UNIVERSAL BANK, N.A.
Class A Credit Card Participation Certificates, Series 1999-[ ]
Universal Bank Card Master Trust
[ ]% Certificate Rate
CLASS A UNDERWRITING AGREEMENT
[ ], 1999
[ ]
as Representative of the Several Underwriters,
[ ]
[ ]
Ladies and Gentlemen:
Universal Bank, N.A. (the "Bank"), has conveyed and proposes
to continue to convey the Receivables arising from certain consumer revolving
credit card accounts and other rights to the Universal Card Master Trust (the
"Trust"), and proposes to cause the Trust to sell to the underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"), $[ ] aggregate principal amount of [ ]%
Class A Asset Backed Certificates, Series 1999-[ ] (the "Class A Certificates")
in the Trust. It is understood that the Bank is concurrently entering into a
Class B Underwriting Agreement dated the date hereof (the "Class B Underwriting
Agreement") among the Bank and the underwriters named in Schedule I thereto (the
"Class B Underwriters"), providing for the sale of $[ ] aggregate principal
amount of [ ]% Class B Asset Backed Certificates, Series 1999-[ ] (the "Class B
Certificates"). The Class A Certificates and the Class B Certificates are
referred to herein collectively as the "Certificates".
The Receivables have been and will be conveyed by the Bank to
the Trust and the Certificates will be issued pursuant to the Amended and
Restated Pooling and Servicing Agreement, dated as of April 24, 1998 (the
"P&S"), among the Bank, as Seller, Universal Card Services Corp. ("UCS"), as
Servicer, and Bankers Trust Company, as trustee (the "Trustee"), and the Series
1999-[ ] Supplement to the Pooling and Servicing Agreement, to be dated as of
the Closing Date (as defined in Section 3 below) (the "Supplement"), among the
Bank, as Seller, UCS, as Servicer, and
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the Trustee. The P&S and the Supplement are referred to herein collectively as
the "Pooling and Servicing Agreement". The Class A Certificates will represent
undivided interests in certain assets of the Trust and will be sold pursuant to
this Agreement. The Trust will also issue $[ ] aggregate principal amount of
Class B Certificates which will be sold pursuant to the Class B Underwriting
Agreement. This Agreement and the Class B Underwriting Agreement are referred to
herein collectively as the "Underwriting Agreements". In addition, the Bank, as
Seller, UCS, as Servicer, the Trustee and [ ], as agent for the Collateral
Interest Holder (the "Agent"), acting by and through its New York branch (the
"Branch"), will enter into a Loan Agreement to be dated as of the Closing Date
(the "Loan Agreement") pursuant to which the purchaser of the Collateral
Interest (the "Collateral Interest Holder") will purchase $[ ] aggregate initial
principal amount of Collateral Interest (the "Collateral Interest").
Capitalized terms used herein without definition shall have
the meanings set forth in the Supplement.
Section 1. Representations and Warranties of the Bank. The
Bank represents and warrants to, and agrees with, each Underwriter as set forth
in this Section 1. Certain terms used in this Section 1 are defined in paragraph
(a) below.
(a) The Bank meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-9309) on such Form, including a related preliminary
prospectus, for registration under the Act of the offering and sale of the Class
A Certificates. The Bank may have filed one or more amendments thereto,
including the related preliminary prospectus, each of which amendments has
previously been furnished to the Underwriters. The Bank will next file with the
Commission a final basic prospectus and final prospectus supplement relating to
the Class A Certificates in accordance with Rules 415 and 424(b)(2) or (5) under
the Act. The Bank has included in such registration statement, as amended at the
Effective Date, all information required by the Act and the rules thereunder to
be included in such registration statement. As filed, such amendment and form of
final prospectus supplement, or such final basic prospectus or final prospectus
supplement, shall include all such required information, with respect to the
Class A Certificates and the offering thereof and, except to the extent the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Underwriters prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest preliminary prospectus that has previously been
furnished to the Underwriters) as the Bank has advised the
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Underwriters, prior to the Execution Time, will be included or made therein. If
the Registration Statement contains the undertakings specified by item 512(a) of
Regulation S-K, the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
The terms that follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred to in
the preceding paragraph. "Basic Prospectus" shall mean the prospectus referred
to above contained in the Registration Statement at the Effective Date.
"Prospectus" shall mean the prospectus supplement relating to the Class A
Certificates that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus (as such Basic Prospectus may have been
amended and together with any supplements thereto) or, if no filing pursuant to
Rule 424(b) is required, shall mean the prospectus supplement relating to the
Class A Certificates, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement" shall
mean the registration statement referred to in the preceding paragraph and any
registration statement required to be filed under the Act or rules thereunder,
including incorporated documents, exhibits and financial statements, in the form
in which it has or shall become effective and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended. "Rule 424","Rule 415" and "Regulation
S-K" refer to such rules or regulations under the Act. Any reference herein to
the Registration Statement, the Basic Prospectus or Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus or Prospectus,
as the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic Prospectus
or Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of the Basic Prospectus or Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(b) On the Effective Date, the Registration Statement did or
will comply in all material respects with the applicable requirements of the Act
and the rules thereunder; on the Effective Date and when the Prospectus is first
filed (if required) in accordance with Rule 424(b) and on the Closing Date,
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the Prospectus (as amended and together with any supplements thereto) will
comply in all material respects with the applicable requirements of the Act and
the rules thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (as
amended and together with any supplements thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Bank makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Prospectus (or any supplements thereto) in
reliance upon and in conformity with information furnished in writing to the
Bank by or on behalf of any Underwriter specifically for use in connection with
the preparation of the Registration Statement or the Prospectus (or any
supplements thereto).
(c) The Bank is an association duly organized, validly
existing and in good standing as a licensed national banking association under
the laws of the United States, and has all requisite power and authority to own
its properties and conduct its business as presently conducted and to execute,
deliver and perform this Agreement, to authorize the issuance of the
Certificates and to consummate the transactions contemplated hereby.
(d) The execution, delivery and performance by the Bank of the
Underwriting Agreements, the Pooling and Servicing Agreement, the Loan
Agreement, the Depository Agreement, and the issuance of the Certificates and
the consummation of the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary action or proceedings.
(e) This Agreement has been duly executed and delivered by the
Bank.
(f) The Bank has authorized the conveyance of the Receivables
to the Trust, and the Bank has authorized the Trust to issue and sell the
Certificates.
(g) The Bank has delivered to the Underwriters complete and
correct copies of (i) publicly available portions of the Consolidated Reports of
Condition and Income of the Bank for the years ended December 31, 1997 and 1998,
as submitted to the Comptroller of the Currency; and (ii) the December 31, 1996,
1997 and 1998, audited consolidated balance sheets of Citicorp (parent of the
Bank) which are included in Citicorp's 1998 Annual Report
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on Form 10-K. Except as set forth in or contemplated in the Registration
Statement and the Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of the Bank since December 31, 1998.
(h) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement, the Loan Agreement and the Certificates, shall
have been paid or will be paid by the Bank at or prior to the Closing Date to
the extent
then due.
(i) The Certificates have been duly and validly authorized.
The Certificates, when validly authenticated, issued and delivered in accordance
with the Pooling and Servicing Agreement and sold to the Underwriters as
provided herein and to the Class B Underwriters pursuant to the Class B
Underwriting Agreement, will conform in all material respects to the
descriptions thereof contained in the Prospectus and will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
Section 2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the covenants, representations and warranties
herein set forth, the Bank agrees to cause the Trust to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase, the respective initial principal amount of Class A Certificates set
forth opposite such Underwriter's name in Schedule I hereto. The purchase price
for the Class A Certificates shall be equal to [ ]% of the aggregate initial
principal amount of the Class A Certificates.
Section 3. Delivery and Payment. Delivery of and payment for
the Class A Certificates shall be made at the offices of [ ], 1999, at 10:00
a.m., New York City time, on [ ], 1999, or at such later date (not later than [
], 1999) as the Underwriters shall designate, which date and time may be
postponed by agreement between the Underwriters and the Bank (such date and time
of delivery and payment for the Class A Certificates being referred to herein as
the "Closing Date"). Delivery of one or more global certificates representing
the Class A Certificates shall be made to the accounts of the several
Underwriters against payment by the several Underwriters of the purchase price
therefor to or upon the order of the Bank by one or more wire transfers or
checks in Federal (same day) Funds. The global certificates to be so delivered
shall be registered in the name of Cede & Co., as nominee for The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Class A
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Class A Certificates
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representing the Class A Certificates will be available only
under limited circumstances.
The Bank agrees to have the global certificates or the
Definitive Class A Certificates available for inspection, checking and packaging
by the Underwriters in New York, New York, not later than 1:00 p.m., New York
City time, on the business day prior to the Closing Date.
Section 4. Offering by Underwriters. (a) It is
understood that the Underwriters propose to offer the Class A
Certificates for sale to the public as set forth in the
Prospectus.
(b) Each Underwriter agrees that if it is a foreign broker or
dealer not eligible for membership in the National Association of Securities
Dealers, Inc. (the "NASD"), it will not effect any transaction in the Class A
Certificates within the United States or induce or attempt to induce the
purchase of or sale of the Class A Certificates within the United States, except
that it shall be permitted to make sales to the other Underwriters or to its
United States affiliates; provided that such sales are made in compliance with
an exemption of certain foreign brokers or dealers under Rule 15a-6 under the
Exchange Act, and in conformity with the Rules of Fair Practice of the NASD as
such Rules apply to non-NASD brokers or dealers.
(c) Each Underwriter represents and agrees that (i) it has
complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the Class A
Certificates in, from or otherwise involving the United Kingdom; (ii) it has
only issued, distributed or passed on and will only issue, distribute or pass on
in the United Kingdom any document received by it in connection with the issue
of the Class A Certificates to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or persons to whom such document may otherwise lawfully
be issued, distributed or passed on; (iii) if it is an authorized person under
Chapter III of Part I of the Financial Services Act 1986, it has only promoted
and will only promote (as that term is defined in Regulation 1.02(2) of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991) to any
person in the United Kingdom the scheme described in the Prospectus if that
person is of a kind described either in section 76(2) of the Financial Services
Act 1986 or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991; and (iv) it is a person of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996.
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Section 5. Agreements. The Bank covenants and agree
with the Underwriters that:
(a) The Bank will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. If filing of the Prospectus is required
under Rule 424(b), the Bank will file the Prospectus, properly completed, and
any supplement thereto, pursuant to Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Underwriters of such
timely filing. The Bank will promptly advise the Underwriters (i) when the
Registration Statement, and any amendment thereto, if not yet effective at the
Execution Time, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and (v) of the receipt by the Bank of any
notification with respect to the suspension of the qualification of the Class A
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Bank will not file any amendment of the
Registration Statement or supplement to the Prospectus unless a copy has been
furnished to the Underwriters, for review by the Underwriters prior to such
filing if the Underwriters shall have not yet completed their distribution of
the Certificates, and after such filing if the Underwriters shall have completed
their distribution of the Certificates. The Bank will use its reasonable efforts
to prevent the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(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 such Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in light of the circumstances under which they were
made not misleading, or if it shall be necessary to supplement such Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder,
the Bank promptly will prepare and file with the Commission, subject to
paragraph (a) of this Section 5, a supplement that will correct such statement
or omission or an amendment that will effect such compliance.
(c) As soon as practicable, and in no case later than 16
months after the Closing Date, the Bank will make generally available to
Certificateholders and to the Underwriters an earnings statement or statements
of the Trust that will satisfy
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the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Bank will furnish to the Underwriters and counsel to
the Underwriters, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request.
(e) The Bank will pay all expenses incidental to the
performance of its obligations under this Agreement, including, without
limitation, (i) expenses of preparing, printing and reproducing the Registration
Statement, the Prospectus, this Agreement, the Pooling and Servicing Agreement,
the Loan Agreement, the Depository Agreement and the Class A Certificates, (ii)
any fees charged by any rating agency for the rating of the Class A
Certificates, (iii) any expenses (including reasonable fees and disbursements of
counsel) incurred by the Underwriters in connection with qualification of the
Class A Certificates for sale under the laws of such jurisdictions as the
Underwriters designate, (iv) reasonable fees and expenses of Cravath, Swaine &
▇▇▇▇▇ in its role as special Federal tax and ERISA counsel for the Bank and the
Trust, (v) any expenses incurred by the Underwriters in connection with listing
the Class A Certificates on the Luxembourg Stock Exchange, (vi) the cost of
delivering the Class A Certificates to the offices of the Underwriters, insured
to the satisfaction of the Underwriters, (vii) the fees and expenses of the
Trustee and its counsel and (viii) the fees and expenses of the Bank's
accountants (it being understood that, except as provided in paragraph (d) and
this paragraph (e) and in Sections 7 and 8 hereof, the Underwriters will pay
their own expenses, including the expense of preparing, printing and reproducing
any agreement among underwriters, the fees and expenses of ▇▇▇▇▇▇▇, Swaine &
▇▇▇▇▇ in its role as counsel to the Underwriters, any transfer taxes on resale
of any of the Class A Certificates by them and advertising expenses connected
with any offers that the Underwriters may make).
(f) The Bank will arrange for the qualification of the Class A
Certificates for sale under the laws of such jurisdictions as the Underwriters
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Class A Certificates and will arrange for the
determination of the legality of the Class A Certificates for purchase by
institutional investors.
(g) For so long as the Class A Certificates are outstanding,
the Bank shall deliver to the Underwriters by first-class mail and as soon as
practicable a copy of all reports and notices delivered to the Trustee or the
Certificateholders under the Pooling and Servicing Agreement or to the Agent
under the
8
Loan Agreement, and any other material relating to the Bank or the Trust that is
reasonably available to the Bank and necessary for any Underwriter to deliver a
prospectus in connection with market-making activities as required by the rules
and regulations of the Commission.
(h) For so long as the Class A Certificates are outstanding,
the Bank will furnish to the Underwriters (i) as soon as practicable after the
end of each fiscal year, all documents required to be distributed to Class A
Certificateholders or filed with the Commission and (ii) as soon as practicable
after filing, any other information concerning the Bank filed with any
government or regulatory authority which is otherwise publicly available, as the
Underwriters may reasonably request. The Bank will register the Certificates
under the Exchange Act within 120 days after the end of the fiscal year of the
Trust during which the offering of the Certificates to the public occurred.
(i) To the extent, if any, that any rating provided with
respect to the Class A Certificates set forth in Section 6(m) hereof is
conditional upon the furnishing of documents reasonably available to the Bank,
the Bank shall furnish such documents.
Section 6. Conditions of Underwriters' Obligation. The
obligation of the Underwriters to purchase and pay for the Class A Certificates
on the Closing Date shall be subject to the accuracy of the representations and
warranties of the Bank contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Bank made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Bank of
its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters shall agree in writing to a
later time, the Registration Statement shall have become effective not later
than (i) 6:00 p.m. New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m. New York
City time on such date or (ii) 12:00 noon on the business day following the day
on which the public offering price was determined, if such determination
occurred after 3:00 p.m. New York City time on such date; if filing of the
Prospectus, or any supplements thereto, is required pursuant to Rule 424(b), the
Prospectus, and any supplements thereto, shall have been filed in the manner and
within the time period required by Rule 424(b); and 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 threatened.
9
(b) The Bank shall have delivered to the Underwriters a
certificate, dated the Closing Date, signed by its Chairman of the Board,
President, Vice Chairman of the Board, Executive Vice President, Senior Vice
President, Vice President, principal financial officer, principal accounting
officer, treasurer or cashier to the effect that the signer of such certificate
has carefully examined the Underwriting Agreements, the Pooling and Servicing
Agreement, the Loan Agreement, the Prospectus (and any supplements thereto) and
the Registration Statement and that:
(i) the representations and warranties of the Bank in this
Agreement are true and correct at and as of the Closing Date as if made
on and as of the Closing Date (except to the extent they expressly
relate to an earlier date, in which case the representations and
warranties of the Bank are true and correct as of such earlier date);
(ii) the Bank has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
under this Agreement at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the signer,
threatened; and
(iv) since the date of the most recent financial statements of
the Bank delivered to the Underwriters pursuant to Section 1(g) hereof,
there has been no material adverse change in the condition (financial
or otherwise) of the Bank whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Registration Statement and the Prospectus.
(c) The Underwriters shall have received from ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Senior Vice President and General Counsel of UCS, a favorable opinion
dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel to the Underwriters, to the effect that:
(i) UCS has been duly organized as a corporation and is
validly existing and in good standing under the laws of the State of
Delaware, is duly qualified to do business and is in good standing
under the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business, and has full corporate power and authority to own its
properties, to conduct its business as described in the Registration
Statement and the Prospectus, to enter into and perform its obligations
under the Underwriting Agreements, the Loan Agreement, the Depository
Agreement and the Pooling and
10
Servicing Agreement and to perform its obligations and
transactions contemplated hereby and thereby;
(ii) the Pooling and Servicing Agreement, the Loan Agreement,
the Depository Agreement, the Underwriting Agreements and the
Certificates have each been duly authorized, executed and delivered by
the Bank;
(iii) neither the execution nor the delivery of the
Underwriting Agreements, the Pooling and Servicing Agreement, the Loan
Agreement or the Depository Agreement nor the issuance or delivery of
the Certificates, nor the consummation of any of the transactions
contemplated herein or therein, nor the fulfillment of the terms of the
Certificates, the Underwriting Agreements, the Pooling and Servicing
Agreement, the Loan Agreement or the Depository Agreement will conflict
with or violate, result in a material breach of or constitute a default
under (A) any term or provision of the charter or by-laws of UCS or the
Bank or any statute or regulation currently applicable to UCS or the
Bank, (B) any term or provision of any order known to such counsel to
be currently applicable to UCS or the Bank of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over UCS or the Bank, or (C) any term or provision of any indenture or
other agreement or instrument known to such counsel to which UCS or the
Bank is a party or by which UCS or any of their properties are bound;
(iv) except as otherwise disclosed in the Prospectus (and any
supplements thereto) or the Registration Statement, there is no pending
or, to the best knowledge of such counsel, threatened action, suit or
proceeding before any court or governmental agency, authority or body
or any arbitrator with respect to the Trust, the Certificates, the
Pooling and Servicing Agreement, the Underwriting Agreements, the Loan
Agreement or the Depository Agreement or any of the transactions
contemplated herein or therein or with respect to UCS or the Bank
which, in the case of any such action, suit or proceeding with respect
to UCS or the Bank if adversely determined, would have a material
adverse effect on the Certificateholders or the Trust or upon the
ability of UCS or the Bank to perform its obligations under the Pooling
and Servicing Agreement.
(v) no approval, authorization, consent, order, registration,
filing, qualification, license or permit of or with any court or
governmental agency or body is required for the execution and delivery
by UCS or the Bank of the Certificates or any of the transactions
contemplated in the Underwriting Agreements, the Pooling and Servicing
Agreement, the Loan Agreement or the Depository Agreement, except such
as have been obtained under the Act and such as
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may be required under the blue sky laws of any jurisdiction inside the
United States in connection with the purchase and distribution of the
Certificates by the Underwriters and the Class B Underwriters and such
filings or other approvals (specified in such opinion) as have been
made or obtained;
(d) The Underwriters shall have received from counsel to the
Bank, a favorable opinion dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel to the Underwriters, to the effect
that:
(i) the Pooling and Servicing Agreement and the Loan Agreement
have each been duly authorized, executed and delivered by the Bank and
each constitutes the legal, valid and binding agreement of the Bank
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally from
time to time in effect and to the application of general principles of
equity);
(ii) the Underwriting Agreements have been duly authorized,
executed and delivered by the Bank;
(iii) the Certificates have been duly authorized and, when
executed and authenticated in accordance with the terms of the Pooling
and Servicing Agreement and in the case of the Class A Certificates
delivered to and paid for by the Underwriters pursuant to this
Agreement, and, in the case of the Class B Certificates, delivered to
and paid for by the Class B Underwriters pursuant to the Class B
Underwriting Agreement, will be validly issued and outstanding,
enforceable in accordance with their terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally from
time to time in effect and to the application of general principles of
equity) and will be entitled to the benefits of the Pooling and
Servicing Agreement;
(iv) neither the execution nor the delivery of the
Underwriting Agreements, the Pooling and Servicing Agreement, the Loan
Agreement or the Depository Agreement nor the issuance or delivery of
the Certificates, nor the consummation of any of the transactions
contemplated herein or therein, nor the fulfillment of the terms of the
Certificates, the Underwriting Agreements, the Pooling and Servicing
Agreement, the Loan Agreement or the Depository Agreement will conflict
with or violate, result in a material breach of or constitute a default
under any Federal or New York statute or regulation currently
applicable to the Trust;
12
(v) no approval, authorization, consent, order, registration,
filing, qualification, license or permit of or with any Federal or New
York court or governmental body or agency is required for the
consummation by the Trust of the transactions contemplated in the
Underwriting Agreements, the Pooling and Servicing Agreement, the
Depository Agreement or the Loan Agreement or in connection with the
issuance of the Certificates, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction inside the United States in connection with the purchase
and distribution of the Class A Certificates by the Underwriters and
the Class B Underwriters and such filings or approvals as have been
made and obtained;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Prospectus or any supplements thereto
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have
been instituted or threatened; the Registration Statement and the
Prospectus (and any supplements thereto) (other than financial and
statistical information contained therein as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Act and the rules thereunder;
(vii) the Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended. The
Trust is not now, and following the sale of the Certificates to the
Underwriters and the Class B Underwriters will not be, required to be
registered under the Investment Company Act of 1940, as amended;
(viii) such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any 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 (and any supplements
thereto) includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
(other than financial and statistical information contained therein as
to which such counsel need express no opinion);
(ix) the Certificates, the Underwriting Agreements, the Loan
Agreement and the Pooling and Servicing Agreement conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus (and any supplements
thereto); and
13
(x) the statements in the Registration Statement under the
heading "Certain Legal Aspects of the Receivables" (other than
"Consumer Protection Laws") to the extent that they constitute
statements of matters of law or legal conclusions with respect thereto,
are correct in all material respects.
In rendering such opinion counsel may rely (A) as to clauses
(i), (ii) and (xi) of this paragraph (d), insofar as they relate to the Bank, on
the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of UCS, (B) as to matters
involving the application of laws other than the General Corporation Law of the
State of Delaware or laws of any jurisdiction other than the State of New York
and the United States, to the extent deemed proper and stated in such opinion,
upon the opinion of other counsel of good standing believed by such counsel to
be reliable and acceptable to the Underwriters and counsel to the Underwriters,
and (C) as to matters of fact, to the extent deemed proper and as stated
therein, on certificates of responsible officers of the Trust, the Bank and
public officials.
(e) The Underwriters shall have received from Cravath, Swaine
& ▇▇▇▇▇, (i) in its capacity as counsel to the Underwriters, a favorable opinion
dated the Closing Date, with respect to the issuance and sale of the
Certificates, the Pooling and Servicing Agreement, the Registration Statement,
the Prospectus and such other related matters as the Underwriters may reasonably
require; and (ii) in its capacity as special Federal tax and ERISA counsel for
the Bank and the Trust, a favorable opinion dated the Closing Date, to the
effect that the statements in the Registration Statement and the Basic
Prospectus under the heading "Tax Matters" (other than "Limits of the
Discussion") accurately describe the material Federal income tax consequences to
holders of the Certificates, and the statements in the Registration Statement
and the Basic Prospectus under the heading "Benefit plan investors", to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Certificates
under ERISA; and the Bank shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass on all such
matters.
In giving their opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ may rely (A)
upon the opinions of counsel delivered pursuant to subsection (c) above, (B) as
to matters involving the application of laws of any jurisdiction other than the
State of New York, the United States or the General Corporation Law of the State
of Delaware, to the extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable, and (C) as to
matters of fact, to the extent deemed proper and as stated therein on
certificates of responsible officers of the Trust, the Bank, and public
14
officials. References to the Prospectus in this paragraph (e)
include any supplements thereto.
(f) At the Execution Time and at the Closing Date, KPMG LLP
shall have furnished to the Underwriters a letter or letters, dated respectively
as of the date of this Agreement and as of the Closing Date, in form and
substance satisfactory to the Underwriters and counsel to the Underwriters,
confirming that they are certified independent public accountants and stating in
effect that (i) they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Trust and the
Bank) set forth in the Registration Statement and the Prospectus (and any
supplements thereto), agrees with the accounting records of the Trust and the
Bank, excluding any questions of legal interpretation, and (ii) they have
performed certain specified procedures with respect to the computer programs
used to select the initial Eligible Accounts and to generate information with
respect to the Accounts set forth in the Registration Statement and the
Prospectus (and any supplements thereto).
(g) The Underwriters shall have received evidence satisfactory
to them that, on or before the Closing Date, UCC-1 financing statements have
been filed in the offices of the Secretaries of State of Florida and Georgia and
such other jurisdictions as counsel to the Bank deems appropriate to reflect the
interest of the Trust in the Receivables and the proceeds thereof.
(h) The Loan Agreement shall have been duly authorized,
executed and delivered by each party thereto on or prior to the Closing Date.
(i) The Underwriters and the Bank shall have received from
counsel to the Agent admitted in [ ] (with respect to the Agent, the "Home
Country"), reasonably acceptable to the Underwriters and the Bank, favorable
opinions, dated the Closing Date and satisfactory in form and substance to the
Underwriters, counsel to the Underwriters, the Bank and their counsel, to the
effect that:(1)
(i) the Agent is a corporation duly organized and validly
existing under the laws of the Home Country and has the corporate power
and authority under the laws of the Home Country to execute, deliver
and perform its obligations under the Loan Agreement through the
Branch;
--------
1 Adapt to each specific Home Country.
15
(ii) the Loan Agreement has been duly authorized and, when
executed and delivered by the Agent through the Branch, will constitute
the valid and legally binding obligation of the Agent enforceable
against the Branch in accordance with its terms, subject, as to
enforcement, to (A) bankruptcy, insolvency, reorganization,
liquidation, readjustment of debt and other laws and equitable
principles relating to or affecting the enforcement of creditors'
rights generally as they may be applied in the event of the bankruptcy,
insolvency, reorganization, liquidation or readjustment of debt of, or
the appointment of a receiver with respect to the property of, or a
similar event applicable to, the Branch, and (B) the effect of any
moratorium or similar occurrence affecting the Branch;
(iii) the Loan Agreement is enforceable in accordance with its
terms against the Agent's head office in the Home Country if the Branch
defaults in its obligations thereunder, subject, as to enforcement, to
(A) bankruptcy, insolvency, reorganization, liquidation, readjustment
of debt and other laws and equitable principles relating to or
affecting the enforcement of creditors' rights generally as they may be
applied in the event of the bankruptcy, insolvency, reorganization,
liquidation or readjustment of debt of, or the appointment of a
receiver with respect to the property of, or a similar event applicable
to, the Agent, and (B) the effect of any moratorium or similar
occurrence affecting the Agent;
(iv) no consent or approval of any governmental authority in
the Home Country is required as a condition to the validity of the Loan
Agreement;
(v) the choice of the law of the State of New York to govern
the Loan Agreement is valid under the laws of the Home Country, and a
court in the Home Country would uphold such choice of law in a suit,
action or other proceeding on the Loan Agreement brought in a court of
the Home Country; and
(vi) any judgment for a fixed and definite sum of money
rendered by the courts of the State of New York or the United States of
America located in the State of New York, in respect of any suit,
action or other proceeding against the Branch for the enforcement of
the Loan Agreement will, upon request, be declared valid and
enforceable against the Agent by the competent courts of the Home
Country, without reexamination of the matters adjudicated upon, if such
judgment is not subject to appeal and is enforceable according to the
laws of the State of New York or United States Federal law. However,
such judgment will not be enforced if its contents are in violation of
fundamental principles of the Home Country legal system or if it has
16
been rendered in violation of such principles. As a general rule it can
be stated that judgments of United States Federal courts and of courts
of the State of New York are enforceable in the Home Country, and such
counsel knows of no reason why such judgments would be a violation of
the fundamental principles of the Home Country legal system.
(j) The Underwriters and the Bank shall have received from
United States counsel for the Agent reasonably acceptable to the Underwriters
and the Bank, a favorable opinion, dated the Closing Date and satisfactory in
form and substance to the Underwriters, counsel to the Underwriters, the Bank
and their counsel to the effect that:
(i) the Agent is licensed by the Superintendent of Bank of the
State of New York to maintain a branch for the conduct of a banking
business at the Branch's address in New York City;
(ii) no authorization, consent or approval of or by any
governmental authority of the United States or the State of New York is
necessary for the execution, delivery and performance by the Agent or
the Branch of the Loan Agreement, except such authorizations, consents
and approvals as are in full force and effect;
(iii) the Loan Agreement has been duly authorized, executed
and delivered by the Branch; and
(iv) the Loan Agreement constitutes the legal, valid and
binding obligation of the Agent and the Branch, enforceable against the
Agent and the Branch in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, moratorium, readjustment of debt or other
similar laws affecting the enforcement of creditors' rights generally,
as such laws may be applied in the event of a bankruptcy, insolvency,
reorganization, liquidation, moratorium, readjustment of debt or other
similar proceedings of or affecting the Agent or the Branch, and
subject to the application of general principles of equity regardless
of whether such enforceability is considered in a proceeding at law or
in equity.
(k) The Underwriters and the Bank shall have received from
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Trustee, a favorable
opinion, dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel to the Underwriters, the Bank and its counsel, to the
effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a banking corporation under the laws of the State of New
York, and has the power and authority
17
(corporate and other) to enter into, and to take all action
required of it under the Pooling and Servicing Agreement and
the Loan Agreement;
(ii) the Pooling and Servicing Agreement and the Loan
Agreement have each been duly authorized, executed and delivered by the
Trustee and each constitutes a legal, valid and binding agreement of
the Trustee, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors against the Trustee generally, as
such laws would apply in the event of bankruptcy, insolvency,
liquidation or reorganization or any moratorium or similar occurrence
affecting the Trustee, and the application of 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 and the Loan Agreement by the Trustee and the performance by
the Trustee of the terms of each do not conflict with or result in a
violation of (A) any law of the United States of America or the State
of New York or any regulation governing the banking or trust powers of
the Trustee, or (B) the articles 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 its execution and
delivery of the Pooling and Servicing Agreement and the Loan Agreement
or the performance by the Trustee of the terms of the Pooling and
Servicing Agreement and the Loan Agreement.
(l) The Underwriters and the Bank shall have received from
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & Getzen a favorable opinion, dated the
Closing Date and satisfactory in form and substance to the Underwriters, the
Bank and its counsel to the
effect that:
(i) insofar as the Georgia UCC is applicable (without regard
to principles of conflicts of laws), except for any Receivable that is
evidenced by an instrument or chattel paper, the Receivables will
constitute either "general intangibles" or "accounts," in each case as
defined under the Georgia UCC Section 9-106.
18
(ii) if the transfer of the Receivables to the Trustee
pursuant to the Pooling and Servicing Agreement constituted a true sale
of the Receivables to Trustee, then, to the extent that Georgia law
governs the perfection and the effect of perfection or nonperfection of
such sale:
(a) with respect to Receivables in existence on the
date hereof, such sale transferred all of the right, title,
and interest of the Bank in and to such Receivables, free and
clear of any Liens now existing or hereafter created, but
subject to the rights of the Transferor or any Additional
Transferor as the holder of the Transferor's Certificate;
(b) with respect to Receivables which come into
existence after the date hereof, upon creation of such
Receivables and the subsequent transfer of such Receivables to
Trustee in accordance with the Pooling and Servicing Agreement
and receipt by the Bank of the consideration therefor required
pursuant to the Pooling and Servicing Agreement, such sale
will transfer all of the right, title, and interest of the
Bank in and to such Receivables to Trustee, free and clear of
any Liens, but subject to the rights of the Transferor or any
Additional Transferor as the holder of the Transferor's
Certificates;
and, in either case, no further action will thereafter be required
under the Georgia UCC to protect Trustee's ownership interest in such
Receivables against creditors of, or subsequent purchasers from, the
Bank. However, if the Receivables constitute "general intangibles"
rather than "accounts," in each case as defined in the Georgia UCC
Section 9-106, it is arguable that Trustee's ownership interest with
respect to Receivables which come into existence after the date hereof
will be subject to Liens which are in existence on the day such
Receivables come into existence. Nonetheless, a Georgia court,
following proper consideration of prevailing commercial practices and
other relevant factors, should hold that Trustee's ownership is not
subject to such Liens. Unless the Obligor in respect of a Receivable
has received notice of the assignment thereof (such notice not being
contemplated by the Pooling and Servicing Agreement): (i) in the event
a Georgia court deems that the State of Georgia-Financing
Statement-UCC-1 and Schedule I thereto do not constitute notice of
Trustee's ownership interest therein to either the Obligor or second
assignees of such Receivable, bona fide second assignees of such
Receivable may be deemed in certain instances to have a superior
interest in such Receivable; and (ii) bona fide payments made by such
Obligor to the Bank, or a second assignee of such Receivable (as to
which such Obligor has received notice of such assignment) will
discharge such
19
Obligor's obligations to the extent of such payment, and such payment
will be recoverable only from the Bank, or, in certain cases, such
second assignee, as the case may be.
(iii) if the transfer of the Receivables to Trustee pursuant
to the Pooling and Servicing Agreement does not constitute a true sale
of such Receivables to Trustee, assuming that the Bank has rights in
the Receivables and the proceeds thereof, and that the Trustee gives
value to the Bank under the Pooling and Servicing Agreement, then,
insofar as the Georgia UCC is applicable (without regard to principles
of conflicts of laws), the Pooling and Servicing Agreement creates a
valid security interest in favor of Trustee in, the Bank's right,
title, and interest in and to such Receivables and the proceeds thereof
securing the obligations of the Bank thereunder. Such security interest
constitutes a perfected security interest in such Receivables and the
proceeds thereof subject to no prior or equal Liens, enforceable as
such against creditors of, and subsequent purchasers from the Bank.
(m) The Class A Certificates shall be given the highest
investment grade rating by ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇"), and
Standard & Poor's Ratings Services ("S&P"), and neither S&P nor Moody's shall
have placed the Class A Certificates under review with possible negative
implications.
(n) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Trust, the Bank or Citicorp the
effect of which, in any case referred to above, is, in the judgment of the
Underwriters (after consultation with the Bank), so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the delivery
of the Certificates as contemplated by the Registration Statement and the
Prospectus (and any supplements thereto).
(o) The Bank shall have used its best efforts to cause the
Class A Certificates to be approved for listing on the Luxembourg Stock Exchange
on or before the Closing Date.
(p) Simultaneously with or prior to the Closing, $[ ]
aggregate principal amount of the Class B Certificates shall have been sold to
the Class B Underwriters.
(q) Simultaneously with or prior to the Closing $[ ] aggregate
principal amount of Collateral Interest shall have been sold to the Collateral
Interest Holder.
(r) The Underwriters and counsel to the Underwriters
shall have received such information, certificates and documents
20
as the Underwriters or counsel to the Underwriters may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions or certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel to the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancelation shall be given to the Trust and the
Bank in writing or by telephone or telegraph confirmed in writing.
Section 7. Reimbursement of Expenses. If the sale of the Class
A Certificates provided for herein is not consummated because any condition to
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Bank to perform any agreement
herein or to comply with any provision hereof other than by reason of a default
by the Underwriters, the Bank will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of the Class A Certificates.
Section 8. Indemnification and Contribution. (a) The Bank
agrees to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of the Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law 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 a
material fact contained in the Registration Statement for the registration of
the Certificates as originally filed or in any amendment thereof, or in any
Preliminary Prospectus, the Basic Prospectus or the Prospectus, or in any
amendment thereof 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
agree to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) 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 any such
untrue statement or alleged untrue statement or omission
21
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Bank by or on behalf of any Underwriter
specifically for use in connection with the preparation thereof, and (ii) such
indemnity with respect to the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Class A
Certificates which are the subject thereof if such person did not receive a copy
of the Prospectus (or the Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Class A Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in any Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). This indemnity agreement will be in addition to any
liability which the Bank may otherwise have.
(b) Each Underwriter, severally, agrees to indemnify and hold
harmless the Bank, each of its directors, each of the officers who signs the
Registration Statement, and each person who controls the Bank within the meaning
of the Act, to the same extent as the foregoing indemnities from the Bank to
each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Bank by or on behalf of such Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Bank acknowledge that
the statements relating to the Underwriters and this Agreement set forth in the
second sentence under the heading "General risk factors"--"You may not be able
to resell your certificates" and the statements under the heading "Underwriting"
in any Preliminary Prospectus, the Basic Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of any
Underwriter for inclusion in any Preliminary Prospectus, the Basic Prospectus or
the Prospectus, and each Underwriter confirms that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 this Section 8, notify the indemnifying party in writing 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 this Section 8. 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, jointly with any
other indemnifying party similarly notified, to appoint counsel satisfactory to
such indemnified party to represent the
22
indemnified party in such action; provided, however, that if the defendants in
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 which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the indemnified party of
such counsel, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Underwriters in the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) 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 commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable on grounds of policy or otherwise, the Bank, on the one
hand, and the Underwriters, on the other, shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Bank and the Underwriters may be subject in such proportion so that the
Underwriters shall be responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of the Prospectus
bears to the public offering price appearing thereon and the Bank shall be
responsible for the balance; provided, however, that (i) in no case shall any
Underwriter (except as may be provided in the agreement among underwriters
relating to the offering of the Class A Certificates) be responsible for any
amount in excess of the underwriting discount applicable to the Class A
Certificates purchased by such Underwriter hereunder and (ii) no person guilty
of fraudulent misrepresentation (within the
23
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls any Underwriter within the meaning of
the Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Bank within the meaning of the Act, each officer of the
Bank who shall have signed the Registration Statement and each director of the
Bank shall have the same rights to contribution as the Bank, as the case may be,
subject in each case to clauses (i) and (ii) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against any other party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
Section 9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Bank prior to delivery of and payment for the Class A Certificates, if prior
to such time (i) trading in securities generally on the New York or Luxembourg
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such other Exchange, (ii) a banking moratorium shall have
been declared by Federal, New York state authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States of
America, Japan or Europe is such as to make it, in the judgment of the
Underwriters, impractical or inadvisable to market the Class A Certificates.
Section 10. Representations and Indemnities To Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Trust, the Bank or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or the Trust, the Bank or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Class A Certificates. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancelation of this Agreement.
Section 11. Notices. All communications hereunder
shall be in writing and effective only on receipt, and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them c/o [ ], [ADDRESS],
Attention of [ ] and, if sent to the Bank, will be
24
mailed, delivered or telegraphed and confirmed to it at
[ADDRESS], attention of General ▇▇▇▇▇▇▇.
Section 12. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York. This Agreement supersedes all prior
agreements and understandings relating to the subject matter
hereof.
Section 13. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
Section 14. Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 15. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Class A Certificates
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Class A Certificates set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Class A Certificates set forth opposite
the names of all the remaining Underwriters) the Class A Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Class A Certificates
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Class A Certificates set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Class A Certificates, and if such nondefaulting Underwriters do not purchase all
the Class A Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter, the Trust or the Bank. In the event of a default by
any Underwriter as set forth in this Section 15, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Underwriters shall
determine in order that the required changes in the Registration Statement and
the Prospectus (and any supplements thereto) or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to
25
the Bank and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
Section 16. Representation of Underwriters. The Representative
will act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representative will be binding upon all
the Underwriters.
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
26
among the Bank and the several Underwriters.
Very truly yours,
UNIVERSAL BANK, N.A.,
by___________________________
Name:
Title:
ACCEPTED AND AGREED:
[ ]
by___________________________
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
27
SCHEDULE I
------------------------------------------------- ------------------------
Underwriter Principal Amount
[ ]............................. $[ ]
[ ]............................. [ ]
[ ]............................. [ ]
Total ........................................... [ ]
============
28
