EXHIBIT 1.1
NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
NATIONAL CITY BANK
(Originator, Seller and Servicer)
$_______ Class A Floating Rate Asset Backed Notes, Series 2005-[-]
$_______ Class B Floating Rate Asset Backed Notes, Series 2005-[-]
$_______ Class C Floating Rate Asset Backed Notes, Series 2005-[-]
FORM OF UNDERWRITING AGREEMENT
[-][-], 200[-]
[NAME OF UNDERWRITER],
As an Underwriter or as the Representative
of the Underwriters set forth
on Schedule A hereto (the "Representative")
[ADDRESS]
Ladies and Gentlemen:
National City Credit Card Master Note Trust, a Delaware statutory
trust (the "Issuer"), and National City Bank, a national banking association
(the "Bank"), as originator (in such capacity, the "Originator") and beneficiary
(in such capacity, the "Beneficiary") of the Issuer, propose to sell (a) $[-]
Class A Floating Rate Asset Backed Notes, Series 2002-[-] (the "Class A Notes"),
(b) $[-] Class B Floating Rate Asset Backed Notes, Series 2002-[-] (the "Class B
Notes") and (c) $[-] Class C Floating Rate Asset Backed Notes, Series 2002-[-]
(the "Class C Notes" and, together with the Class A Notes and the Class B Notes,
the "Notes") representing interests in the Issuer. The Notes will be issued
pursuant to the Indenture, dated as of [-][-], 2005, as supplemented by the
Indenture Supplement dated [-][-], 200[-] (as so supplemented and as otherwise
modified or amended from time to time, the "Indenture"), between the Issuer and
The Bank of New York, as trustee (in such capacity, the "Indenture Trustee").
The Issuer is operated pursuant to a Trust Agreement, dated as of July 13, 2005,
between the Bank, as Beneficiary, and Wilmington Trust Company, as owner trustee
(the "Owner Trustee"), as amended by the Amended and Restated Trust Agreement,
dated as of [-][-], 2005 (as amended and restated, the "Trust Agreement"),
between the Bank, as Beneficiary, and the Owner Trustee. The Notes will be
secured by certain assets of the Issuer, including the Collateral Certificate
referred to below (collectively, the "Collateral").
The Bank has transferred credit card receivables to the National
City Credit Card Master Trust (the "Master Trust") pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 1995, as amended and restated on July
1, 2000 (as amended from time to time, the "Pooling and Servicing Agreement"),
as supplemented by the Series 2005-CC Supplement (the "Series Supplement" dated
as of [-][-], 200[-]; references herein to the Pooling and Servicing Agreement
shall mean, unless otherwise specified, the Pooling and Servicing Agreement as
supplemented by the Series Supplement), between the Bank, as seller (in such
capacity, the "Seller") and as servicer (in such capacity, the "Servicer"), and
The Bank of New York (Delaware), as trustee (in such capacity, the "Master Trust
Trustee"). The assets of the Master Trust include, among other things, certain
amounts due on a pool of MasterCard(R) and VISA(R) revolving credit card
accounts of the Bank (the "Receivables"), and the benefit of a Credit
Enhancement (as hereinafter defined), if any. Pursuant to the Pooling and
Servicing Agreement and the Trust Agreement, the Bank has caused the Master
Trust to issue to the Issuer a collateral certificate (the "Collateral
Certificate"). The Collateral Certificate is an investor certificate under the
Pooling and Servicing Agreement that represents undivided interests in certain
assets of the Master Trust.
The Notes will be sold in a public offering by the Issuer through
the Underwriters as underwriter, or through certain underwriters which include
the underwriters for the Class A Notes listed on Schedule A hereto (the "Class A
Underwriters"), the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters") and the underwriters for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriters" and, together with the
Class A Underwriters and Class B Underwriters, the "Underwriters"). Any Notes
sold pursuant to this Underwriting Agreement may include the benefits of a
reserve account, letter of credit, surety bond, cash collateral account, cash
collateral guaranty, collateral interest, guaranteed rate agreement, maturity
guaranty facility, tax protection agreement, interest rate swap, spread account
or other contract or agreement for the benefit of the holders of the notes (the
"Noteholders") ("Credit Enhancement"). To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Indenture or the Pooling and Servicing Agreement. Unless otherwise stated
herein, as the context otherwise requires or if such term is otherwise defined
in the Indenture or the Pooling and Servicing Agreement, each capitalized term
used or defined herein shall relate only to the Notes designated in this
Underwriting Agreement and no other series, class or tranche of notes issued by
the Issuer.
The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a shelf registration statement
on Form S-3 (having registration numbers 333-126628, 000-000000-00,
333-126628-02), including a form of prospectus, relating to the Notes and the
Collateral Certificate. The registration statement as amended has been declared
effective by the Commission. If any post-effective amendment has been filed with
respect thereto, prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. Such
registration statement, as amended at the time of effectiveness, including all
material incorporated by reference therein and including all information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is referred to in this
Agreement as the "Registration Statement." The Bank proposes to file with the
Commission pursuant to Rule 424(b)
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("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 "Basic Prospectus") relating to the Notes and the method of distribution
thereof The Basic Prospectus and the Prospectus Supplement, together with any
amendment thereof or supplement thereto, is hereinafter referred to as the
"Prospectus."
Upon the execution of this Agreement, the Bank agrees with the
Underwriters as follows:
1. Upon the execution of this Agreement, the Bank represents and
warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having
registration numbers 333-126628, 000-000000-00, 333-126628-02), including the
Prospectus and such amendments thereto as may have been required on the date of
this Agreement, relating to the Notes, has been filed with the Commission and
such Registration Statement as amended has become effective. The conditions to
the use of a shelf registration statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been satisfied with respect
to the Bank and the Registration Statement;
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the Commission,
and on the effective date of the Registration Statement, the Registration
Statement and the Prospectus conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission under the Act (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 Registration Statement and the Prospectus conform, and at the
time of filing of the Prospectus pursuant to Rule 424(b) such documents will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents will include on the date of
this Agreement and on the Closing Date 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Bank in writing by such Underwriter through the Representative
expressly for use therein;
(c) As of the Closing Date, the representations and warranties
of the Bank, as Seller and Servicer, in the Pooling and Servicing Agreement will
be true and correct;
(d) The Bank has been duly organized and is validly existing
as a national banking association in good standing under the laws of the United
States, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and to execute, deliver and
perform this Agreement and to authorize the sale of
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the Notes, and to consummate the transactions contemplated by this Agreement and
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Bank and its
subsidiaries, taken as a whole;
(e) The Collateral Certificate has been duly authorized, and
when executed, issued and delivered pursuant to the Pooling and Servicing
Agreement, duly authenticated by the Master Trust Trustee and delivered by the
Bank, as Beneficiary, to the Owner Trustee on behalf of the Issuer pursuant to
this Agreement, will be duly and validly executed, authenticated, issued and
delivered and entitled to the benefits provided by the Pooling and Servicing
Agreement. Each increase in the Investor Interest of the Collateral Certificate
will have been authorized and effected in accordance with the Pooling and
Servicing Agreement as of the applicable settlement date of each Note; each of
the Pooling and Servicing Agreement and this Agreement have been duly authorized
by the Bank and, when executed and delivered by the Bank, as Seller and
Servicer, and the Master Trust Trustee (in the case of the Pooling and Servicing
Agreement), each of the Pooling and Servicing Agreement and this Agreement will
constitute a valid and binding agreement of the Bank; and the Collateral
Certificate and the Pooling and Servicing Agreement conform to the descriptions
thereof in the Prospectus in all material respects;
(f) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or governmental body is required to be
obtained or made by the Bank for the consummation of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement, except
such as have been obtained and made under the Act, such as may be required under
state securities laws and the filing of any financing statements required to
perfect the Master Trust's interest in the Receivables or the Indenture
Trustee's interest in the Collateral;
(g) The Bank is not in violation of its organizational
documents or in default in its performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument to
which it is a party or by which it or its properties are bound which would have
a material adverse effect on the transactions contemplated herein or in the
Pooling and Servicing Agreement. The execution, delivery and performance of this
Agreement and the Pooling and Servicing Agreement, and the issuance and delivery
of the Collateral Certificate and the Notes and compliance with the terms and
provisions thereof will not result in a material breach or violation of any of
the terms and provisions of, or constitute a material default under, any
statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Bank, or any of its properties or any
agreement or instrument to which the Bank is a party or by which the Bank is
bound or to which any of the properties of the Bank is subject, or the
organizational documents of the Bank; and the Bank has full power and authority
to authorize and issue the Collateral Certificate, and to sell the Notes, as
contemplated by this Agreement and to enter into this Agreement and the Pooling
and Servicing Agreement;
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(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Bank, threatened to which any of the Bank or its subsidiaries is or may be a
party or to which any property of the Bank or its subsidiaries is or may be the
subject which, if determined adversely to the Bank, could individually or in the
aggregate reasonably be expected to have a material adverse effect on (i) the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Bank and its subsidiaries,
taken as a whole, and the interests of the holders of the Notes, or (ii) the
interests of the holders of the Notes; and there are no contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the Basic
Prospectus which are not filed or described as required; and
(i) This Agreement has been duly authorized, executed and
delivered by the Bank and when executed and delivered by the Bank, this
Agreement will constitute a valid and binding agreement of the Bank.
2. Upon the execution of this Agreement, the Issuer represents and
warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having
registration numbers 333-126628, 000-000000-00, 333-126628-02), including the
Prospectus and such amendments thereto as may have been required on the date of
this Agreement, relating to the Notes, has been filed with the Commission and
such Registration Statement as amended has become effective. The conditions to
the use of a shelf registration statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been satisfied with respect
to the Issuer and the Registration Statement;
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Issuer, threatened by the
Commission, and on the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act and 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 Registration Statement and the Prospectus
conform, and at the time of filing of the Prospectus pursuant to Rule 424(b)
such documents will conform in all respects to the requirements of the Act and
the Rules and Regulations, and on the Closing Date the Registration Statement
and the Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents will include on the
date of this Agreement and on the Closing Date 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; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Issuer in writing by such Underwriter through
the Representative expressly for use therein;
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(c) As of the Closing Date, the representations and warranties
of the Issuer in the Indenture will be true and correct in all material
respects;
(d) The Issuer has been duly formed and is validly existing as
a statutory trust in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as described
in the Prospectus and to execute, deliver and perform the Indenture, and to
authorize the issuance of the Notes, and to consummate the transactions
contemplated by the Indenture;
(e) As of the Closing Date, the Notes have been duly
authorized, and, when executed, issued and delivered pursuant to the Indenture,
duly authenticated by the Indenture Trustee and paid for by the Underwriters in
accordance with this Agreement, will be duly and validly executed,
authenticated, issued and delivered and entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized by the Issuer and, when
executed and delivered by the Issuer and the Indenture Trustee (in the case of
the Indenture), each of the Indenture and this Agreement will constitute a valid
and binding agreement of the Issuer; and the Notes and the Indenture conform to
the descriptions thereof in the Prospectus in all material respects;
(f) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or governmental body is required to be
obtained or made by the Issuer for the consummation of the transactions
contemplated by this Agreement or the Indenture, except such as have been
obtained and made under the Act, such as may be required under state securities
laws and the filing of any financing statements required to perfect the Master
Trust's interest in the Receivables or the Indenture Trustee's interest in the
Collateral;
(g) The Issuer is not in violation of its organizational
documents or in default in its respective performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties are bound
which would have a material adverse effect on the transactions contemplated
herein or in the Indenture. The execution, delivery and performance of this
Agreement and the Indenture, and the issuance and delivery of the Collateral
Certificate and the Notes and compliance with the terms and provisions thereof
will not result in a material breech or violation of any of the terms and
provisions of, or constitute a material default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Issuer or any of its properties or any agreement or
instrument to which the Issuer is a party or by which the Issuer is bound or to
which any of the properties of the Issuer is subject, or the organizational
documents of the Issuer; and the Issuer has full power and authority to
authorize, issue and sell the Notes as contemplated by this Agreement and the
Indenture and to enter into the Indenture;
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Issuer, threatened to which any of the Issuer or its subsidiaries is or may
be a party or to which any property of the Issuer or its subsidiaries is or may
be the subject which, if determined adversely to the Issuer, could individually
or in the aggregate reasonably be expected to have a material adverse effect on
(i) the general affairs, business, prospects, management, financial position,
equity or results of
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operations of the Issuer and its subsidiaries, taken as a whole, and the
interests of the holders of the Notes, or (ii) the interests of the holders of
the Notes; and there are no contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Basic Prospectus which are not
filed or described as required; and
(i) This Agreement has been duly authorized, executed and
delivered by the Issuer and when executed and delivered by the Issuer, this
Agreement will constitute a valid and binding agreement of the Issuer.
3. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Seller agrees to sell to the Class A Underwriters, and the Class A Underwriters
agree, severally and not jointly, to purchase from the Seller at a purchase
price of [-]% of the principal amount thereof, $[-] aggregate principal amount
of the Class A Notes, each Class A Underwriter to purchase the amounts shown on
Schedule A hereto.
4. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Seller agrees to sell to the Class B Underwriters, and the Class B Underwriters
agree, severally and not jointly, to purchase from the Seller at a purchase
price of [-]% of the principal amount thereof, $[-] aggregate principal amount
of the Class B Notes, each Class B Underwriter to purchase the amounts shown on
Schedule A hereto.
5. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Seller agrees to sell to the Class C Underwriters, and the Class C Underwriters
agree, severally and not jointly, to purchase from the Seller at a purchase
price of [-]% of the principal amount thereof, $[-] aggregate principal amount
of the Class C Notes, each Class C Underwriter to purchase the amounts shown on
Schedule A hereto.
6. The Bank understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Notes as soon after the
Registration Statement and this Agreement have become effective as in the
judgment of the Representative is advisable and (ii) initially to offer the
Notes upon the terms set forth in the Prospectus.
7. Payment for the Notes shall be made to the Bank or to its order
by wire transfer of same day funds at 9:00 A.M., New York City time, on the
Closing Date (as hereinafter defined), or at such other time on the same or such
other date, not later than the fifth Business Day thereafter, as the
Representative and the Bank may agree upon in writing. The time and date of such
payment for the Notes are referred to herein as the "Closing Date." As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
8. Upon the execution of this Agreement, the Bank and the Issuer,
jointly and severally covenant and agree with the several Underwriters that:
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(a) Immediately following the execution of this Agreement, the
Bank and the Issuer will prepare a Prospectus Supplement setting forth the
amount of Notes covered thereby and the terms thereof not otherwise specified in
the Basic Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances and such other information as the Bank and the Issuer deem
appropriate. The Bank and the Issuer 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).
(b) The Issuer will deliver (or the Bank will cause the Issuer
to deliver), at the expense of the Bank, to the Representative, two signed
copies of the Registration Statement and each amendment thereto, in each case
including exhibits, and to each other Underwriter a conformed copy of the
Registration Statement and each amendment thereto, in each case without exhibits
and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably request.
(c) Before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, the Bank or the Issuer will furnish to
the Representative a copy of the proposed amendment or supplement.
(d) The Bank and the Issuer will advise the Representative
promptly, and will confirm such advice in writing, (i) when any amendment to the
Registration Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, and (iv) of the receipt by the Bank or the Issuer of any
notification with respect to any suspension of the qualification of the Notes
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the issuance
of any such stop order or notification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(e) The Bank will if during such period of time after the
first date of the public offering of the Notes as in the opinion of counsel for
the Underwriters a Prospectus relating to the Notes is required by law to be
delivered in connection with sales by an Underwriter or dealer, (i) any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or (ii) it is necessary to amend or supplement the Prospectus to comply with the
law, forthwith prepare and furnish, at the expense of the Bank, to the
Underwriters and to the dealers (whose names and addresses the Representative
will furnish to the Bank and the Issuer) to which Notes may have been sold by
the Representative on behalf of the Underwriters and to any other dealers upon
request, a copy of such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the
8
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with the law.
(f) The Issuer will endeavor to qualify (or the Bank will
cause the Issuer to qualify) the Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Representative shall reasonably
request and will continue such qualification in effect so long as reasonably
required for distribution of the Notes and to pay all fees and expenses
(including fees and disbursements of counsel to the Underwriters) reasonably
incurred in connection with such qualification and in connection with the
determination of the eligibility of the Notes for investment under the laws of
such jurisdictions as the Representative may designate; provided, however, that
neither the Bank nor the Issuer shall be obligated to qualify to do business in
any jurisdiction in which it is not currently so qualified; and provided further
that neither the Bank nor the Issuer shall be required to file a general consent
to service of process in any jurisdiction.
(g) On or before December 31 of the year following the year in
which the Closing Date occurs, the Bank will cause the Issuer to make generally
available to Noteholders and to the Representative as soon as practicable an
earnings statement covering a period of at least twelve months beginning with
the first fiscal quarter of the Issuer occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 of the Commission promulgated thereunder.
(h) So long as any of the Notes are outstanding, the Issuer or
the Bank will furnish to the Representative copies of all reports or other
communications (financial or other) furnished to holders of the Notes and copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange.
(i) For a period from the date of this Agreement until the
retirement of the Notes, 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 Master Trust Trustee pursuant to Article III of the Pooling and Servicing
Agreement, by first-class mail promptly after such statements and reports are
furnished to the Master Trust Trustee.
(j) During the period beginning on the date hereof and
continuing to and including the Business Day following the Closing Date, neither
the Bank nor the Issuer will offer, sell, contract to sell or otherwise dispose
of any credit card backed securities with the same term and other
characteristics identical to the Notes without the prior written consent of the
Representative.
(k) The Bank will cause the Notes to be registered in a timely
manner pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the Indenture to be qualified pursuant to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
9
(l) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or rating agencies rating the Notes
(the "Rating Agency") is conditional upon the furnishing of documents or the
taking of any other reasonable action by the Bank or the Issuer agreed upon on
or prior to the Closing Date, the Bank or the Issuer, as applicable, shall
furnish such documents and take any such other reasonable action.
9. The Bank will pay all costs and expenses incident to the
performance of its obligations and the obligations of the Issuer under this
Agreement, including, without limiting the generality of the foregoing, (i) all
costs and expenses incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) all costs and expenses incident
to the preparation, printing and filing under the Act or the Exchange Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) all costs
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Notes under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel for
the Underwriters and their disbursements), (iv) all costs and expenses related
to any filing with the National Association of Securities Dealers, Inc., (v) all
costs and expenses in connection with the printing (including word processing
and duplication costs) and delivery of this Agreement, the Pooling and Servicing
Agreement, the Indenture and any Blue Sky Memorandum and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus as herein provided, (vi) the reasonable fees and disbursements of the
Bank's counsel and accountants, and (vii) all costs and expenses payable to the
Rating Agency in connection with the rating of the Notes, except that the
Underwriters agree to reimburse the Bank for an amount, if any, specified in
this Agreement on the Closing Date for application toward such expenses. It is
understood that, except as specifically provided in Sections 11 and 15 of this
Agreement, the Underwriters will pay all of their own fees, costs and expenses
(including the fees and disbursements of its counsel), transfer taxes and any
advertising expenses in connection with sales or offers from the Underwriters to
third parties.
10. The several obligations of the Underwriters hereunder are
subject to the performance by the Bank and the Issuer of their respective
obligations hereunder and to the following additional conditions:
(a) On or prior to the date of this Agreement, you shall have
received a letter, dated the date of this Agreement, of Ernst & Young LLP
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating that the engagement to apply agreed-upon procedures was performed in
accordance with the standards established by the American Institute of Certified
Public Accountants, and substantially in the form heretofore agreed and
otherwise in form and in substance satisfactory to you and your counsel.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 6(a) of this
Agreement; and, as of the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or, to the knowledge of the
Bank or the Issuer, threatened by the Commission; and all requests for
additional information from the
10
Commission with respect to the Registration Statement shall have been complied
with to the satisfaction of the Representative.
(c) The representations and warranties of the Bank and the
Issuer contained herein are true and correct in all material respects on and as
of the Closing Date as if made on and as of the Closing Date, and each of the
Bank and the Issuer shall have complied with all agreements and all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(d) The Representative shall have received an opinion of Xxxxx
X. Xxxxxxx, Vice President and Attorney for the Bank or such other officer that
the Bank may choose (provided that such officer is acceptable to the
Representative), subject to customary qualifications, assumptions, limitations
and exceptions, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, to the effect that:
(i) The Bank is a national banking association formed
under the laws of the United States of America and is authorized to
transact the business of banking, including to own its assets and to
transact its business as described in the Prospectus, and had at all
relevant times and now 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 Pooling and Servicing Agreement, the Trust
Agreement, the Indenture and the other transaction documents referred to
in such opinion that are executed by the Bank, not in its individual
capacity but solely as Beneficiary on behalf of the Issuer (the Indenture
and such other transaction documents being referred to herein as the
"Trust Documents") and to consummate the transactions contemplated herein
and therein;
(iii) The Collateral Certificate has been duly
authorized and executed by the Bank and, when authenticated and delivered
in accordance with the terms of the Pooling and Servicing Agreement will
be duly and validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation by the Bank of the transactions contemplated herein or in
the Pooling and Servicing Agreement, the Indenture or the Trust Agreement,
except for such consents, approvals, orders or filings as may be required
under federal or state securities laws and except for such filings as may
be required to perfect interests in the Receivables pursuant to the
Pooling and Servicing Agreement or the Collateral pursuant to the
Indenture;
(v) Neither the execution, delivery and performance by
the Bank of its obligations under this Agreement, the Pooling and
Servicing Agreement or the Trust Agreement, the transfer of the
Receivables to the Master Trust, the issuance and delivery of the
Collateral Certificate, nor the consummation of any other of the
transactions contemplated herein, in the Pooling and Servicing Agreement,
the Indenture
11
or the Trust Agreement will conflict with, result in a breach of or
violation of any of the terms of, or constitute a default under, the
Articles of Association or By-laws of the Bank, each as amended, or any
rule, order, statute or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Bank or the terms of any material indenture or other material agreement or
instrument known to such counsel to which the Bank is a party or by which
it or its properties are bound;
(vi) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened before any court,
administrative agency or other tribunal (x) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement, the Indenture, the
Trust Agreement, the Credit Enhancement, the Collateral Certificate or the
Notes, (y) seeking to prevent the issuance of the Collateral Certificate
or the Notes or the consummation of any of the transactions contemplated
by this Agreement, the Pooling and Servicing Agreement, the Indenture, the
Trust Agreement, the Credit Enhancement, the Collateral Certificate or the
Notes, 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, the Indenture, the Trust
Agreement, the Credit Enhancement, the Collateral Certificate or the Notes
or (z) seeking adversely to affect the federal income tax attributes of
the Notes as described in the Basic Prospectus under the headings
"Prospectus Summary -- Tax Status" and "Federal Income Tax Consequences";
and
(vii) Each of this Agreement, the Pooling and Servicing
Agreement, the Trust Agreement, the Trust Documents and the Collateral
Certificate has been duly authorized, executed and delivered by the Bank.
(e) The Representative shall have received an opinion of Xxxxx
Day, special counsel for the Bank and the Issuer, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Registration Statement has become effective
under the Act and the Prospectus has been filed with the Commission,
pursuant to Rule 424(b) promulgated under the Act; 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 are pending or contemplated under the Act; and the
Registration Statement and the Prospectus (other than the financial and
statistical information therein as to which such counsel express no
opinion), as of their respective effective date or date of issuance,
complied as to form in all material respects with the requirements of the
Act and the rules and regulations promulgated thereunder;
(ii) This Agreement, the Pooling and Servicing
Agreement, the Indenture, the Collateral Certificate and the Notes conform
in all material respects to the descriptions thereof contained in the
Registration Statement, in the form in which it became effective, and the
Prospectus;
12
(iii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and neither the Master Trust nor the Issuer is now, or
immediately following the sale of the Notes pursuant to this Agreement
will be, required to be registered under the Investment Company Act of
1940, as amended, and the Indenture has been qualified under the Trust
Indenture Act;
(iv) Each of the Indenture and the Indenture Supplement
is a legal, valid and binding obligation of the Issuer and the Indenture
Trustee enforceable against the Issuer and the Indenture Trustee, in
accordance with its terms;
(v) When the Notes have been duly executed and delivered
by the Issuer, authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for by the Underwriters pursuant to
this Agreement, the holder of record of any Note will be entitled to the
benefits afforded by the Indenture, and the Notes will constitute the
legal, valid and binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms;
(vi) The statements in the Basic Prospectus under the
heading "Benefit Plan Investors," to the extent they constitute matters of
law or legal conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects.
Such counsel also shall state that they have participated in
conferences with representatives of the Bank and its accountants, the
Underwriters and counsel to the Underwriters concerning the Registration
Statement and the Prospectus and have considered the matters required to be
stated therein and the matters stated therein, although they are not
independently verifying the accuracy, completeness or fairness of such
statements (except as stated in paragraph (v) above) and based upon and subject
to the foregoing, nothing has come to such counsel's attention to cause such
counsel to believe that the Registration Statement (excluding any exhibits filed
therewith), at the time it became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date or as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits 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 (it being understood that such counsel has not been requested to and
does not make any comment in this paragraph with respect to the financial
statements, supporting schedules and other financial or statistical information
contained in the Registration Statement or the Prospectus).
(f) The Representative shall have received an opinion or
opinions of Xxxxx Day, special counsel for the Bank and the Issuer, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, (i) with respect to the perfection of the Master
Trust's interest in the Receivables and certain other matters relating to the
applicable Credit Enhancement, if any, (ii) with respect to the perfection of
the Issuer's interest in the Collateral Certificate and certain other matters
relating to the applicable Credit Enhancement, if any, (iii) with respect to
certain matters relating to the transfer of the Collateral Certificate and
13
the applicable Credit Enhancement, if any, (ii) with respect to the perfection
of the Issuer's interest in the Collateral Certificate and certain other matters
relating to the applicable Credit Enhancement, if any, (iii) with respect to
certain matters relating to the transfer of the Collateral Certificate and the
applicable Credit Enhancement, if any, to the Indenture Trustee, and (iv) with
respect to the applicability of certain provisions of the National Bank Act and
the Federal Deposit Insurance Act, as amended by the Financial Institutions,
Reform, Recovery and Enforcement Act of 1989 with respect to the effect of
receivership of the Bank on such interest in the Receivables and with respect to
other related matters in a form previously approved by you and your counsel. In
addition, the Representative shall have received a reliance letter with respect
to any opinion that the Bank is required to deliver to the Rating Agency.
(g) The Representative shall have received an opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special tax counsel for the Bank and the Issuer
subject to customary qualifications, assumptions, limitations and exceptions,
dated the Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, to the effect that the statements in the Basic
Prospectus under the heading "Federal Income Tax Consequences," to the extent
they constitute matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material respects.
(h) The Representative shall have received from Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the Bank and the Issuer, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, (i) regarding the creation of the Master Trust's
interest in the Receivables, (ii) regarding the characterization of the Master
Trust for federal income tax purposes will be determinative of the character of
the Master Trust under the laws of the State of Delaware concerning any tax
imposed on or measured by income, and (iii) that each of the Pooling and
Servicing Agreement and the Collateral Certificate constitutes the legal, valid
and binding obligation of the Bank under the laws of the State of Delaware,
enforceable against the Bank in accordance with its terms.
(i) The Representative shall have received from Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, special counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters relating to this
transaction as the Representative may require, and the Seller shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) The Representative shall have received a certificate, dated the
Closing Date, of a Vice President or more senior officer of the Bank in which
such officer, to his or her knowledge after due inquiry, shall state that 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, that 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, that the
representations and warranties of the Bank, as Seller and as Servicer, in the
Pooling and Servicing Agreement are true and correct in all material respects as
of the dates specified in the Pooling and Servicing Agreement, that the
Registration Statement has become effective, that 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 and
that, 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.
14
(k) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx LLP, counsel to the Master Trust Trustee, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Master Trust Trustee is a banking corporation
organized and validly existing and in good standing under the laws of the
State of Delaware and is authorized and qualified to accept the trusts
imposed by the Pooling and Servicing Agreement and to act as Master Trust
Trustee under the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Master Trust Trustee;
(iii) The Master Trust Trustee has duly executed and
authenticated the Collateral Certificate;
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Master Trust Trustee and the performance by the Master
Trust Trustee of its terms do not conflict with or result in a violation
of (x) any law or regulation of the United States of America or the State
of Delaware governing the banking or trust powers of the Master Trust
Trustee, or (y) the organization certificate or by-laws of the Master
Trust Trustee;
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of Delaware having jurisdiction over the banking or trust powers of
the Master Trust Trustee is required in connection with the execution and
delivery by the Master Trust Trustee of the Pooling and Servicing
Agreement or the performance by the Master Trust Trustee thereunder; and
(vi) To the best knowledge of such counsel, there is no
action, suit or proceeding pending or threatened against the Master Trust
Trustee (as Master Trust Trustee under the Pooling and Servicing
Agreement) before or by any governmental authority that if adversely
decided, would materially adversely affect the ability of the Master Trust
Trustee to perform its obligations under the Pooling and Servicing
Agreement.
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
Closing Date, in form and substance satisfactory to the Representative and its
counsel, with respect to the grant of the Collateral Certificate and the
proceeds thereof to the Issuer and with respect to the perfection of the
Indenture Trustee's interest, for the benefit of the Noteholders, in the
Collateral Certificate and the proceeds thereof.
(1) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., counsel to the Owner Trustee, subject to customary
qualifications,
15
assumptions, limitations and exceptions dated the Closing Date, in form and
substance reasonably satisfactory to the Representative and its counsel, to the
effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of the
State of Delaware.
(ii) The Owner Trustee has power and authority to execute,
deliver and perform its obligations under the Trust Agreement and to
consummate the transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Trust Agreement, nor the consummation of the transactions
by the Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, contemplated thereby, requires the consent or approval
of, the withholding of objection on the part of, the giving of notice to,
the filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the State of
Delaware or the United States of America governing the banking or trust
powers of the Owner Trustee (other than the filing of the certificate of
trust with the Delaware Secretary of State, which certificate of trust has
been duly filed).
(v) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Trust Agreement, nor the consummation of the transactions
by the Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, contemplated thereby, is in violation of the charter or
by laws of the Owner Trustee or of any law, governmental rule or
regulation of the State of Delaware or of the United States of America
governing the banking or trust powers of the Owner Trustee or, to our
knowledge, without independent investigation, of any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term lease,
license or other agreement or instrument to which it is a party or by
which it is bound or, to our knowledge, without independent investigation,
of any judgment or order applicable to the Owner Trustee.
(vi) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
government authority which, if adversely determined, would materially and
adversely affect the ability of the Owner Trustee to carry out the
transactions contemplated by the Trust Agreement.
(m) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Issuer, subject to
customary
16
qualifications, assumptions, limitations and exceptions dated the Closing Date,
in form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) The Issuer has been duly created and is validly existing
in good standing as a statutory trust under the Delaware Statutory Trust
Act, 12 Del.C. Section 3801, et seq. (referred to in this subsection (m)
as the "Act");
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Owner Trustee and the Beneficiary, enforceable against
the Owner Trustee and the Beneficiary, in accordance with its terms;
(iii) The Trust Agreement and the Act authorize the Issuer to
execute and deliver the Indenture and the other transaction documents
referred to in such opinion (collectively referred to in this subsection
(m) as the "Trust Documents"), to issue the Notes and the trust
certificate (referred to in this subsection (m) as the "Trust
Certificate") and to grant the Collateral to the Indenture Trustee as
security for the Notes;
(iv) The Issuer has the power and authority, pursuant to the
Trust Agreement and the Act, to execute, deliver and perform its
obligations under the Trust Documents, the Notes and the Trust Certificate
and the execution and delivery of such agreements and obligations have
been duly authorized;
(v) The Trust Certificate has been validly issued and is
entitled to the benefits of the Trust Agreement;
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, the Notes or the Trust Certificate, nor the
consummation by the Issuer of any of the transactions by the Issuer
contemplated thereby, requires the consent or approval of, the withholding
of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware,
other than the filing of the certificate of trust with the Delaware
Secretary of State (which certificate of trust has been duly filed) and
the filing of any financing statements with the Delaware Secretary of
State in connection with the Trust Documents;
(vii) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, nor the consummation by the Issuer of the
transactions contemplated thereby, is in violation of the Trust Agreement
or of any law, rule or regulation of the State of Delaware applicable to
the Issuer;
(viii) Under Section 3805(b) of the Act, no creditor of the
holder of the Trust Certificate shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to, the
property of the Issuer except in accordance with the terms of the Trust
Agreement;
(ix) Under Section 3808(a) and (b) of the Act, the Issuer may
not be terminated or revoked by the Beneficiary, and the dissolution,
termination or bankruptcy
17
of any holder of the Trust Certificate shall not result in the termination
or dissolution of the Issuer, except to the extent otherwise provided in
the Trust Agreement;
(x) The Owner Trustee is not required to hold legal title to
the owner trust estate in order for the Issuer to qualify as a statutory
trust under the Act;
(xi) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the perfection of a security
interest in the Collateral Certificate;
(xii) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the transfer of the Collateral
Certificate to or from the Issuer;
(xiii) The corpus of the Issuer is not subject to any personal
property or similar ad valorem tax imposed by the State of Delaware;
(xiv) The characterization of the Issuer for federal income
tax purposes, whether as a trust, partnership or association taxable as a
corporation, is determinative of the character of the Issuer for State of
Delaware income tax purposes, and, if the Issuer is characterized as a
partnership for State of Delaware income tax purposes, no State of
Delaware income tax is imposed upon the Issuer. For State of Delaware
income tax purposes, taxable income would be derived from "federal taxable
income," and for the purpose of ascertaining such taxable income for State
of Delaware income tax purposes, the amount of federal taxable income as
determined for federal income tax purposes would be determinative, whether
such amount of federal taxable income is determined upon a
characterization of the transaction as a sale or as a loan;
(xv) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the Notes;
(xvi) There is no income tax imposed by the City of
Wilmington, Delaware, upon the Issuer and the City of Wilmington,
Delaware, is prohibited by Delaware State law from imposing a personal
property tax upon or measured by the corpus of the Issuer; and
(xvii) The Beneficiary (as defined in the Trust Agreement) is
the sole beneficial owner of the Issuer.
(n) The Representative shall have received a certificate, dated the
Closing Date, of an authorized representative of the Issuer in which such
representative, to his or her knowledge after due inquiry, shall state that the
representations and warranties of the Issuer in this Agreement are true and
correct in all material respects on and as of the Closing Date, that the Issuer
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, that the
representations and warranties of the Issuer in the Indenture are true and
correct in all material respects as of the dates specified in the Indenture,
that the Registration Statement has become effective, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no
18
proceedings for that purpose have been issued or are threatened by the
Commission and that, subsequent to the date of the Prospectus, there has been no
material adverse change in the financial position or results of operation of the
Issuer's business except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(o) The Underwriters shall have received an opinion of Xxxxx, Xxxxxx
& Xxxxxx LLP, counsel to the Indenture Trustee, subject to customary
qualifications, assumptions, limitations and exceptions dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation organized
and validly existing and in good standing under the laws of the State of
New York and is authorized and qualified to accept the trusts imposed by
the Indenture and to act as Indenture Trustee under the Indenture;
(ii) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee;
(iii) The Indenture Trustee has duly executed and
authenticated the Notes on the Closing Date;
(iv) The execution and delivery of the Indenture by the
Indenture Trustee and the performance by the Indenture Trustee of the
terms of the Indenture do not conflict with or result in a violation of
(x) any law or regulation of the United States of America or the State of
New York governing the banking or trust powers of the Indenture Trustee,
or (y) the organization certificate or by-laws of the Indenture Trustee;
(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 Indenture Trustee is required in connection with the execution and
delivery by the Indenture Trustee of the Indenture or the performance by
the Indenture Trustee thereunder;
(vi) To the best knowledge of such counsel, there is no
action, suit or proceeding pending or threatened against the Indenture
Trustee (as Indenture Trustee under the Indenture or in its individual
capacity) before or by any governmental authority that if adversely
decided, would materially adversely affect the ability of the Indenture
Trustee to perform its obligations under the Indenture; and
(vii) The execution, delivery and performance by the Indenture
Trustee of the Indenture will not subject any of the property or assets of
the Issuer, or any portion thereof, to the imposition of any lien which
may be asserted against the Issuer by the Indenture Trustee in its
capacity as Indenture Trustee.
(p) The Representative shall have received a letter, dated the
Closing Date, of Ernst & Young LLP which meets the requirements of subsection
(a) of this Section 8.
19
(q) The Representative shall have received evidence satisfactory to
the Representative that the Class A Notes shall be rated "Aaa" by Xxxxx'x
Investors Service, Inc. ("Moody's"), "AAA" by Standard & Poor's Ratings Services
("Standard & Poor's") and "AAA" by Fitch, Inc. ("Fitch"), that the Class B Notes
shall be rated no lower than "A2" by Moody's, "A" by Standard & Poor's and "A"
by Fitch, and that the Class C Notes shall be rated no lower than "Baa2" by
Moody's, "BBB" by Standard & Poor's and "BBB" by Fitch.
The Bank will furnish you, or cause you to be furnished with, such
number of conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
11. (a) The Bank and the Issuer, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act as
follows: (i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus relating to
the Notes or the Prospectus, or any amendment or supplement thereto, or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the foregoing indemnity with respect to
any untrue statement or omission in any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Notes if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the Bank
or the Issuer shall have furnished any amendments or supplements thereto) and,
if required by law, a copy of the Prospectus (as so amended or supplemented)
shall not have been furnished to such person at or prior to the written
confirmation of the sale of such Notes to such person; (ii) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Bank; and (iii) against any and all
expenses whatsoever (including, subject to Section 11(c) hereof, the reasonable
fees and disbursements of counsel chosen by you) as reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided, however, that
the Bank and the Issuer 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 such documents in reliance upon and in conformity with written
information furnished to the Bank or the Issuer by the Underwriters expressly
for use therein. Each of the Bank and the Issuer acknowledges that information
relating to the Underwriters set forth in the last paragraph of the cover page
of the Prospectus Supplement with respect to the Notes, the first sentence
20
under the heading "Risk Factors -- It May Not Be Possible to Find an Investor to
Purchase Your Notes" in the Prospectus and the information under the heading
"Underwriting" in the Prospectus Supplement (other than the information in the
last two paragraphs under such heading) constitutes the only information
furnished in writing by the Underwriters or on behalf of the Underwriters for
inclusion in the Prospectus (the "Underwriters' Information").
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Bank and the Issuer against any losses, claims, damages or
liabilities to which the Bank or the Issuer 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 any related
preliminary prospectus, 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 such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the Underwriters' Information furnished to the Bank and the
Issuer by such Underwriter specifically for use therein, as set forth in
subsection (a) above, and will reimburse any legal or other expenses reasonably
incurred by the Bank and the Issuer 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 11 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; provided, however, that the omission to so notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may otherwise have to any indemnified party other than under subsection
(a) or (b) above unless, to the extent the indemnifying party did not otherwise
learn of such action, such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in or targets of any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize in writing the indemnified party to employ
21
separate counsel at the expense of the indemnifying party. The indemnifying
party shall not be liable for any settlement of any claim or proceeding effected
without its written consent. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
12. If the indemnification provided for in Section 11 is unavailable
or insufficient to hold harmless an indemnified party under subsection 11(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 11(a) or (b) above. In determining the
amount of contribution to which the respective parties are entitled, (i) there
shall be considered the relative benefits received by each party from the
offering of the Notes or, (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, there shall be considered not only the relative
benefits referred to in clause (i) above but also the relative fault of each
party in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities and expenses as well as any other
relevant equitable considerations. The relative benefits received by each party
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Bank or the Issuer
(including the proceeds of the offering of the Notes paid to the Bank by the
Issuer) bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault of each party 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, the Issuer or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. Each of the
Bank, the Issuer and each Underwriter agrees that it would not be equitable if
the amount of such contribution were determined by a pro rata, a per capita or
any other form of allocation that does not take into account these equitable
considerations. 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
Section 12 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim that is the subject of this Section 12. Notwithstanding the
provisions of this Section 12, in no case shall any Underwriter (except as may
be provided in any agreement among the Underwriters relating to the offering of
the Notes) be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Notes purchased by such Underwriter
hereunder. Notwithstanding the provisions of this Section 12, 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. The Underwriters' obligation, pursuant to this
Section 12, to contribute are several in proportion to their respective
underwriting obligations and are not joint. For purposes of this Section 12,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act shall have the same rights to contribution as such Underwriter,
and each director of the Bank, each officer of the Bank who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act shall have the same rights to contribution
as the Bank.
22
13. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Bank, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) there has occurred any material adverse change or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operation of the Bank, and its subsidiaries,
taken as a whole, the effect of which in the reasonable judgment of the
Representative materially impairs the investment quality of the Notes; (ii) any
downgrading in the rating of the Notes or the securities of the Seller, by any
"nationally recognized statistical rating organization" (as such term is 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 the Notes or
the securities of the Seller (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) trading generally shall have been suspended
or materially limited on or by, as the case may be, the New York Stock Exchange;
(iv) a general moratorium on commercial banking activities in New York, Michigan
or Ohio shall have been declared by either Federal or New York, Michigan or Ohio
State authorities; or (v) there shall have occurred any outbreak or escalation
of 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 the reasonable judgment of the Representative, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
impracticable or inadvisable to proceed with completion of the sale and payment
for the Notes.
14. If any Underwriter defaults in its obligations to purchase Notes
hereunder and the aggregate principal amount of the Notes that such defaulting
Underwriter agreed but failed to purchase does not exceed 10% of the total
principal amount of such Notes, you may make arrangements satisfactory to the
Bank for the purchase of such Notes by other persons, including the
non-defaulting Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated, in proportion to their
commitments hereunder, to purchase the Notes that such defaulting Underwriter
agreed but failed to purchase. If any Underwriter so defaults and the aggregate
principal amount of the Notes with respect to which such default or defaults
occur exceeds 10% of the total principal amount of such Notes and arrangements
satisfactory to you and the Bank for the purchase of such Notes by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Bank,
except as provided in Section 9. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
15. If for any reason other than as set forth in Section 14 the
purchase of the Notes by the Underwriters is not consummated, the Bank shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 9 and the respective obligations of the Bank, the Issuer, and the
Underwriters pursuant to Sections 11 and 12 shall remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the occurrence of any event specified in clauses
(ii), (iii) or (iv) of Section 13, the Bank will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Notes.
23
16. Any action by the Underwriters hereunder may be taken by the
Representative on behalf of the Underwriters, and any such action taken by the
Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to [Name of Underwriter], as the
Representative, at [Address], Attention: [-], or to such other address as the
Representative may designate in writing to the Bank. Notices to the Bank shall
be given to it at 0000 Xxxx 0xx Xxxxxx Xxxxxxxxx, Xxxx 00000 (Facsimile No.:
216-[-]), Attention: [-].
17. (a) Each Underwriter, severally, represents and warrants to
the Bank and the Issuer that it has not and will not use any information that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994), with respect to the offering of the Notes.
(b) Each Underwriter, severally, represents and warrants to
the Bank and the Issuer that it has not and will not use any information that
constitutes "ABS Term Sheets," as defined in the Commission's No-Action Letter,
dated February 13, 1995, addressed to the Public Securities Association, with
respect to the offering of the Notes.
18. Each Underwriter, severally, represents that it will not, at any
time that such Underwriter is acting as an "underwriter" (as defined in Section
2(11) of the Act) with respect to the Notes, transfer, deposit or otherwise
convey any Notes into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or that
represents interests in, such Notes without the prior written consent of the
Bank.
19. Each Underwriter, severally, represents that if it furnished an
electronic copy of the preliminary Prospectus prepared in connection with the
offer and sale of the Notes to any person, such Underwriter has furnished a
printed copy of such preliminary Prospectus to all persons to whom it previously
furnished an electronic copy.
20. Each Underwriter, severally, represents and agrees that it has
not and will not, directly or indirectly, offer, sell or deliver any of the
Notes or distribute the Prospectus or any other offering materials relating to
the Notes in or from any jurisdiction except under circumstances that will, to
the best of its knowledge and belief, result in compliance by it with any
applicable laws and regulations thereof and that will, to the best of its
knowledge and belief, not impose any obligations on the Bank or the Issuer
except as set forth herein.
21. This Agreement shall become effective upon its execution and
delivery.
22. The Bank and the Issuer acknowledge and agree that (i) the
transaction contemplated by this Agreement is an arm's-length commercial
transaction between the Bank and the Issuer, on the one hand, and the each of
the Underwriters, on the other, (ii) in connection therewith with respect to all
aspects of the transaction contemplated herein, each Underwriter is acting as a
principal and not the agent or fiduciary of the Bank and the Issuer and the Bank
24
hereby expressly disclaim any fiduciary relationship with respect thereto, and
(iii) none of the Underwriters has assumed an advisory responsibility in favor
of the Bank or the Issuer with respect to the transaction contemplated hereby or
the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Bank or the Issuer on other matters) or any
other obligation to the Bank or the Issuer except the obligations expressly set
forth in this Agreement.
23. This Agreement shall inure to the benefit of and be binding upon
the Bank, the Issuer, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Notes from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
25
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Bank, the Issuer and the
Underwriters in accordance with its terms.
Very truly yours,
NATIONAL CITY BANK,
as Originator and Seller
By:__________________________________
Name: [_________________]
Title: [_______________]
NATIONAL CITY CREDIT CARD MASTER
NOTE TRUST,
as Issuer
By: National City Bank,
not in its individual
capacity but solely as Beneficiary on
behalf of the Issuer
By: _________________________________
Name: [_________________]
Title: [_________________]
26
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
[NAME OF UNDERWRITER],
As Underwriter or as the Representative
of the Underwriters named on Schedule A
hereto
By: ________________________________________
Name:
Title:
27
SCHEDULE A
Class A Notes
Principal Amount of
Class A Underwriters Class A Notes
-------------------- -------------------
$
$
$
$
$
$
Total $
Class B Notes
Principal Amount of
Class B Underwriters Class B Notes
-------------------- -------------------
$
$
Total $
Class C Notes
Principal Amount of
Class C Underwriters Class C Notes
-------------------- -------------------
$
$
Total $
28
