pooling and Servicing Agreement
and the Series Supplement and to execute, authenticate and deliver the Series
1997-1 Certificates.
(b) The Pooling and Servicing Agreement, the Series Supplement and the
Series 1997-1 Certificates have each been duly executed by the Trustee, and each
of the Pooling and Servicing Agreement and the Supplement constitutes the legal,
valid and binding obligation of the Trustee, enforceable against the Trustee in
accordance with its respective terms, except as such enforceability may be
subject to bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally, and except as such enforceability may be limited by
general principles of equity (whether considered in a suit in equity or at law).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER
SECTION 6.01 Representations and Warranties. For so long as any
Purchaser shall hold any Class A Certificate, such Purchaser hereby represents
and warrants to each of the Trustee, the Trust, the Placement Agent, the Master
Servicer and the Seller, that:
(a) (i) it has made its own independent evaluation of the risks and
merits of purchasing the Class A Certificates and has had the opportunity to ask
questions and to obtain such information as it has deemed appropriate to make an
informed investment decision regarding the Class A Certificates and (ii) it has
not relied on the Preliminary PPM (or any earlier version) or any of the
information contained therein in making its investment decision regarding the
Class A Certificates.
(b) The Purchaser is an "accredited investor" as defined in Rule 501
(a)(1) or (3) of Regulation D (an "Institutional Accredited Investor")
promulgated by the Securities and Exchange Commission (the "Commission") under
the Act, has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of its investment in the Class
A Certificates and is aware that it may be required to, and is able to, bear the
economic risk of such investment for an indefinite period of time.
(c) The Purchaser understands that the Class A Certificates have not
been and will not be registered under the Act, and have not and will not be
registered or qualified under any applicable "Blue Sky" law, and that the
offering and sale of the Class A Certificates has not been reviewed by, passed
on or submitted to any federal or state agency or commission,
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securities exchange or other regulatory body. The Purchaser further understands
that the Class A Certificates may not be offered, sold, transferred, pledged,
hypothecated or otherwise disposed of except as permitted herein and under the
Pooling and Servicing Agreement and the Series Supplement.
(d) The Purchaser is acquiring the Class A Certificates for its own
account, for investment, and without a view to any distribution, resale or other
transfer thereof except as contemplated in the following provisions.
(i) The Purchaser will not resell or otherwise transfer any of the Class A
Certificates unless such resale or transfer is made:
(A) to the Seller;
(B) in the United States of America to Institutional Accredited
Investors (or, in the case of any such sale to an Affiliated Entity
or the Company or an Affiliate thereof, to an Accredited Investor)
in a transaction exempt from the registration requirements of the
Act and to whom such sale or transfer is being made pursuant to an
available exemption from the registration requirements of
applicable state securities laws, in any case, upon delivery to the
Trustee and the Seller (or any designated agent of either of the
foregoing) of an Investor Letter and, if requested by the Trustee
and/or the Seller, an opinion confirming the availability of such
exemptions to any such sale or transfer, rendered by a nationally
recognized law firm and in form and substance satisfactory to the
Trustee and/or the Seller, as the case may be;
(C) in the United States of America to a transferee that such Purchaser
reasonably believes is a Qualified Institutional Buyer purchasing
such Class A Certificates for its own account or for the account of
another Person that is a Qualified Institutional Buyer in a
transaction exempt from the registration requirements of the Act
pursuant to Rule 144A thereunder, and which transferee is aware
that the proposed sale or transfer is being made in reliance on
Rule 144A under the Act and to whom such sale or transfer is being
made pursuant to an available exemption from the registration
requirements of applicable state securities laws, in any case, upon
delivery to the Trustee and the Seller (or any designated agent of
either of the foregoing) of an Investor Letter and, if requested by
the Trustee and/or the Seller, an opinion confirming the
availability of such exemptions to any such sale or transfer,
rendered by a nationally recognized law firm and in form and
substance satisfactory to the Trustee and/or the Seller, as the
case may be; or
(D) in the United States of America to a transferee to whom such sale
or transfer is being made in reliance on Rule 144 under the Act and
to whom
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such sale or transfer is being made pursuant to an available
exemption from the registration requirements of applicable state
securities laws, in any case, upon delivery to the Trustee and the
Seller (or any designated agent of either of the foregoing) of an
Investor Letter and, if requested by the Trustee and/or the Seller,
an opinion confirming the availability of such exemptions to any
such sale or transfer, rendered by a nationally recognized law firm
and in form and substance satisfactory to the Trustee and/or the
Seller, as the case may be, and
(E) in any event, the Certificate Registrar and Transfer Agent shall
have received, prior to the date of any such proposed sale or
transfer, a written instrument of sale executed by the Trustee.
(ii) The Class A Certificates shall bear a legend regarding the
restrictions on transfer as set forth herein which shall be
substantially to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY ACCEPTING
THIS CERTIFICATE, AGREES THAT THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAWS AND ONLY:
(A) TO ▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES I LLC (THE "SELLER");
(B) IN THE UNITED STATES OF AMERICA TO AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1) OR (3) OF REGULATION D PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE ACT ("REGULATION D")
(OR, IN THE CASE OF A SALE TO ▇. ▇. ▇▇▇▇▇▇▇▇▇ & COMPANY, INC. (THE
"COMPANY") OR ANY OF ITS DIRECT AND INDIRECT SUBSIDIARIES AND
AFFILIATES, OR TO ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. LIMITED PARTNERSHIP (THE
"PARTNERSHIP") OR AN AFFILIATE THEREOF, TO AN "ACCREDITED INVESTOR"
AS DEFINED IN RULE 501(a) OF REGULATION D) IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND TO WHOM SUCH SALE
OR TRANSFER IS BEING MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS,
IN ANY CASE, UPON DELIVERY TO PNC BANK, NATIONAL ASSOCIATION OR ANY
SUCCESSOR (THE "TRUSTEE") AND THE SELLER (OR ANY DESIGNATED AGENT
OF EITHER OF THE
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FOREGOING) OF AN INVESTOR LETTER AND, IF REQUESTED BY THE TRUSTEE
AND/OR THE SELLER, AN OPINION CONFIRMING THE AVAILABILITY OF SUCH
EXEMPTIONS TO ANY SUCH SALE OR TRANSFER, RENDERED BY A NATIONALLY
RECOGNIZED LAW FIRM AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND/OR THE SELLER, AS THE CASE MAY BE;
(C) IN THE UNITED STATES OF AMERICA TO A TRANSFEREE THAT SUCH PURCHASER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE
MEANING OF RULE 144A UNDER THE ACT (A "QUALIFIED INSTITUTIONAL
BUYER") PURCHASING SUCH SERIES 1997-1 CERTIFICATES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON THAT IS A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A THEREUNDER, AND WHICH
TRANSFEREE IS AWARE THAT THE PROPOSED SALE OR TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A UNDER THE ACT AND TO WHOM SUCH SALE
OR TRANSFER IS BEING MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS,
IN ANY CASE, UPON DELIVERY TO THE TRUSTEE AND THE SELLER (OR ANY
DESIGNATED AGENT OF EITHER OF THE FOREGOING) OF AN INVESTOR LETTER
AND, IF REQUESTED BY THE TRUSTEE AND/OR THE SELLER, AN OPINION
CONFIRMING THE AVAILABILITY OF SUCH EXEMPTIONS TO ANY SUCH SALE OR
TRANSFER, RENDERED BY A NATIONALLY RECOGNIZED LAW FIRM AND IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND/OR THE SELLER, AS THE
CASE MAY BE; OR
(D) IN THE UNITED STATES OF AMERICA TO A TRANSFEREE TO WHOM SUCH SALE
OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144 UNDER THE ACT AND
TO WHOM SUCH SALE OR TRANSFER IS BEING MADE PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
APPLICABLE STATE SECURITIES LAWS, IN ANY CASE, UPON DELIVERY TO THE
TRUSTEE AND THE SELLER (OR ANY DESIGNATED AGENT OF EITHER OF THE
FOREGOING) OF AN INVESTOR LETTER AND, IF REQUESTED BY THE TRUSTEE
AND/OR THE SELLER, AN OPINION CONFIRMING THE AVAILABILITY OF SUCH
EXEMPTIONS TO ANY SUCH SALE OR TRANSFER, RENDERED BY A NATIONALLY
RECOGNIZED LAW FIRM AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND/OR THE SELLER, AS THE CASE MAY BE.
-11-
EACH CERTIFICATEHOLDER (OTHER THAN THE SELLER OR THE PARTNERSHIP),
BY ACCEPTING A BENEFICIAL INTEREST IN THIS CERTIFICATE, FURTHER REPRESENTS AND
WARRANTS FOR THE BENEFIT OF THE SELLER, THE COMPANY AS THE MASTER SERVICER, SSC
MASTER TRUST I (THE "TRUST"), ING BARING (U.S.) SECURITIES, INC. AS THE
PLACEMENT AGENT AND THE TRUSTEE THAT SUCH CERTIFICATEHOLDER IS NOT AND WILL NOT
BECOME AN ENTITY THAT, FOR FEDERAL INCOME TAX PURPOSES, IS A PARTNERSHIP,
GRANTOR TRUST OR S CORPORATION (ANY OF WHICH (OTHER THAN THE SELLER OR THE
PARTNERSHIP, A "PASS THROUGH ENTITY") FOR SO LONG AS SUCH A CERTIFICATEHOLDER
HOLDS A BENEFICIAL INTEREST IN THIS CERTIFICATE .
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR SOLD, TRADED OR
TRANSFERRED TO (A) ANY PERSON WHO IS NOT A "UNITED STATES PERSON" WITHIN THE
MEANING OF SECTION 7701(a)(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), (B) ANY PASS-THROUGH ENTITY, (C) ANY PERSON THAT IS, OR IS
REQUIRED TO BE (REGARDLESS OF WHETHER IT IN FACT IS), REGISTERED AS AN
INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT OR IS EXCLUDED FROM THE
DEFINITION OF "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT CONTAINED IN
SECTION 3(c)(1) OR SECTION 3(c)(7) THEREOF, IN EACH CASE, TO THE EXTENT THAT
SUCH PERSON WOULD BENEFICIALLY OWN, AT THE TIME OF (AND AFTER GIVING EFFECT TO)
SUCH TRANSFER, 10% OR MORE OF EITHER (1) THE AGGREGATE PRINCIPAL BALANCE OF THE
SERIES 1997-1 CERTIFICATES OUTSTANDING AT SUCH TIME OR (2) THE AGGREGATE
PRINCIPAL BALANCE OF ALL CERTIFICATES OF ALL SERIES OUTSTANDING AT SUCH TIME,
(D) ANY OTHER PERSON WHICH FOR PURPOSES OF THE INVESTMENT COMPANY ACT (X) WAS
FORMED FOR THE PURPOSE OF INVESTING IN THE CERTIFICATES ISSUED BY THE TRUST OR
WOULD OTHERWISE BE TREATED AS MORE THAN ONE PERSON FOR PURPOSES OF DETERMINING
THE NUMBER OF BENEFICIAL OWNERS OF THE CERTIFICATES ISSUED BY THE TRUST, OR (Y)
WOULD CAUSE THE NUMBER OF BENEFICIAL OWNERS OF SECURITIES ISSUED BY THE TRUST
(OTHER THAN SHORT TERM PAPER) TO EXCEED 100, (E) ANY PERSON IN RESPECT OF WHICH
THE PURCHASE OR HOLDING THEREOF WOULD CONSTITUTE A "PROHIBITED TRANSACTION"
UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")
OR SECTION 4975 OF THE CODE OR WOULD CAUSE THE ASSETS OF THE TRUST TO BE DEEMED
TO BE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" FOR PURPOSES OF ERISA OR TO BE
ASSETS OF A "PLAN" FOR PURPOSES OF SECTION 4975 OF THE CODE OR (F) ANY PERSON IF
SUCH SALE, TRANSFER OR CONVEYANCE WOULD CAUSE THE TRUST TO HAVE MORE THAN 85
BENEFICIAL OWNERS OF THE CERTIFICATES (OTHER THAN THE SELLER, THE PARTNERSHIP OR
ANY AFFILIATE THEREOF) AFTER
-12-
APPLICATION OF APPLICABLE OWNERSHIP AND ANTI-AVOIDANCE RULES UNDER SECTION 7704
OF THE CODE AND THE TREASURY REGULATIONS THEREUNDER OR WOULD CAUSE THE TRUST (OR
ANY PORTION THEREOF) TO BE CLASSIFIED AS A PUBLICLY TRADED PARTNERSHIP FOR
FEDERAL INCOME TAX PURPOSES (AND IN EACH OF THE CASES IN CLAUSES (A), (B), (C),
(D) (OTHER THAN SUBCLAUSE (Y) THEREOF) AND (E) EACH PROSPECTIVE PURCHASER SHALL
BE REQUIRED TO REPRESENT AND WARRANT THAT IT IS NOT SUCH A PERSON PRIOR TO ITS
PURCHASE OF ANY SERIES 1997-1 CERTIFICATES AND TO THE EXTENT ANY SUCH
REPRESENTATION AND WARRANTY IS INCORRECT SUCH SALE SHALL BE RESCINDED AND DEEMED
NOT TO HAVE OCCURRED).
THIS CERTIFICATE MAY NOT BE ACQUIRED, SOLD, TRADED OR TRANSFERRED,
NOR MAY AN INTEREST IN THIS CERTIFICATE BE MARKETED, ON OR THROUGH (1) AN
"ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b)(1) OF THE
CODE AND ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATION THEREUNDER,
INCLUDING, WITHOUT LIMITATION, AN OVER-THE-COUNTER MARKET OR AN INTERDEALER
QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS OR (II)
A "SECONDARY MARKET" WITHIN THE MEANING OF SECTION 7704(b)(2) OF THE CODE AND
ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATION THEREUNDER, INCLUDING A
MARKET WHEREIN INTERESTS IN THE CERTIFICATES ARE REGULARLY QUOTED BY ANY PERSON
MAKING A MARKET IN SUCH INTERESTS AND A MARKET WHEREIN ANY PERSON REGULARLY
MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTERESTS IN THE
CERTIFICATES AND STANDS READY TO EFFECT BUY OR SELL TRANSACTIONS AT THE QUOTED
PRICES FOR ITSELF OR ON BEHALF OF OTHERS.
EACH CERTIFICATEHOLDER (INCLUDING ANY TRANSFEREE OF ANY LEGAL OR
BENEFICIAL INTEREST THEREIN) REPRESENTS AND WARRANTS FOR THE BENEFIT OF THE
SELLER, THE MASTER SERVICER, THE TRUST, THE PLACEMENT AGENT AND THE TRUSTEE
THAT, EITHER (I) THE CERTIFICATEHOLDER IS NOT AN "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN ERISA, WHETHER OR NOT SUBJECT TO ERISA, OR A "PLAN" AS DEFINED IN
SECTION 4975 OF THE CODE OR ANY PERSON WHICH IS DIRECTLY OR INDIRECTLY
PURCHASING OR HOLDING THE CERTIFICATE OR ANY INTEREST THEREIN ON BEHALF OF, OR
WITH ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN OR (II) THE
CERTIFICATEHOLDER (OR TRANSFEREE, AS THE CASE MAY BE), AT ITS EXPENSE, HAS
DELIVERED TO THE TRUSTEE AND THE SELLER A CERTIFICATION OF FACTS AND IF
REQUESTED BY THE TRUSTEE, AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE TO
PERMIT THE DETERMINATION BY THE TRUSTEE THAT THE PURCHASE AND HOLDING OF A
CERTIFICATE BY SUCH
-13-
CERTIFICATEHOLDER (OR TRANSFEREE, AS THE CASE MAY BE) WILL NOT RESULT IN ANY OF
(X) THE ASSETS OF THE TRUST BEING DEEMED FOR ANY PURPOSES OF ERISA, OR SECTION
4975 OF THE CODE, TO CONSTITUTE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO
TITLE I OF ERISA OR ANY "PLAN" AS DEFINED IN SECTION 4975 OF THE CODE, (Y) A
NON-EXEMPT "PROHIBITED TRANSACTION" UNDER, AND AS DEFINED IN, SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR (Z) THE IMPOSITION ON THE TRUSTEE, THE
TRUST, THE PLACEMENT AGENT, THE MASTER SERVICER OR THE SELLER OF ANY OBLIGATION
IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT."
(iii) The Purchaser will not sell, transfer or otherwise convey
Class A Certificates to (A) any Foreign Person, (B) any
Pass-Through Entity, (C) any Person that is, or is required
to be (regardless of whether it in fact is), registered as an
investment company under the Investment Company Act or is
excluded from the definition of "investment company" under
the Investment Company Act contained in Section 3(c)(1) or
Section 3(c)(7) thereof, in each case, to the extent that
such Person would beneficially own, at the time of (and after
giving effect to) such transfer, 10% or more of either (1)
the Aggregate Principal Balance of the Series 1997-1
Certificates outstanding at such time or (2) the Aggregate
Principal Balance of all Certificates of all Series
outstanding at such time, (D) any other Person which for
purposes of the Investment Company Act (x) was formed for the
purpose of investing in the Certificates or would otherwise
be treated as more than one Person for purposes of
determining the number of beneficial owners of the
Certificates issued by the Trust, or (y) would cause the
number of beneficial owners of securities issued by the Trust
(other than short term paper) to exceed 100, (E) any Person
in respect of which the purchase or holding thereof would
constitute a "prohibited transaction" under ERISA or Section
4975 of the Internal Revenue Code or would cause the assets
of the Trust to be deemed to be assets of any "Employee
Benefit Plan" for purposes of ERISA or to be assets of a
"Plan" for purposes of Section 4975 of the Internal Revenue
Code or (F) any Person if such sale, transfer or conveyance
would cause the Trust to have more than 85 beneficial owners
of the Certificates (other than the Seller, the Company or
any Affiliate thereof) after application of applicable
ownership and anti-avoidance rules under Section 7704 of the
Internal Revenue Code and the Treasury Regulations thereunder
or would cause the Trust (or any portion thereof) to be
classified as a publicly traded partnership for Federal
income tax purposes (and in each of the cases in clauses (A),
(B), (C), (D) (other than subclause (y) thereof) and (E) each
prospective purchaser shall be required to represent and
warrant that it is not such a Person prior to its purchase of
any Class A Certificates and to the extent any such
representation and warranty is incorrect such sale shall be
rescinded and deemed not to have occurred).
-14-
(iv) Each Purchaser will notify any prospective purchaser, pledgee
or other transferee of any Class A Certificates from such
Purchaser of the transfer restrictions referred to in this
Section 6.01(h).
It is hereby understood and agreed that the disposition of the
Class A Certificates shall remain solely within the control of the Class A
Certificateholders.
(e) The Purchaser hereby represents and warrants that either (i)
the Purchaser (or any Person for whose account the Purchaser is purchasing the
Class A Certificates) is not an "employee benefit plan" as defined in ERISA,
whether or not subject to ERISA, or a "plan" as defined in section 4975 of the
Internal Revenue Code or any person which is directly or indirectly purchasing
or holding the Certificate or any interest therein on behalf of, or with assets
of, any such employee benefit plan or plan or (ii) the acquisition, holding
and/or continued ownership of the Class A Certificates by the Purchaser (or
transferee, as the case may be) will not (x) result in the assets of the Trust
being deemed for any purpose of ERISA or Section 4975 of the Internal Revenue
Code to constitute assets of any "employee benefit plan" subject to Title I of
ERISA or any "plan" as defined in Section 4975 of the Internal Revenue Code, (y)
subject the Trustee, the Trust or the Seller to any obligation in addition to
those undertaken in the Pooling and Servicing Agreement or (z) result in a
"prohibited transaction" under, and as defined in, ERISA or Section 4975 of the
Internal Revenue Code by virtue of the applicability with respect thereto, as of
the date of the Purchaser's (or transferee's, as the case may be) purchase of
the Class A Certificates and at all times thereafter while the Purchaser (or
transferee, as the case may be) owns or holds any of the Class A Certificates,
of one of the Prohibited Transaction Class Exemptions or the Exception set forth
on the attached Schedule I, designated on such Schedule by the Purchaser (or
transferee, as the case may be) and upon the request of the Trustee or the
Seller, such Purchaser (or transferee, as the case may be) will at its own
expense, deliver an opinion of counsel to such effect, to the Trustee and the
Seller. In the event that the Purchaser (or any transferee of any legal or
beneficial interest therein) is relying on clause (ii) of the preceding
sentence, the Purchaser (or such transferee, as the case may be) must deliver to
the Trustee the Benefit Plan Disclosure Letter attached hereto as Schedule II.
(f) The Purchaser hereby represents and warrants and covenants that
(i) it is not a Foreign Person;
(ii) it is not a Pass-Through Entity and by accepting a
beneficial interest in the Class A Certificates, the
Purchaser agrees that it will not become a Pass Through
Entity for so long as the Purchaser holds a beneficial
interest in any Class A Certificates;
(iii) it is not registered, nor is it required to be
registered, as an investment company under the
Investment Company Act, and does not rely on the
exclusion from the definition of "investment company"
contained in Section 3(c)(1) or 3(c)(7) of the
Investment Company Act to avoid such registration;
-15-
(iv) after giving effect to the purchase of Class A
Certificates contemplated hereby, Purchaser will
beneficially own:
(a) that dollar amount set forth next to its name on the
signature pages hereto of the Aggregate Principal
Balance of the Class A Certificates; and
(b) that dollar amount set forth next to its name on the
signature pages hereto of the Aggregate Principal
Balance of all Certificates of all Series.
and
(v) for purposes of the Investment Company Act, it has not
been formed for the purpose of investing in the
Certificates and it would not be otherwise treated as
more than one Person for purposes of determining the
number of beneficial owners of the Certificates issued
by the Trust.
(g) The Purchaser will not acquire, sell, trade or transfer, nor
will it market an interest in the Class A Certificate, on or through (i) an
"Established Securities Market" within the meaning of Section 7704(b)(1) of the
Internal Revenue Code and any proposed, temporary or final Treasury Regulation
thereunder, including, without limitation, an over-the-counter market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations or (ii) a "Secondary Market" within the meaning of Section 7704(b)(2)
of the Internal Revenue Code and any proposed, temporary or final Treasury
Regulation thereunder, including a market wherein interests in the Class A
Certificates are regularly quoted by any Person making a market in such
interests and a market wherein any Person regularly makes available bid or offer
quotes with respect to interests in the Certificates and stands ready to effect
buy or sell transactions at the quoted prices for itself or on behalf of others.
(h) The Purchaser represents and warrants unless it has otherwise
specified to the Seller, the Trustee and the Placement Agent prior to such
Purchaser's purchase of any of the Class A Certificates, that the Purchaser is
not acting in a fiduciary capacity in purchasing the Class A Certificates.
(i) The Purchaser will not sell, transfer or otherwise convey any
Class A Certificate (or beneficial interest therein) to any Person unless the
Purchaser confirms that, after giving effect to such sale, transfer or
conveyance, the number of current holders of such Class A Certificate (or
beneficial interests therein) including the Purchaser plus the number of the
current holders of all other Class A Certificates (or beneficial interest
therein) that either were originally issued to such Purchaser or any other
member of such Purchaser's Purchaser Group, on June 13, 1997 (the "Original
Certificates") or were issued after June 13, 1997 but which relate to the
Original Certificates, would exceed either the number of permitted holders set
forth opposite such Purchaser's signature on the signature pages hereof or
beneath the "Purchaser Group" heading related to such Purchaser on the signature
pages hereof.
-16-
ARTICLE VII
INDEMNIFICATION
SECTION 7.01 Indemnification by the Seller. Without limiting any other
rights which the Purchaser may have hereunder or under applicable law, but
without duplication, the Seller hereby agrees to indemnify the Purchaser and the
Trustee and each such Person's permitted successors and assigns and all
officers, directors, agents and employees of the foregoing (each of the
foregoing Persons being individually referred to herein as an "Indemnified
Party") from and against any and all damages, losses, claims, judgments,
liabilities and related costs and expenses, including reasonable attorneys' fees
and disbursements, awarded against or incurred by any Indemnified Party relating
to or resulting from or in connection with a breach of Seller's representations
hereunder or the failure by the Seller to comply with (i) any term, provision or
covenant contained in this Agreement, the Pooling and Servicing Agreement or the
Series Supplement, or (ii) any agreement executed in connection therewith or
with any applicable law, rule or regulation with respect thereto (all of the
foregoing losses being called the "Indemnified Losses").
Any Indemnified Amounts payable by the Seller under this Section 7.01
shall be payable solely from Available Seller Funds and be paid by the Seller to
the Purchaser within five (5) Business Days following the Purchaser's written
demand therefor, setting forth in reasonable detail the basis for such demand.
The agreements of the Seller contained in this Section 7.01 shall survive the
Closing Date. In addition, in no event shall Indemnified Losses include any
consequential, special or punitive damages. Nothing in this Section 7.01 shall
require the Seller to pay Indemnified Amounts if after payment thereof the
Seller would be insolvent or fail to maintain a net worth sufficient to carry on
its business as then being conducted and pay its debts as they generally become
due. The provisions of this Section 7.01 shall survive the termination of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments; etc. No amendment or waiver of any provision
of this Agreement shall in any event be effective unless the same shall be in
writing and signed by the Seller, the Trustee and each affected Purchaser, and
then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 8.02 Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (excluding telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address set forth below its name on the signature pages
hereto or at such other address as such party may hereafter specify for the
purposes of notice to such party. Each such notice or other communication shall
-17-
be effective (i) if given by mail, three (3) Business Days following such
posting, postage prepaid, U.S. certified or registered, (ii) if given by
overnight courier, one (1) Business Day after deposit thereof with a national
overnight courier service, or (iii) if given by any other means, when received
at the address specified on the signature pages hereof.
SECTION 8.03 No Waiver; Remedies. No failure on the part of any party
hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE.
SECTION 8.05 No Proceedings. Each of the Seller, the Trustee and each
Purchaser, by entering into this Agreement, covenant and agree that they will
not at any time institute against, or join any other Person in instituting
against, the Seller or the Trust any bankruptcy, reorganization, arrangement,
insolvency, or liquidation or other similar proceedings under any federal or
state bankruptcy, insolvency or other similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar Person
for the Seller or the Trust or any substantial portion of their respective
assets until, in each case, one year and one day after the Collection Date of
the last outstanding Series.
SECTION 8.06 WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (WHETHER IN
CONTRACT OR IN TORT) ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THE
TRANSACTIONS CONTEMPLATED HEREIN AND/OR IN THE POOLING AND SERVICING AGREEMENT
OR THE SERIES SUPPLEMENT AND FOR ANY COUNTERCLAIM RELATING THERETO.
SECTION 8.07 Binding Effect. This Agreement shall be binding upon, and
shall inure to the benefit of, each of the parties hereto and each of their
respective successors and assigns.
SECTION 8.08 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
SECTION 8.09 Survival. All representations, warranties, covenants,
guaranties and indemnifications contained in this Agreement and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the sale and transfer of the Class A Certificates.
-18-
SECTION 8.10 Limitations on Liability. (a) Notwithstanding any
provision to the contrary in this Agreement, indemnification payments and other
amounts described herein as payable by the Seller hereunder, whether following
demand, within a specified time period or otherwise shall only be payable from
Available Seller Funds (and, as a result, may be payable from any Trust Asset
only if, to the extent that, and after such Trust Asset shall have been
distributed to the Seller in accordance with the terms of the Pooling and
Servicing Agreement and the Series Supplement). Unless and until Available
Seller Funds become available to pay any such amount, such amount shall not be
due and payable until a year and a day after the Collection Date for the last
then outstanding Series.
(b) None of the members, managers, officers, employees,
agents, stockholders, holders of limited liability company interests, officers
or directors of or in the Seller or any such holders, past, present or future,
shall be under any liability to the Trust, the Trustee, the Purchasers or any
other Person for any action taken or for refraining from the taking of any
action in such capacities or otherwise pursuant to this Agreement or for any
obligation or covenant under this Agreement, it being understood that, with
respect to the Seller, this Agreement and the obligations created thereunder and
hereunder shall be, to the fullest extent permitted under applicable law, solely
the limited liability company obligations of the Seller. The Seller and any
member, manager, officer, employee, agent, stockholder, holder of limited
liability company interest, officer or director of or in the Seller, may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (other than the Seller or any Affiliate thereof)
respecting any matters arising hereunder.
* * * *
-19-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
SELLER: ▇. ▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES I LLC
-------
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. Limited Partnership, a
member
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ Structured Settlement Funding
Corporation, its General Partner
By: _________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:____________________
ISSUER: SSC MASTER TRUST I
------- By: PNC Bank, National Association,
(not individually but solely in its capacity as Trustee)
By: _________________________________
Name:
Title:
c/o PNC Bank DE
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ___________________
TRUSTEE: PNC BANK, NATIONAL ASSOCIATION
-------- (not individually but solely in its capacity as Trustee)
By: _________________________________
Name:
Title:
▇/▇ ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ___________________
-20-
PURCHASER GROUP #1
THE ▇▇▇▇ ▇▇▇▇▇▇▇ PURCHASER GROUP
Number of Permitted Holders 6
PURCHASER A ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE INSURANCE
Aggregate Principal COMPANY
Balance of Class A
Certificates
$33,546,609
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates ▇▇▇▇ ▇▇▇▇▇▇▇ Place
of all Series ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
$33,546,609 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Accounting
Division T-10
Number of Permitted
Holders 4
PURCHASER B ▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
Aggregate Principal OF AMERICA
Balance of Class A
Certificates
$2,000,000
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates ▇▇▇▇ ▇▇▇▇▇▇▇ Place
of all Series ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
$2,000,000 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Accounting
Division T-10
Number of Permitted
Holders 1
-21-
PURCHASER C ▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE
Aggregate Principal COMPANY
Balance of Class A
Certificates
$4,000,000
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates ▇▇▇▇ ▇▇▇▇▇▇▇ Place
of all Series ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
$4,000,000 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securities Accounting
Division T-10
Number of Permitted
Holders 1
PURCHASER GROUP #2
THE AEGON PURCHASER GROUP
Number of Permitted Holders 3
PURCHASER D LIFE INVESTORS INSURANCE COMPANY OF
Aggregate Principal AMERICA
Balance of Class A
Certificates
$4,500,000
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates AEGON USA Investment Management, Inc.
of all Series ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
$4,500,000 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director of Private
Placements
Number of Permitted
Holders 1
-22-
PURCHASER E BANKERS UNITED LIFE ASSURANCE COMPANY
Aggregate Principal
Balance of Class A
Certificates
$7,500,000
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates AEGON USA Investment Management, Inc.
of all Series ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
$7,500,000 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director of Private
Placements
Number of Permitted
Holders 1
PURCHASER F AUSA LIFE INSURANCE COMPANY, INC.
Aggregate Principal
Balance of Class A
Certificates
$3,000,000
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates AEGON USA Investment Management, Inc.
of all Series ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
$3,000,000 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director of Private
Placements
Number of Permitted
Holders 1
-23-
PURCHASER GROUP #3
THE CONNING PURCHASER GROUP
Number of Permitted Holders 1
PURCHASER G COVA FINANCIAL SERVICES LIFE INSURANCE
Aggregate Principal COMPANY
Balance of Class A
Certificates
$5,000,000
By: _________________________________
Name:
Title:
Aggregate Principal
Balance of all Certificates Conning Asset Management
of all Series ▇.▇. ▇▇▇ ▇▇▇
▇▇,▇▇▇,▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Investment Accounting
Number of Permitted with copies to:
Holders 1 COVA Financial Services Life Insurance Co.
c/o The Northern Trust Company
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-24-
SCHEDULE I
to
THE CERTIFICATE PURCHASE AGREEMENT
ERISA Exemptions
Prohibited Transaction Class Exemptions ("PTCE"):
1. PTCE 96-23, regarding transactions effected by "in-house managers", as
defined therein.
2. PTCE 95-60, regarding investments by insurance company general accounts.
3. PTCE 90-1, regarding investments by insurance company pooled separate
accounts.
4. PTCE 91-38, regarding investments by bank collective investment funds.
5. PTCE 84-14, regarding transactions effected by "qualified professional asset
managers", as defined therein.
Exception:
Purchaser is not an employee benefit plan subject to Title I of ERISA, a plan as
defined in Section 4975 of the Internal Revenue Code or an entity that is deemed
for any purpose of ERISA or Section 4975 of the Internal Revenue Code to hold
assets of any such employee benefit plan or plan and is not acting on behalf of
any such employee benefit plan, plan or entity.
-25-
SCHEDULE II
to
THE CERTIFICATE PURCHASE AGREEMENT
Benefit Plan Disclosure Letter
[Date]
PNC Bank, National Association,.
as Trustee
The Purchaser (or any transferee of any legal or beneficial interest therein, as
the case may be) hereby represents and warrants that:
(i) if the Purchaser (or transferee, as the case may be) is an
insurance company using assets from its general account, the percentage
of the assets of such general account used to purchase the Series
1997-1 Certificates that represents plan assets does not exceed the
percentage set forth below and the Aggregate Principal Balance of Class
A Certificates owned by the Purchaser (or the transferee, as the case
may be) equals the amount set forth below:
----------% $--------------
(ii) if the Purchaser (or transferee, as the case may be) is an entity,
other than an insurance company using assets from its general account,
the underlying assets of which are considered for any purpose of ERISA
or section 4975 of the Internal Revenue Code to be assets of any
"employee benefit plan" or any "plan" (as defined in Section 4975 of
the Internal Revenue Code), the percentage of the assets of such entity
that represents plan assets does not exceed the percentage set forth
below and the Aggregate Principal Balance of Class A Certificates owned
by the Purchaser (or the transferee, as the case may be) equals the
amount set forth below:
----------% $--------------
(iii) if the Purchaser (or transferee, as the case may be) is an
"employee benefit plan" as defined in ERISA, whether or not subject to
ERISA, or a "plan" as defined in section 4975 of the Internal Revenue
Code, the Aggregate Principal Balance of Series 1997-1 Certificates
owned by such Purchaser (or transferee, as the case may be) equals the
following amount:
$----------------------
-26-
The Purchaser (and each transferee thereof, as the case may be) hereby further
represents and warrants that it will not transfer the Series 1997-1 Certificates
owned by it to an "employee benefit plan" as defined in ERISA, whether or not
subject to ERISA, or a "plan" as defined in section 4975 of the Internal Revenue
Code or any person which is directly or indirectly purchasing or holding the
Series 1997-1 Certificates or any interest therein on behalf of, or with assets
of, any such employee benefit plan or plan (each such employee benefit plan,
plan or person, a "benefit plan investor") unless (a) the transferee delivers
this Benefit Plan Disclosure letter to the Trustee and the Trustee consents to
such transfer and (b) the transferee agrees that it will not transfer the Series
1997-1 Certificates unless its transferees comply with the requirements of the
preceding clause (a) and this clause (b). The Purchaser (and each transferee
thereof, as the case may be) understands that the Trustee shall not consent to
any transfer to a benefit plan investor unless the Trustee has determined that
the aggregate ownership by benefit plan investors is less than 25% of the
Aggregate Principal Balance of each Class of Certificates of the Issuer
(determined by not including the investments of persons with discretionary
authority or control over the assets of the Issuer, any person who renders
investment advice for a fee with respect to such assets and their respective
affiliates).
[PURCHASER]
By:_________________________
Name:
Title:
-27-
EXHIBIT A
[FORM OF SELLER ORDER]
-28-
EXHIBIT B
TRUSTEE ACCOUNT INFORMATION
PNC Bank, Wilmington Delaware
ABA # ▇▇▇▇▇▇▇▇▇
Credit A/C Name Trust Funds
Credit A/C #▇▇▇▇▇▇▇▇▇▇
Further Credit 47-47-002-3011565
RE: Wentworth Certificate Proceeds
-29-
EXHIBIT C
[LIST OF CLOSING DOCUMENTS]
-30-