1
Exhibit 1.1
OH&S DRAFT
01/11/00
___________ __, ____
[Form of Underwriting Agreement]
Fleet Credit Card Master Trust II
$_____________Class A [__%] [Floating Rate] Asset Backed
Certificates, Series ___-_
$_____________ Class B [__%] [Floating Rate] Asset Backed
Certificate, Series ___-_
FLEET BANK (RI), NATIONAL ASSOCIATION
(AS SELLER AND SERVICER)
UNDERWRITING AGREEMENT
Representative of the
Underwriter[s] set forth herein
Ladies and Gentlemen:
1. Introductory. Fleet Bank (RI), National Association, a national
banking association (the "Bank") proposes to cause $___________ principal amount
of Fleet Credit Card Master Trust II Class A [___%] [Floating Rate] Asset Backed
Certificates, Series ____-_ (the "Class A Certificates"), $____________
aggregate principal amount of Fleet Credit Card Master Trust II Class B [___%]
[Floating Rate] Asset Backed Certificates, Series ____-_ (the "Class B
Certificates," and together with the Class A Certificates, the "Certificates")
to be issued under an Amended and Restated Pooling and Servicing Agreement,
between Bankers Trust Company, as Trustee (the "Trustee") and the Bank (as
Seller and Servicer and successor to Advanta National Bank as provided in an
Assignment and Assumption Agreement dated as of February 20, 1998 (the
"Assumption Agreement") among Advanta National Bank, the Bank, Fleet Credit
Card, LLC and the Trustee), dated as of December 1, 1993 (as amended and
restated as of May 23, 1994, as amended by Amendment Number 1 to the Amended and
Restated Pooling and Servicing Agreement dated as of July 1, 1994, Amendment
Number 2 to the Amended and Restated Pooling and Servicing Agreement dated as of
October 6, 1995, Amendment Number 3 to the Pooling and Servicing Agreement dated
as of February 20, 1998 and Amendment Number 4 to the Pooling and Servicing
Agreement dated as of May 14, 1999, the "Amended and Restated Pooling and
Servicing Agreement"), as supplemented by the Series ____-_ Supplement with
respect to the Certificates to be dated as of ___________ __, ____ (the "Series
Supplement" and
2
together with the Amended and Restated Pooling and Servicing Agreement, as
amended, and the Assumption Agreement, the "Pooling and Servicing Agreement").
The assets of the Trust will include, among other things, certain amounts
due (the "Receivables") on a pool of VISA and MasterCard credit card accounts of
the Bank (the "Accounts"), and recoveries on Defaulted Receivables. To the
extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The Bank hereby agrees with the underwriter[s] for the Class A
Certificates listed on Schedule A hereto (the "Class A Underwriter[s]") and the
underwriter[s] for the Class B Certificates listed on Schedule A hereto (the
"Class B Underwriter[s]", and together with the Class A Underwriter[s], the
"Underwriter[s]") as follows:
2. Representations and Warranties of the Bank. The Bank represents and
warrants to, and agrees with, the Underwriter[s] that:
(a) The Bank is a national banking association duly organized and
validly existing in good standing under the laws of the United States, and
has all requisite corporate power, authority and legal right to own its
property and conduct its credit card business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement, the Certificates
and the Pooling and Servicing Agreement.
(b) The execution and delivery of this Agreement, the Certificates,
the Series Supplement and the Assumption Agreement, the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions contemplated hereunder and thereunder have been duly
authorized by the Bank by all necessary action on the part of the Bank.
(c) This Agreement has been duly authorized, executed and delivered
by the Bank.
(d) The Series Supplement will be executed and delivered by the Bank
on or before the Closing Date, and when executed and delivered by the
other parties thereto, will constitute a valid and binding agreement of
the Bank, enforceable against the Bank in accordance with its terms, and
the Amended and Restated Pooling and Servicing Agreement as previously
executed and delivered by predecessors of the Bank and the Assumption
Agreement as previously executed by the Bank each constitute a valid and
binding agreement of the Bank, enforceable against the Bank, each in
accordance with its terms, except, in each case, to the extent that (i)
the enforceability thereof may be subject to insolvency, reorganization,
moratorium, receivership or other similar laws now or hereafter in effect
relating to creditors' or other obligees' rights generally or the rights
of creditors or other obligees insured by the FDIC, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) certain
remedial provisions of the Pooling and Servicing Agreement may be
2
3
unenforceable in whole or in part under the UCC, but the inclusion of such
provisions does not render the other provisions of the Pooling and
Servicing Agreement invalid and, notwithstanding that such provisions may
be unenforceable in whole or in part, the Trustee, on behalf of the
Holders of the Certificates, will be able to enforce the remedies of a
secured party under the UCC.
(e) The Certificates will be issued pursuant to the terms of the
Pooling and Servicing Agreement and, when executed by the Bank and
authenticated by the Trustee in accordance with the Pooling and Servicing
Agreement and delivered pursuant to this Agreement, will be validly issued
and outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. The Certificates will be in all material respects in the form
contemplated by the Pooling and Servicing Agreement and will conform to
the description thereof contained in the Prospectus and Registration
Statement, as amended or supplemented.
(f) The Bank is not in violation of any Requirement of Law or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease or other instrument to which it is a
party or by which it is bound or to which any of its property is subject,
which violations or defaults separately or in the aggregate would have a
material adverse effect on the Bank or the Trust.
(g) Neither the issuance and sale of the Certificates, nor the
execution and delivery by the Bank of this Agreement or the Certificates,
nor the incurrence by the Bank of the obligations herein and therein set
forth, nor the consummation of the transactions contemplated hereunder or
thereunder, nor the fulfillment of the terms hereof or thereof does or
will (i) violate any Requirement of Law presently in effect, applicable to
it or its properties or by which it or its properties are or may be bound
or affected, (ii) conflict with, or result in a breach of, or constitute a
default under, any indenture, contract, agreement, deed, lease, mortgage
or instrument to which it is a party or by which it or its properties are
bound, or (iii) result in the creation or imposition of any Lien upon any
of its property or assets, except for those encumbrances created under the
Pooling and Servicing Agreement.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body
required in connection with the execution and delivery by the Bank of this
Agreement, the Certificates or the Pooling and Servicing Agreement, or to
the consummation of the transactions contemplated hereunder and
thereunder, or to the fulfillment of the terms hereof and thereof have
been or will have been obtained on or before the Closing Date.
(i) All actions required to be taken by the Bank as a condition to
the offer and sale of the Certificates as described herein or the
consummation of any of the transactions described in the Prospectus and
Registration Statement have been or, prior to the Closing Date, will be
taken.
3
4
(j) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939.
(k) The representations and warranties made by the Bank in the
Pooling and Servicing Agreement and made in any Officer's Certificate of
the Bank delivered pursuant to the Pooling and Servicing Agreement will be
true and correct at the time made and on and as of the Closing Date as if
set forth herein.
(l) The Receivables (including Receivables in the Additional
Accounts, the Receivables of which are expected to be conveyed to the
Trust during the period from ___________ __, ___ through the Closing Date)
had an aggregate outstanding balance determined as of _________ __, ____
in the amount set forth in the Prospectus.
(m) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person
a security interest in, or any other right, title or interest in, the
Receivables, except as provided in the Pooling and Servicing Agreement,
and agrees to take all action required by the Pooling and Servicing
Agreement in order to maintain the security interest in the Receivables
granted pursuant to the Pooling and Servicing Agreement.
(n) A registration statement on Form S-3 (Nos. 333-___________ and
333-___________), including a form of prospectus and such amendments
thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed with,
and has been declared effective by, the Securities and Exchange Commission
(the "Commission"). If any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent such amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means the date and time as of which such registration
statement, or the most recent posteffective amendment thereto, if any, was
declared effective by the Commission, and "Effective Date" means the date
of the Effective Time. Such registration statement, as amended at the
Effective Time, is hereinafter referred to as the "Registration
Statement." The Bank proposes to file with the Commission pursuant to Rule
424(b) ("Rule 424(b)") under the Act a supplement (the "Prospectus
Supplement") to the prospectus included in the Registration Statement
(such prospectus, in the form it appears in the Registration Statement or
in the form most recently revised and filed with the Commission pursuant
to Rule 424(b), is hereinafter referred to as the "Base Prospectus")
relating to the Certificates and the method of distribution thereof. The
Base Prospectus and the Prospectus Supplement, together with any amendment
thereof or supplement thereto, are hereinafter referred to as the
"Prospectus".
(o) On the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Act and the rules and regulations
of the Commission thereunder (the "Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement, the
4
5
Registration Statement and the Prospectus conform, and at the time of
filing of the Prospectus pursuant to Rule 424(b) the Registration
Statement and the Prospectus will conform, in all respects with the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions
from either of such documents based upon written information furnished to
the Bank by the Underwriter[s] specifically for use therein. The Bank
hereby acknowledges that (i) the only information provided by the Class A
Underwriter[s] for inclusion in the Registration Statement and the
Prospectus is set forth on the cover page of the Prospectus Supplement in
the table under the heading "Class A Certificates" and on the line across
from "Price to public per certificate," in the last sentence in the risk
factor captioned "Ability to Resell Series ____-_ Certificates Not
Assured" in the Prospectus Supplement, in the table listing the Class A
Underwriter[s] and the Principal Amount of Class A Certificates and in the
paragraph immediately following such table under "Underwriting" in the
Prospectus Supplement and in the final paragraph under "Underwriting" in
the Prospectus Supplement" (the "Class A Underwriter[s]' Information");
and (ii) the only information provided by the Class B Underwriter[s] for
inclusion in the Registration Statement and the Prospectus is set forth on
the cover page of the Prospectus Supplement in the table under the heading
"Class B Certificates" and on the line across from "Price to public per
certificate," in the last sentence under the caption "Risk
Factors--Ability to Resell Series ____-_ Certificates Not Assured" in the
Prospectus Supplement, in the table listing the Class B Underwriter[s] and
the Principal Amount of Class B Certificates and in the paragraph
immediately following such table under "Underwriting" in the Prospectus
Supplement and in the final paragraph under "Underwriting" in the
Prospectus Supplement" (the "Class B Underwriter[s]' Information").
(p) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Bank or its subsidiaries, taken as a whole, from
__________ __, ____.
3. Purchase, Sale, Payment and Delivery of the Certificates.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Bank agrees to sell to the Class A Underwriter[s], and the
Class A Underwriter[s] agree to purchase from the Bank, at a purchase
price of ________% of the principal amount thereof, $_________ aggregate
principal amount of the Class A Certificates, each Underwriter to purchase
the amounts shown on Schedule A hereto.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Bank agrees to sell to the Class B Underwriter[s], and the
Class B Underwriter[s] agree to purchase from the Bank, at a purchase
price of ___% of the principal amount thereof, $__________
5
6
aggregate principal amount of the Class B Certificates, each Underwriter
to purchase the amounts shown on Schedule A hereto.
(c) The Bank will deliver the Certificates to you against payment of
the purchase price in immediately available funds, drawn to the order of
the Bank, at the office of __________________, in ________________ at
10:00 A.M., New York City time, on ____________ __, ____, or at such other
time not later than seven full business days thereafter as you and the
Bank determine, such time being herein referred to as the "Closing Date."
Each of the Class A Certificates and the Class B Certificates so to be
delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company. The Bank shall make such definitive certificates representing the
Class A Certificates and the Class B Certificates available for inspection
by the Underwriter[s] at the office at which the Certificates are to be
delivered no later than five hours before the close of business in New
York City on the business day prior to the Closing Date.
4. Offering by Underwriter[s]. It is understood that after the
Effective Date, the Underwriter[s] propose to offer the Certificates for sale to
the public (which may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Bank. The Bank agrees with the
Underwriter[s] that:
(a) Immediately following the execution of this Agreement, the Bank
will prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified
in the Base Prospectus, the price at which such Certificates are to be
purchased by the Underwriter[s], the initial public offering price, the
selling concessions and allowances, and such other information as the Bank
deems appropriate. The Bank will transmit the Prospectus, including such
Prospectus Supplement, to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing with the Commission pursuant to
Rule 424(b). The Bank will not file any amendment of the Registration
Statement with respect to the Certificates or supplement to the Prospectus
unless a copy has been furnished to you for your review a reasonable time
prior to the proposed filing thereof or to which you shall reasonably
object in writing. The Bank will advise you promptly of (i) the
effectiveness of any amendment or supplementation of the Registration
Statement or Prospectus, (ii) any request by the Commission for any
amendment or supplementation of the Registration Statement or the
Prospectus or for any additional information, (iii) the receipt by the Bank
of any notification with respect to the suspension of qualification of the
Certificates for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purposes and (iv) the institution by the
Commission of any stop order proceeding in respect of the Registration
Statement, and will use their best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
6
7
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Bank promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither your consent to, nor the
Underwriter[s'] delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(c) As soon as practicable, the Bank will cause the Trust to make
generally available to the Certificateholders an earnings statement or
statements of the Trust covering a period of at least 12 months beginning
after the Effective Date which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 of the Commission promulgated thereunder.
(d) The Bank will furnish to you copies of the Registration
Statement (one of which will be signed and will include all exhibits), the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as you reasonably request.
(e) The Bank will endeavor to qualify the Certificates for sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and the determination of the eligibility for investment
of the Certificates under the laws of such jurisdictions as you may
designate and will continue such qualifications in effect so long as
required for the distribution of the Certificates; provided, however, that
the Bank shall not be obligated to qualify to do business in any
jurisdiction where such qualification would subject the Bank to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(f) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank, as Servicer, will furnish to you
copies of each certificate and the annual statements of compliance
delivered to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to Article
III of the Pooling and Servicing Agreement, by first class mail as soon as
practicable after such certificates, statements and reports are furnished
to the Trustee.
(g) So long as any Certificate is outstanding, the Bank will furnish
to you, by first-class mail as soon as practicable (i) all documents
concerning the Certificates distributed by the Bank to Certificateholders,
or filed with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), (ii) any order of the Commission
under the Act or the Exchange Act applicable to the Trust or to the Bank as
originators of the Trust, or pursuant to a "no-action" letter obtained from
the staff of the Commission by the Bank and affecting the Trust or the Bank
as originators of the Trust and (iii) from time to time, such other
information concerning the Trust as you may reasonably request.
7
8
(h) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated for any reason, except a
default by you hereunder, the Bank will pay [description of expenses to be
paid by the Bank].
(i) To the extent, if any, that any of the ratings provided with
respect to the Certificates by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard
& Poor's Ratings Services are conditional upon the furnishing of documents
or the taking of any other actions by the Bank, the Bank shall furnish such
documents and take any such other actions.
6. Conditions of the Obligations of the Underwriter[s]. The obligation of
the Underwriter[s] to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Bank
herein, to the accuracy of the statements of officers of the Bank made pursuant
to the provisions hereof, to the performance by the Bank of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of this Agreement, you shall have
received a letter, dated the date of this Agreement, of
______________________, confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder, substantially in the form heretofore
agreed to and otherwise in form and in substance satisfactory to you and
your counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Bank or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Bank which, in your judgment, materially impairs the
investment quality of the Certificates; (ii) any downgrading in the rating
of any debt securities of the Bank or FleetBoston Corporation by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any such
debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating), (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Bank or Fleet Boston Corporation on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared by
Federal, Rhode Island or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in your judgment, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Certificates.
8
9
(d) You shall have received an opinion, dated the Closing Date,
of ___________ _________________________ General Counsel for the Bank, to
the effect that:
(i) The Bank (x) has been duly chartered and is validly
existing as a national banking association under the laws of the
United States, with power and authority to own its properties and
conduct its business as described in the Prospectus; (y) is neither
required to qualify, nor to register as a foreign corporation, in any
state in order to conduct its credit card business, except where the
failure to so qualify or register would not have a material adverse
effect upon the Certificateholders; and (z) has the power, authority
and legal right to acquire, own and service the Accounts and the
Receivables;
(ii) The Bank has the power and authority to execute and
deliver this Agreement, the Series Supplement and the Certificates and
to consummate the transactions contemplated herein and therein and the
Bank, at the time of the Assumption Agreement, had the power and
authority to execute and deliver the Assumption Agreement and had and
at all times since has had and does now have the power to consummate
the transactions contemplated by the Assumption Agreement; provided,
however, that such counsel may rely on an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
with respect to the Bank's authorization, execution and delivery of
the Assumption Agreement.
(iii) Each of the Series Supplement and the Certificates has
been duly authorized, executed and delivered by the Bank;
(iv) The Assumption Agreement has been duly authorized,
executed and delivered by the Bank;
(v) This Agreement has been duly authorized, executed and
delivered by the Bank;
(vi) The Registration Statement has become effective under the
Act and to the best of such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened under the Act;
(vii) No consent, approval, authorization or order of, or
filing of any UCC financing statements with, any court or governmental
agency or body having jurisdiction over the Bank is required for the
consummation of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, except for (x) filing of UCC
financing statements with respect to the transactions contemplated in
the Pooling and Servicing Agreement; (y) such consents, approvals,
authorizations, orders or filings as have been obtained under the Act;
and (z) such consents, approvals, authorizations, orders or filings as
may be required under the state securities or blue sky laws of any
jurisdiction;
9
10
(viii) The execution, delivery and performance by the Bank of
this Agreement and the Pooling and Servicing Agreement, the transfer
of the Receivables to the Trust, the issuance and sale of the
Certificates and the consummation of any other of the transactions
contemplated herein or in the Pooling and Servicing Agreement will not
conflict with, result in a breach of or a violation of any of the
terms of, or constitute a default under, (x) the Articles of
Association or By-Laws of the Bank or (y) any rule, order, statute or
regulation known to such counsel to be currently applicable to the
Bank, or (z) any agreement or other instrument, known to such counsel,
to which the Bank is a party or by which it is bound; and
(ix) To such counsel's knowledge, there are no actions,
proceedings or investigations pending before any court, administrative
agency or other tribunal (v) which are required to be disclosed in the
Prospectus and are not disclosed therein, (w) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement or the
Certificates, (x) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement or the Pooling and Servicing Agreement, (y) 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 or
(z) seeking adversely to affect the federal income tax attributes of
the Certificates as described in the Prospectus Supplement under the
heading "Summary of Terms--Tax Status" and in the Base Prospectus
under the heading "Federal Income Tax Consequences."
(e) You shall have received a letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
for the Bank, to the effect that you may rely on those provision of their
opinions to ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings
Services with respect to certain matters relating to the transfer of the
Receivables to the Trust, with respect to the perfection of the Trust's interest
in the Receivables and with respect to other related matters.
(f) You shall have received an opinion dated the closing date, of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Bank, to the effect
that
(i) The Pooling and Servicing Agreement, including the
allocation of Collections provisions thereof, constitutes the legal,
valid and binding obligation of the Bank under the laws of the State
of New York, enforceable against the Bank in accordance with its
terms.
(ii) This Agreement constitutes the legal, valid and binding
obligation of the Bank under the laws of the State of New York,
enforceable against the Bank in accordance with its terms.
(iii) The Certificates, when executed and authenticated in
accordance with the terms of the Pooling and Servicing Agreement and
delivered to and paid for by the Underwriter[s] in accordance with
this Agreement, will be duly and
10
11
validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
(iv) The statements in the Base Prospectus under the headings
"Material Legal Aspects of the Receivables," "ERISA Considerations"
and "Federal Income Tax Consequences" and the statements in the
Prospectus Supplement under the headings "Federal Income Tax
Consequences" and "ERISA Considerations" and the summaries thereof
under the headings "Summary of Terms--Tax Status" and "--ERISA
Considerations" in the Prospectus Supplement, to the extent they
constitute matters of law or legal conclusions with respect thereto,
have been reviewed by us and are correct in all material respects.
(v) This Agreement, the Pooling and Servicing Agreement and
the Certificates conform in all material respects to the descriptions
thereof contained in the Prospectus.
(vi) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and
the Trust is not now, and immediately following the sale of the
Certificates pursuant to this Agreement will not be, required to be
registered under the Investment Company Act of 1940, as amended.
(vii) For federal income tax purposes the Certificates will
properly be characterized as indebtedness and for purposes of Section
6.03(b)(vi) of the Pooling and Servicing Agreement (a) the issuance of
the Certificates will not adversely affect the tax characterization as
debt of Investor Certificates of any outstanding Series or Class that
were characterized as debt at the time of their issuance, (b)
following the issuance of the Certificates, the Trust will not be an
association (or publicly traded partnership) taxable as a corporation
and (c) the issuance of the Certificates will not cause or constitute
an event in which gain or loss would be recognized by any Investor
Certificateholder or the Trust; provided, however, that such counsel
may give the foregoing opinions subject to the discussion of
alternative characterizations and risks discussed in the Base
Prospectus under the heading "Federal Income Tax Consequences."
(viii) The Registration Statement and the Prospectus (other
than the financial and statistical information contained therein) on
their respective effective dates or dates of issuance appear on their
face to be appropriately responsive in all material respects to the
applicable requirements of the Act and the Rules and Regulations;
such counsel has no reason to believe that either the Registration
Statement or the Prospectus, as of such respective dates, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading, or that the Prospectus, as
amended or supplemented as of the date of such opinion, contains any
untrue statement of a material fact or omits to state any material
fact
11
12
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading (except that such counsel may express no
opinion as to (x) any financial statements, supporting schedules or
other financial or statistical information included in the
Registration Statement or the Prospectus or (y) the exhibits to the
Registration Statement.
(g) You shall have received from ________________________, special
counsel for the Underwriter[s], such opinion or opinions, dated the Closing
Date, with respect to such matters relating to this transaction as you may
require, and the Bank shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(h) You shall have received a certificate from the Bank, dated the
Closing Date, of two Vice Presidents or more senior officers of the Bank in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that (u) the representations and warranties of the
Bank in this Agreement are true and correct in all material respects on and as
of the Closing Date, (v) the Bank has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, (w) the representations and warranties of the Bank, as a
Seller and as Servicer, are true and correct as of the dates specified in the
Pooling and Servicing Agreement, (x) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission, (y) nothing
has come to such officers' attention that would lead such officers to believe
that the Registration Statement or the Prospectus, and any amendment or
supplement thereto, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (z) subsequent to
the date of the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Bank's credit card business
except as set forth in or contemplated by the Prospectus or as described in such
certificate.
(i) You shall have received an opinion of White & Case, counsel to
the Trustee, addressed to you, dated the Closing Date, satisfactory in form and
substance to you and your counsel and substantially to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing as a New York banking corporation and has the power and
authority to enter into and to perform all actions required of it
under the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes a
legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except as the
enforceability thereof may be limited by (y) bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, as such laws would apply in the event of
a bankruptcy,
12
13
insolvency, liquidation, reorganization or similar occurrence
affecting the Trustee, and (z) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The Certificates have been duly authenticated and
delivered by the Trustee;
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of its
terms does not conflict with or result in a violation of (y) any law
or regulation of the United States of America or the State of New York
governing the banking or trust powers of the Trustee, or (z) the
Certificate of Incorporation or By-Laws of the Trustee; and
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Trustee is required in connection with the execution and
delivery by the Trustee of the Pooling and Servicing Agreement or the
performance by the Trustee thereunder.
(j) You shall have received evidence satisfactory to you that the
Class A Certificates shall be rated ___ by ▇▇▇▇▇'▇ Investors Service, Inc. and
___ by Standard & Poor's Ratings Services and that the Class B Certificates
shall be rated no lower than __ by ▇▇▇▇▇'▇ Investors Service, Inc. and ____ by
Standard & Poor's Ratings Services.
The Bank will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution.
(a) The Bank will indemnify and hold harmless the
Underwriter[s] against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter[s] may become subject,
under the 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 or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, and will reimburse the Underwriter[s] for any legal or
other expenses reasonably incurred by the Underwriter[s] in connection
with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that the Bank will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with the Class A Underwriter[s'] Information or the Class B
Underwriter[s']. Information.
13
14
(b) The Underwriter[s] agree, [severally and not jointly], to
indemnify and hold harmless the Bank against any losses, claims,
damages or liabilities to which the Bank may become subject, under the
Act or otherwise and will reimburse any legal or other expenses
reasonably incurred by the Bank in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that, with respect to each of the Class A Underwriter[s] and
the Class B Underwriter[s], such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with the Class A Underwriter[s'] Information or the
Class B Underwriter[s'] Information, and will reimburse any legal or
other expenses reasonably incurred by the Bank in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled
to participate therein and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Bank on the one hand
and the Underwriter[s] on the other from the offering of the
Certificates, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Bank on the one
hand and the Underwriter[s] on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Bank on the
14
15
one hand and the Underwriter[s] on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering
(before deducting expenses) of the Certificates received by the Bank
bear to the total underwriting discounts and commissions received by
the Underwriter[s] with respect to the Certificates. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Bank or the Underwriter[s] and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission
with respect to the Certificates. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the
Underwriter[s] shall not be required to contribute any amount in
excess of the amount by which the total underwriting discount as set
forth on the cover page of the Prospectus Supplement exceeds the
amount of damages which the Underwriter[s] have otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission with respect to the Certificates. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Bank under this Section shall be
in addition to any liability which the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter[s] within the meaning of the Act;
and the obligations of the Underwriter[s] under this section shall be
in addition to any liability which the Underwriter[s] may otherwise
have and shall extend, upon the same terms and conditions, to each
director of the Bank, to each officer of the Bank who has signed the
Registration Statement and to each person, if any, who controls the
Bank within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or their officers and of the Underwriter[s] set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of the Underwriter[s], the Bank or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If this Agreement is
terminated or if for any reason other than default by the Underwriter[s] the
purchase of the Certificates by the Underwriter[s] is not consummated, the Bank
shall remain responsible for the expenses to be paid by it pursuant to Section 5
and the respective obligations of the Bank and the Underwriter[s] pursuant to
Section 7 shall remain in effect. If for any reason the purchase of the
Certificates by the Underwriter[s] is not consummated other than solely because
of the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Bank will reimburse the Underwriter[s] for all out-of-pocket expenses
reasonably incurred by them in connection with the offering of the Certificates.
15
16
9. Computational Materials and ABS Term Sheets. (a) Each
Underwriter agrees to provide to the Bank, not less than two Business Days prior
to the date on which the Bank is required to file the Prospectus Supplement
pursuant to Rule 424(b), any information used by it (in such written or
electronic format as required by the Bank) with respect to the offering of the
Certificates that constitutes "Computational Materials," as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation (as made generally applicable to registrants,
issuers and Underwriter[s] by the Commission's response to the request of the
Public Securities Association dated May 27, 1994 (the "▇▇▇▇▇▇/PSA Letter")),
that is not contained in the Prospectus (without taking into account information
incorporated therein by reference).
(a) Each Underwriter agrees to provide to the Bank, not less
than two Business Days prior to the date on which the Bank is required
to file the Prospectus Supplement pursuant to Rule 424(b), any
information used by it (in such written or electronic format as
required by the Bank) with respect to the offering of the Certificates
that constitutes "ABS Term Sheets," as defined in the Commission's
No-Action Letter, dated February 17, 1995, addressed to the Public
Securities Association, that is not contained in the Prospectus
(without taking into account information incorporated therein by
reference).
(b) Each Underwriter severally agrees, assuming all
information provided by the Bank is accurate and complete in all
material respects, to indemnify and hold harmless the Bank, each of
the officers and directors of the Bank and each person who controls
the Bank within the meaning of Section 15 of the Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they may become subject under the 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 Computational Materials or ABS Term Sheets, if any,
provided by the Underwriter, or arise out of or are based upon 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 agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by such indemnified
party 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 the Underwriter under this
Section 9(c) shall be in addition to any liability that the
Underwriter may otherwise have.
The procedures set forth in Sections 7(c) and 7(d) shall be equally
applicable to this Section 9(c). Notwithstanding anything in this Section 9,
each Underwriter represents and warrants that it has not used any Computational
Materials or ABS Term Sheets in connection with the offering of the
Certificates.
10. Electronic Distribution of Prospectus. Each Underwriter represents
that if it furnished an electronic copy of the preliminary Prospectus used in
connection with the Certificates to any person, such Underwriter has furnished a
printed copy of such preliminary Prospectus to all persons to whom it previously
sent an electronic copy.
16
17
11. Notices. All communications hereunder will be in writing and,
if sent to the Underwriter[s], will be mailed, delivered or telegraphed and
confirmed to:
-----------------------
-----------------------
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14. Financial Services Act. Each Underwriter represents and warrants
to, and agrees with, the Bank that (w) it has complied and shall comply with all
applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the Public Offers
of Securities Regulations 1995 (the "Regulations") with respect to anything done
by it in relation to the Certificates in, from or otherwise involving the United
Kingdom; (x) it has only issued or passed on and shall only issue or pass on in
the United Kingdom any document received by it in connection with the issue of
the Certificates to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
or who is a person to whom the document may otherwise lawfully be issued or
passed on; (y) it has not offered or sold and, during the period of six months
from the date hereof, will not offer or sell any Certificate to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing, or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Regulations.
17
18
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Bank whereupon this letter and your acceptance
shall become a binding agreement among the Bank and the Underwriter[s].
Very truly yours,
FLEET BANK (RI),
NATIONAL ASSOCIATION
By: _____________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[Representative of the]
Underwriter[s] set forth herein
By: _____________________
Name:
Title:
19
SCHEDULE A
Class A Certificates
Principal Amount of
Underwriter[s] Class A Certificates
Class B Certificates
Principal Amount of
Underwriter[s] Class B Certificates
