1
EXHIBIT 1.1
FIRST NORTH AMERICAN NATIONAL BANK
Transferor
FNANB CREDIT CARD MASTER TRUST
November ____, 1997
UNDERWRITING AGREEMENT
(Standard Terms)
NationsBanc Xxxxxxxxxx Securities, Inc.,
(as Representative of the several Underwriters
listed in Schedule 1 to the Terms Agreement)
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. First North American National Bank ("FNANB"
or the "Transferor") has formed a master trust entitled the FNANB Credit Card
Master Trust (the "Trust"), which will issue, from time to time, asset backed
securities (the "Certificates") in one or more series (each, a "Series"). Each
Certificate will evidence a fractional, undivided percentage interest in the
Trust. The property of the Trust will include receivables (the "Receivables")
generated from time to time in a portfolio of credit card accounts (the
"Accounts"), collections thereon and certain related property to be conveyed to
the Trust by the Transferor (the "Trust Property"). The Certificates to which
this agreement applies (the "Offered Certificates") will be issued pursuant to
the Master Pooling and Servicing Agreement, dated as of October 30, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Pooling and
Servicing Agreement"), among the Transferor, FNANB, as servicer (the
"Servicer"), and First Union National Bank, as trustee (the "Trustee"), as
supplemented by the supplement relating to each Series (each, a "Supplement").
To the extent not defined herein, capitalized terms used herein shall have the
meanings specified in the Pooling and Servicing Agreement and the applicable
Supplement.
2
Each offering of the Certificates to which this Agreement
applies made pursuant to the Registration Statement (as herein defined) will be
made through you or through you and other underwriters for whom you are acting
as representative or through an underwriting syndicate managed by you.
Whenever the Transferor determines to make such an offering of Certificates to
which this Agreement shall apply, it will enter into an agreement (the "Terms
Agreement") providing for the sale of such Certificates to, and the purchase
and offering thereof by, (i) you, (ii) you and such other underwriters (such
other underwriters to be approved by the Transferor, which approval shall not
be unreasonably withheld) who execute the Terms Agreement and agree thereby to
become severally and not jointly obligated to purchase Certificates from the
Transferor or (iii) you and such other underwriters, if any, selected by you
(such other underwriters to be approved by the Transferor, which approval shall
not be unreasonably withheld) as have authorized you to enter into such Terms
Agreement on their behalf (in each case, the "Underwriters"). (It is
understood that the Transferor shall not be obligated to sell any particular
Series or Class of Certificates offered pursuant to the Registration Statement
to you or you and other Underwriters.) Execution of a Terms Agreement by the
Transferor shall be conclusive evidence of the Transferor's approval of all
Underwriters named therein. Such Terms Agreement shall specify the initial
principal amount of Certificates of each Series and Class of the Certificates
to be issued and their terms not otherwise specified in this Agreement, the
price at which such Certificates are to be purchased by the Underwriters from
the Transferor, the aggregate amount of Certificates to be purchased by you and
any other Underwriter that is a party to such Terms Agreement and the initial
public offering price or the method by which the price at which such
Certificates are to be sold will be determined. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written communication between or among the
Underwriters and the Transferor. Each such offering of the Certificates for
which a Terms Agreement is entered into will be governed by this Agreement, as
supplemented by such Terms Agreement, and this Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon the Underwriters
participating in the offering of such Certificates.
2. Representations and Warranties of the Transferor. The
Transferor represents and warrants to you as of the date hereof and to the
Underwriters named in the appli-
2
3
cable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (having the
registration number stated in the applicable Terms Agreement),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Certificates and the
offering thereof from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed
with the Securities and Exchange Commission (the "Commission") (which
may have included one or more preliminary prospectuses and prospectus
supplements (each, a "Preliminary Prospectus") meeting the
requirements of Rule 430 of the Act), and such registration statement,
as amended, has become effective; such registration statement, as
amended, and the prospectus relating to the sale of the Certificates
offered thereby by the Transferor constituting a part thereof, as from
time to time amended or supplemented (including any prospectus filed
with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission (the "Rules and Regulations") under the
Act), are respectively referred to herein as the "Registration
Statement" and the "Prospectus"; provided, however, that a supplement
to the Prospectus prepared pursuant to Section 5(a) hereof (each, a
"Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of the Certificates to
which it relates; and the conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the
Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms
Agreement, the Registration Statement and the Prospectus, except with
respect to any modification to which you have agreed in writing, shall
be in all substantive respects in the form furnished to you prior to
such date or, to the extent not completed on such date, shall contain
only such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus that has
previously been furnished to you) as the Transferor has advised you,
prior to such time will be included or made therein;
3
4
(c) on the effective date of the Registration Statement,
the Registration Statement and the Prospectus complied in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material
fact or, in the case of the Registration Statement, omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading and, in the case of the
Prospectus, omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, and on the date of each Terms Agreement and
on each Delivery Date (as defined in Section 3 hereof), the
Registration Statement and the Prospectus will comply in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and neither of such documents included or will include
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; provided, however, that the
foregoing does not apply to information contained in or omitted from
either of such documents based upon written information furnished to
the Transferor by any Underwriter specifically for use in connection
with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a national banking association duly
organized and validly existing in good standing under the laws of the
United States, with full power, authority and legal right to own its
properties and conduct its business as described in the Prospectus, is
duly qualified to do business and is in good standing (or is exempt
from such requirements), and has obtained all necessary licenses and
approvals (except with respect to the state securities or Blue Sky
laws of various jurisdictions) in each jurisdiction in which failure
to so qualify or obtain such licenses and approvals would have a
material adverse effect on the inter- ests of Certificateholders under
the Pooling and Servicing Agreement or under any Supplement;
(e) the Certificates of the related Series, on the date
of such Terms Agreement, will have been duly and validly authorized
and, when such Certificates are duly and validly executed by or on
behalf of the Transferor, authenticated by the Trustee and delivered
in accordance with the Pooling and Servicing Agreement and
4
5
the applicable Supplement and delivered and paid for as provided
herein or in such Terms Agreement, will be validly issued and
outstanding and entitled to the benefits and security afforded by the
Pooling and Servicing Agreement and the applicable Supplement;
(f) the execution, delivery and performance by the
Transferor of this Agreement, each applicable Terms Agreement, any
applicable agreement relating to an Enhancement (an "Enhancement
Agreement"), the Pooling and Servicing Agreement, each applicable
Supplement and the Certificates of a Series, and the consummation by
the Transferor of the transactions provided for herein and therein,
have been, or will have been, duly authorized by the Transferor by all
necessary action on the part of the Transferor; and neither the
execution and delivery by the Transferor of such instruments, nor the
performance by the Transferor of the transactions herein or therein
contemplated, nor the compliance by the Transferor with the provisions
hereof or thereof, will (i) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default under, any of
the provisions of the articles of association or by-laws of the
Transferor, or (ii) conflict with any of the provisions of any law,
government rule, regulation, judgment, decree or order binding on the
Transferor or its properties or (iii) conflict with any of the
provisions of any material indenture, mortgage, contract or other
instrument to which the Transferor is a party or by which it is bound
or (iv) result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument;
(g) when executed and delivered by the parties thereto,
the Pooling and Servicing Agreement, the applicable Supplement and any
applicable Enhancement Agreement will each constitute a legal, valid
and binding agreement of the Transferor, enforceable against the
Transferor in accordance with its terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
in general or the rights of creditors of national banking associations
as such laws would apply in the event of the insolvency, liquidation
or reorganization or other similar occurrence with respect to the
Trans-
5
6
feror or in the event of any moratorium or similar occurrence
affecting the Transferor and to general principles of equity;
(h) all approvals, authorizations, consents, orders or
other actions of any person, corporation or other organization, or of
any court, governmental agency or body or official (except with
respect to the state securities or Blue Sky laws of various
jurisdictions), required in connection with the valid and proper
authorization, issuance and sale of the Certificates of a Series
pursuant to this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement and the applicable Supplement, have
been or will be taken or obtained on or prior to the applicable
Delivery Date;
(i) this Agreement has been and, as of the date thereof,
the applicable Terms Agreement will have been, duly executed and
delivered by the Transferor;
(j) the Transferor has delivered to you complete and
correct copies of publicly available portions of the Consolidated
Reports of Condition and Income of the Transferor for the three most
recent years for which such reports are available, as submitted to the
Comptroller of the Currency; 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 Transferor since the last such report;
(k) any taxes, fees and other governmental charges in
connection with the execution, delivery and performance by the
Transferor of this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement, the applicable Supplement, any
applicable Enhancement Agreement and the Certificates of the related
Series shall have been paid or will be paid by or on behalf of the
Transferor at or prior to the applicable Delivery Date to the extent
then due; and
(l) the Certificates of the related Series, the Pooling
and Servicing Agreement, the applicable Supplement and any
applicable Enhancement Agreement conform in all material respects to
the description thereof in the Prospectus.
6
7
3. Purchase, Sale and Delivery of Certificates. Delivery of
and payment for the Certificates to which this Agreement applies will be made
at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other offices specified in the applicable
Terms Agreement, at such time as shall be specified in the applicable Terms
Agreement, or at such other time thereafter or other place as you and the
Transferor shall agree upon, each such time being herein referred to as a
"Delivery Date". Delivery of such Certificates shall be made by the Transferor
to the Underwriters against payment of the purchase price specified in the
applicable Terms Agreement in same day funds wired to such bank as may be
designated by the Transferor, or by such other manner of payment as may be
agreed upon by the Transferor and you. Unless otherwise provided in the
applicable Terms Agreement, payment for the Certificates shall be made against
delivery through the facilities of The Depository Trust Company ("DTC") of
Book-Entry Certificates to you for the respective accounts of the several
Underwriters. Unless otherwise provided in a Terms Agreement, the Certificates
so to be delivered shall be global certificates registered in the name of Cede
& Co., as nominee for DTC. The number and denomination of definitive
certificates so delivered shall be as specified by DTC. The definitive
certificates for the Certificates will be made available for inspection and
packaging by you at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, or
such other offices specified in the applicable Terms Agreement, not later than
1:00 P.M., New York City time, on the Business Day prior to the Delivery Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Certificates subject to this
Agreement for sale to the public as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby
covenants and agrees with you and the several Underwriters participating in the
applicable offering of the Certificates that:
(a) immediately following the execution of each Terms
Agreement, the Transferor will prepare a Prospectus Supplement setting
forth the amount of Certificates covered thereby and the terms thereof
not otherwise specified in the Prospectus, the price at which such
Certificates are to be purchased by the Underwriters from the
Transferor, either the initial public offering
7
8
price or the method by which the price at which such Certificates are
to be sold will be determined, the selling concessions and allowances,
if any, and such other information as the Transferor deems appropriate
in connection with the offering of such Certificates, but the
Transferor will not file any amendments to the Registration Statement
as in effect with respect to the Certificates, or any amendments or
supplements to the Prospectus, unless it shall first have delivered
copies of such amendments or supplements to you, or if you shall have
reasonably objected thereto promptly after receipt thereof; the
Transferor will immediately advise you and your counsel (i) when
notice is received from the Commission that any post-effective
amendment to the Registration Statement has become or will become
effective and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale
of the Certificates or of any proceedings or examinations that may
lead to such an order or communication, whether by or of the
Commission or any authority administering any state securities or Blue
Sky law, as soon as practicable after the Transferor is advised
thereof, and will use every reasonable effort both to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued;
(b) if, at any time when a Prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Act or the Rules and
Regulations, the Transferor will promptly prepare and (subject to
review and no reasonable objection by you as described in Section 5(a)
hereof) file with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect
such compliance and, within two Business Days thereafter, furnish to
you as many copies of the Prospectus as amended or supplemented as you
may reasonably request; provided, however, that your consent to any
amendment shall not constitute a waiver of any of the conditions of
Section 6 hereof;
8
9
(c) the Transferor will make generally available to the
holders of the Certificates (the "Certificateholders") of the related
Series (the Certificateholders being the applicable Clearing Agency in
the case of Book-Entry Certificates), in each case as soon as
practicable, a statement which will satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Commission with respect to the
related Series of Certificates;
(d) the Transferor will furnish to each Underwriter
copies of the Registration Statement (at least one copy to be
delivered to each Underwriter will be signed and will include all
documents and exhibits thereto or incorporated by reference therein),
the Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as you
reasonably request;
(e) the Transferor will assist you in arranging for the
qualification of the Certificates for sale and the determination of
their eligibility for investment under the laws of such jurisdictions
as you designate and will continue to assist you in maintaining such
qualifications in effect so long as required for the distribution and
will file or cause to be filed such statements and reports with
respect to the distribution as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as provided
above; provided, however, that neither the Transferor nor the Trust
shall be required to qualify to do business in any jurisdiction where
it is now not qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction in
which it is now not subject to service of process;
(f) except as otherwise specified in the related Terms
Agreement, the Transferor will pay all expenses incident to the
performance of its obligations under this Agreement and the related
Terms Agreement and will reimburse the Underwriters for any expenses
reasonably incurred by them in connection with qualification of the
related Series of Certificates and determination of their eligibility
for investment under the laws of such jurisdictions as you may
designate (including reasonable fees and disbursements of the
Underwriters' counsel) and the printing of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating of
such Certificates and, to the extent
9
10
previously agreed upon with you, for expenses incurred in distributing
the Prospectus (including any amendments and supplements thereto) to
the Underwriters; and
(g) the Transferor will, for so long as Certificates purchased
pursuant hereto remain outstanding, deliver or cause to be delivered
to you copies of the annual servicer's certificate and the annual
accountants' reports delivered to the Trustee pursuant to the Pooling
and Servicing Agreement.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters named in any Terms Agreement to
purchase and pay for the Certificates of the related Series subject to this
Agreement and such Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Transferor herein as of the
date hereof, the date of the applicable Terms Agreement and the applicable
Delivery Date, to the accuracy of the statements of the Transferor made
pursuant to the provisions thereof, to the performance by the Transferor in all
material respects of its obligations hereunder and to the following additional
conditions precedent:
(a) you shall have received a letter from KPMG Peat
Marwick, or such other independent public accountants specified in the
applicable Terms Agreement, dated the date of the applicable Terms
Agreement, and, if requested by you, a letter from such accountants,
dated the Delivery Date, each in the forms heretofore agreed to;
(b) all actions required to be taken and all filings
required to be made by the Transferor under the Act prior to the
Delivery Date for the Certificates of such Series shall have been duly
taken or made; and prior to the applicable Delivery Date, no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Transferor, threatened by the
Commission;
(c) unless otherwise specified in the applicable Terms
Agreement, the Certificates subject to this Agreement and offered by
means of the Registration Statement shall be rated at the time of
issuance in the highest rating category by the nationally recognized
statistical rating organization[s] specified in the applicable Terms
Agreement and shall not have been
10
11
placed on any credit watch with a negative implication for downgrade;
(d) you shall have received an opinion of McGuire, Woods,
Battle & Xxxxxx, L.L.P. (or such other counsel as shall be specified in
the applicable Terms Agreement), counsel to the Transferor (and of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, or such other counsel as
shall be specified in the applicable Terms Agreement, as to matters of
New York law specified in clause (v) below), dated the applicable
Delivery Date, substantially to the effect that:
(i) the Transferor is a national banking
association duly organized, validly existing and in good
standing under the laws of the United States, with full power
and authority to own its assets and operate 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 Receivables transferred or proposed to be
transferred to the Trust as described in the Prospectus;
(ii) the Transferor has full power and
authority to sign the Registration Statement and to execute
and deliver this Agreement, the applicable Terms Agreement,
any applicable Enhancement Agreement, the Pooling and
Servicing Agreement and the applicable Supplement and to
consummate the transactions contemplated herein and therein;
(iii) the agreements referred to in clause (ii)
above have been authorized by all necessary action on the part
of the Transferor and have been duly executed and delivered by
the Transferor;
(iv) the Certificates have been duly authorized
by all necessary action of the Transferor;
(v) this Agreement, the applicable Terms
Agreement, any applicable Enhancement Agreement, the Pooling
and Servicing Agreement and the applicable Supplement each
constitutes the legal, valid and binding agreement of the
Transferor, enforceable against the Transferor in accordance
with its terms, subject, as to enforcement, to (A) the effect
of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, conservator-
11
12
ship, receivership, or other similar laws of general
applicability relating to or affecting creditors' rights
generally or the rights of creditors of national banking
associations, (B) the application of general principles of
equity (regardless of whether enforceability is considered in
a proceeding in equity or at law) and (C) the unenforceability
under certain circumstances of provisions indemnifying a party
against liability where such indemnification is contrary to
public policy;
(vi) no consent, approval, authorization or
order of, or filing with, any governmental agency or body or
any court is required under applicable Federal banking laws
for the consummation of the transactions contemplated herein,
in the applicable Terms Agreement, the Pooling and Servicing
Agreement, the applicable Supplement or any applicable
Enhancement Agreement, except such as have been obtained or
made and such as may be required under state securities or
Blue Sky laws;
(vii) the execution, delivery and performance by
the Transferor of its obligations under this Agreement, the
applicable Terms Agreement, the Pooling and Servicing
Agreement, the applicable Supplement or any applicable
Enhancement Agreement, the transfer of the Receivables to the
Trust, the issuance and sale of the Certificates, and the
consummation of any other of the transactions contemplated
herein, in the applicable Terms Agreement, the Pooling and
Servicing Agreement, the applicable Supplement or any
applicable Enhancement Agreement, will not 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 Transferor, each as amended, the terms of any
material indenture or other material agreement or instrument
known to such counsel to which the Transferor is a party or by
which it or its properties are bound or any rule, order known
to such counsel, statute or regulation, to the extent the
foregoing relate to Federal banking law, of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Transferor; provided, however,
that such counsel need express no opinion as to state
securities or Blue Sky laws;
12
13
(viii) except as otherwise disclosed in the
Prospectus or the Registration Statement, to the best of such
counsel's knowledge (after reasonable investigation), there
are no actions, proceedings or investigations pending or
threatened before any court, administrative agency or other
tribunal (A) asserting the invalidity of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing
Agreement, the applicable Supplement, any applicable
Enhancement Agreement or the Certificates, (B) seeking to
prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, the
applicable Terms Agreement, the Pooling and Servicing
Agreement, the applicable Supplement, any applicable
Enhancement Agreement or the Certificates, which if adversely
determined would materially and adversely affect the
performance by the Transferor of its obligations under, or the
validity or enforceability of, this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the
applicable Supplement, any applicable Enhancement Agreement or
the Certificates, or (C) seeking adversely to affect the
federal income tax attributes of the Certificates as described
in the Prospectus under the headings "Prospectus Summary --
Tax Status" and "Certain Federal Income Tax Consequences";
(ix) 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 threatened under the Act; and the Registration
Statement and the Prospectus (other than the financial,
numerical and statistical information contained therein as to
which such counsel need 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;
13
14
(x) this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the applicable
Supplement, any applicable Enhancement Agreement and the
Certificates conform in all material respects to the
descriptions thereof contained in the Registration Statement
and the Prospectus; and
(xi) the Pooling and Servicing Agreement and
the applicable Supplement will not be required to be qualified
under the Trust Indenture Act of 1939, as amended, and the
Trust is not now, and immediately following the sale of the
Certificates pursuant hereto will not be, required to be
registered under the 1940 Act.
Such counsel also shall state that, subject to its customary practices
and limitations relating to the scope of such counsel's participation
in the preparation of the Registration Statement and the Prospectus
and its investigation or verification of information contained
therein, it has no reason to believe that at its 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 on the applicable Delivery Date includes any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than financial, numerical and statistical information
contained therein as to which such counsel need express no opinion);
in rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Transferor, the Servicer
and public officials;
(e) you shall have received an opinion of McGuire, Woods,
Battle & Xxxxxx, L.L.P. (or such other counsel as shall be specified in
the applicable Terms Agreement), counsel for the Transferor, dated the
Delivery Date, in form and substance satisfactory to you and your
counsel, to the effect that:
14
15
(i) the statements in the Prospectus under the
heading "Certain Federal Income Tax Consequences" and the
summary thereof under the heading "Prospectus Summary -- Tax
Status," to the extent they constitute matters of Federal law
or legal conclusions with respect thereto, have been reviewed
by such counsel and are correct in all material respects; and
(ii) the statements in the Prospectus under the
headings "Certain Legal Aspects of the Receivables" and to the
extent they constitute matters of Federal law or legal
conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects;
(f) you shall have received an opinion or opinions from
Xxxxxx & Bird LLP (or such other counsel as shall be specified in the
applicable Terms Agreement), special Georgia tax counsel for the
Transferor, dated the Delivery Date, and in form and substance
satisfactory to you and your counsel, to the effect that the Offered
Certificates are characterized as indebtedness for Georgia state income
tax purposes and that the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation
under the laws of the State of Georgia;
(g) you shall have received an opinion or opinions from
McGuire, Woods, Battle & Xxxxxx, L.L.P. (or such other counsel as shall
be specified in the applicable Terms Agreement), special tax counsel
for the Transferor, dated the Delivery Date, and in form and substance
satisfactory to you and your counsel, to the effect that the Offered
Certificates are characterized as indebtedness for Virginia state
income tax purposes and that the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation
under the laws of the Commonwealth of Virginia;
(h) you shall have received an opinion or opinions from
McGuire, Woods, Battle & Xxxxxx, L.L.P. (or such
15
16
other counsel as shall be specified in the applicable Terms
Agreement), special tax counsel to the Transferor, dated the Delivery
Date, and in form and substance acceptable to you and your counsel, to
the effect that the Offered Certificates are characterized as
indebtedness for federal income tax purposes and that the Trust will
not be characterized as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes;
(i) you shall have received an opinion or opinions of
Xxxxxx & Bird LLP (or such other counsel as shall be specified in the
applicable Terms Agreement), special Georgia counsel for the
Transferor, dated the Delivery Date, in form and substance
satisfactory to you and your counsel, with respect to the perfection
and priority of the Trust's interest in the Receivables and with
respect to other related matters in a form previously approved by you
and your counsel;
(j) you shall have received an opinion or opinions of
McGuire, Woods, Battle & Xxxxxx, L.L.P. (or such other counsel as shall
be specified in the applicable Terms Agreement), special counsel for
the Transferor, dated the Delivery Date, in form and substance
satisfactory to you and your counsel, with respect to certain matters
relating to the transfer of the Receivables, with respect to the
validity of the Trust's interest in the Receivables and certain other
matters relating to the effect of receivership of the Transferor on
such interest in the Receivables and with respect to other related
matters in a form previously approved by you and your counsel;
(k) you shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP (or such other counsel as may be named in the
applicable Terms Agreement), special counsel for the Underwriters,
such opinion or opinions, dated the Delivery Date, in form and
substance satisfactory to you, with respect to the organization of the
Transferor, the validity of the Certificates, the Registration
Statement, the Prospectus and other related matters as you may
require, and the Transferor shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters;
(l) you shall have received, with respect to the
Transferor, a certificate, dated the Delivery Date, of
16
17
a Vice President or more senior officer of the Transferor in which
such officer, to the best of his or her knowledge after reasonable
investigation, shall state that (A) the representations and warranties
of the Transferor in this Agreement are true and correct in all
material respects on and as of the Delivery Date, (B) the Transferor
has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder and under the applicable Terms Agreement at or prior to the
Delivery Date, (C) the Registration Statement has become effective, 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 (D) subsequent to
the date of the Prospectus, there has been no material adverse change
in the condition (financial or otherwise) of the Transferor except as
set forth in or contemplated in the Registration Statement and the
Prospectus or as described in such certificate;
(m) you shall have received an opinion of Hunton &
Xxxxxxxx,(or such other counsel as may be named in the applicable Terms
Agreement), counsel to the Trustee, dated the Delivery Date, in form
and substance satisfactory to you and your counsel, to the effect that:
(i) the Trustee has been duly organized and is
validly existing as a national banking association and has the
power and authority to enter into and to perform all actions
required of it under the Pooling and Servicing Agreement, and
the applicable Supplement and any applicable Enhancement
Agreement;
(ii) each of the Pooling and Servicing
Agreement, the applicable Supplement and any applicable
Enhancement Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as such
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship,
receivership or other similar laws now or hereafter in effect
relating to the enforcement of creditors' rights in general,
as such laws would apply in the event of a bankruptcy,
insolvency, liquidation, reorganiza-
17
18
tion, moratorium, conservatorship, receivership or similar
occurrence affecting the Trustee, and (B) 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, the applicable Supplement and any
applicable Enhancement Agreement by the Trustee and the
performance by the Trustee of their respective terms do not
conflict with or result in a violation of (A) any law or
regulation of the United States of America governing the
banking or trust powers of the Trustee, or (B) the articles of
association 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 having jurisdiction over the banking or
trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and
Servicing Agreement, the applicable Supplement and any
applicable Enhancement Agreement or the performance by the
Trustee thereunder;
(n) you shall have received an opinion or opinions of
counsel to the Enhancement Provider, if any, dated the Delivery Date,
and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) the Enhancement Provider is duly organized
and validly existing under the laws of the jurisdiction of its
incorporation, is duly qualified and/or licensed to do
business in all jurisdictions where the nature of its
operations as contemplated in the applicable Enhancement
Agreement requires such qualification, and has the power and
authority (corporate and other) to enter into the applicable
Enhancement Agreement and to perform its obligations
thereunder; and
(ii) each applicable Enhancement Agreement has
been duly authorized, executed and delivered by the
Enhancement Provider, and constitutes the
18
19
legal, valid and binding obligation of the Enhancement
Provider, enforceable against the Enhancement Provider in
accordance with its terms, except as such enforceability may
be limited by (A) bankruptcy, insolvency, liquidation,
reorganization, conservatorship, moratorium, receivership or
other similar laws now or hereafter in effect relating to the
enforcement of creditors' rights in general, as such laws
would apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, conservatorship, moratorium,
receivership or other similar occurrence with respect to the
Enhancement Provider or in the event of any moratorium or
similar occurrence affecting the Enhancement Provider, and (B)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(o) you shall have received reliance letters, if
applicable, with respect to any opinions delivered to the Transferor
by foreign counsel of each provider of Enhancement (the "
Enhancement Provider") for the applicable Series under an Enhancement
Agreement, if any, which opinions shall include matters relating to
(i) the due organization of the Enhancement Provider, (ii) the
authorization, execution, delivery and performance by the Enhancement
Provider of the Enhancement Agreement and the binding effect of the
Enhancement Agreement, and (iii) the enforceability in the foreign
jurisdiction in which such Enhancement Provider is located of a
judgment obtained under the Enhancement Agreement in a United States
federal court or in a court of the State of New York; such reliance
letters shall include all matters that are contained in the opinions
of foreign counsel; and
(p) you shall have received reliance letters with respect to
any opinions that the Transferor is required to deliver to the Rating
Agency.
The Transferor will furnish to you conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification.
(a) The Transferor will indemnify and hold harmless each
Underwriter and each person, if any, who
19
20
controls any Underwriter within the meaning of the Act or the Exchange
Act and the respective officers, directors and employees of each such
person, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may
become subject, under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and will reimburse each Underwriter and each such officer,
director, employee or controlling person for any legal or other
expenses reasonably incurred by such Underwriter and each such
officer, director, employee or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action, subject to the following proviso, as such expenses are
incurred; provided, however, that (i) the Transferor 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 in or omission or alleged
omission made in any such documents in reliance upon and in conformity
with written information furnished to the Transferor by an Underwriter
specifically for use therein and (ii) such indemnity with respect to
any untrue statement or alleged untrue statement or omission or
alleged omission in any Preliminary 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 Certificates which are the subject
thereof, if such person was not given or sent a copy of the Prospectus
including the related Prospectus Supplement excluding documents
incorporated therein by reference, at or prior to the confirmation of
the sale of such Certificates to such person in any case where such
delivery is required by the Act and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in any Preliminary Prospectus and forming the basis for the
related cause of action was corrected in the Prospectus or the related
Prospectus Supplement. This indemnity agreement will be in addi-
20
21
tion to any liability which the Transferor may otherwise have.
(b) Each Underwriter severally, and not jointly, will
indemnify and hold harmless the Transferor, each of its directors,
each of its officers who have signed the Registration Statement and
each person, if any, who controls the Transferor within the meaning of
the Act or the Exchange Act and the respective officers, directors and
employees of each such person against any losses, claims, damages or
liabilities to which the Transferor or any such director, officer or
controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order 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 written information furnished to the Transferor by
such Underwriter specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Transferor or any
such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred. This indemnity agreement will
be in addition to any liability that such Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party of the commencement thereof; but the omission
and/or delay so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than in this Section unless such omission caused actual
prejudice to the party not notified; in case any such action is
brought against any indemnified party, and it notified the
indemnifying party of the commencement thereof, the
21
22
indemnifying party will be entitled to participate therein, and, to
the extent that it may elect by written notice jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with defense thereof other than reasonable costs of
investigation. If the defendants in any 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, 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. No indemnifying party may avoid its duty to indemnify under
this Section 7 if such indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of any judgement in, 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
all claims that are the subject matter of such action. An
indemnifying party shall not be liable for any settlement of any claim
effected without its written consent.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section for any reason other than
as specified therein, the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and
expenses, except to the extent that contribution is not permitted
under Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled, there shall
be considered (i) the relative benefit received by the Transferor on
the one hand and the Underwriters on the other hand from the offering
of the Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by appli-
22
23
cable law, the relative benefits referred to in clause (i) above but
also the relative fault of the Transferor on the one hand and the
Underwriters on the other hand in connection with the statement or
omission that resulted in such liabilities and expenses as well as any
other relevant equitable considerations. The relative benefits
received by the Transferor on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total
net proceeds of the offering of the Certificates (before deducting
expenses) received by the Transferor bear to the total underwriting
discounts and commissions received by the Underwriters in connection
with the offering of the Certificates. The relative fault of the
parties shall be determined by reference to, among other things, the
parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity
to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The
Transferor and the Underwriters agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity
for such purpose).
8. Default of Underwriters. If any Underwriter or
Underwriters participating in an offering of Certificates default in their
obligations to purchase Certificates hereunder and under the Terms Agreement
and the aggregate principal amount of such Certificates which such defaulting
Underwriter or Underwriters agreed, but failed, to purchase does not exceed 10%
of the total principal amount of the Certificates set forth in such Terms
Agreement, you may make arrangement satisfactory to the Transferor for the
purchase of such Certificates by other persons, including any of the
Underwriters participating in such offering, but if no such arrangements are
made within a period of 36 hours after the applicable Delivery Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective total commitments hereunder and under such Terms Agreement, to
purchase the Certificates which such defaulting Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Certificates with respect to which such default or defaults
occur is more than 10% of the total principal amount of the Certificates set
forth in such Terms Agreement and arrangements satisfactory to you and the
Transferor for the purchase of such Certificates by other
23
24
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 Transferor, except as provided in Section 10. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Certificates on the Delivery
Date shall be terminable by the Underwriters by written notice delivered to the
Transferor if at any time on or prior to the Delivery Date (i) trading in
securities generally on the New York Stock Exchange shall have been suspended
or materially limited, or there shall have been any setting of minimum prices
for trading on such exchange or any suspension of trading of the securities of
Circuit City Stores, Inc. on any exchange or in the over-the-counter market,
(ii) a general moratorium on commercial banking activities in New York or
Georgia shall have been declared by any of Federal, New York or Georgia
authorities, (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis, the effect of which on
the financial markets of the United States is such as to make it, in your
reasonable judgement as representative of the Underwriters, impracticable to
market the Certificates on the terms and in the manner contemplated in the
Prospectus, (iv) the rating of another Series of Certificates shall have been
reduced or withdrawn or (v) any change or any development involving a
prospective change, materially and adversely affecting (A) the Trust Property
taken as whole or (B) the business or properties of the Transferor or Circuit
City Stores, Inc. occurs, which, in your reasonable judgment as representative
of the Underwriters, in the case of either (A) or (B), makes it impracticable
to market the Certificates on the terms and in the manner contemplated in the
Prospectus.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements by the Transferor or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Underwriters, the Transferor or any of
their respective officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates.
24
25
If this Agreement is terminated pursuant to Sections 8 and 9 or if for
any reason the purchase of the Certificates by the Underwriters is not
consummated, the Transferor shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 5(f), and the obligations of the
Transferor and the Underwriters pursuant to Section 7 or 8 shall remain in
effect.
11. Notices. All communications hereunder will be in
writing and, if sent to an Underwriter, will be mailed, delivered or telecopied
to NationsBanc Xxxxxxxxxx Securities, Inc., NationsBank Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxxxxx X.
Xxxxx, facsimile number 000-000-0000 and to any other Underwriter at such
address, if any, as is specified in writing to the Transferor for notices
hereunder, or if sent to the Transferor, will be mailed, delivered or telecopied
to 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx,
facsimile number 000-000-0000, or such other address specified in the applicable
Terms Agreement; provided however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telecopied to such Underwriter at the
address furnished by it.
12. 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 7
hereof, and their successors and assigns, and no other person will have any
right or obligation hereunder.
13. Representations of Underwriters. You will act for
the several Underwriters in connection with this financing, and any action
under this Agreement and any Terms Agreement taken by you will be binding upon
all the Underwriters identified in such Terms Agreement.
14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
25
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Transferor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by
the Transferor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
FIRST NORTH AMERICAN NATIONAL
BANK,
as Transferor
By
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
NATIONSBANC XXXXXXXXXX SECURITIES, INC.,
as Representative of the
several Underwriters
By
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
26
27
EXHIBIT A
FIRST NORTH AMERICAN NATIONAL BANK
FNANB CREDIT CARD MASTER TRUST
ASSET BACKED CERTIFICATES
TERMS AGREEMENT
Dated: _________, 19__
To: First North American National Bank, as Transferor under the Master
Pooling and Servicing Agreement dated as of October 30, 1997.
Re: Underwriting Agreement dated November __, 1997 (the "Agreement").
Title: Asset Backed Certificates, Series ______ [State by Class if more
than one Class].
Registration No.: _______________________.
Initial Principal Amount, Series and Class Designation Schedule: [insert
relevant description of Series and Classes of Certificates].
Certificate Rating: [" " by Xxxxx'x Investors Service, Inc.][" " by
Standard & Poor's Investors Service, a division of the XxXxxx-Xxxx Companies,
Inc.][" " by [other Rating Agency]][State by Class if more than one Class].
Certificate Rate: [____% per annum][Floating rate--describe] [State by Class
if more than one Class].
Terms of Sale: [The purchase price for the Certificates to the Underwriter[s]
will be ___% of the aggregate principal amount of the Certificates as of
______, 19__, plus accrued interest at the Certificate Rate from _______, 19__,
together with estimated expenses of approximately $___________.] [The
Underwriters will offer the Certificates to the public from time to time, in
negotiated transactions or otherwise, at varying prices to be determined at the
time of sale.]
Distribution Dates: ___________________.
Delivery Date and Location: __:__ A.M., New York Time, on ______, 19__, or at
such other time not later than seven full business days thereafter as may be
agreed upon, at the offices
A-1
28
of [Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000][xxxxx offices].
Notwithstanding anything in the Agreement or in this Terms Agreement to the
contrary, the Agreement and this Terms Agreement constitute the entire
agreement and understanding among the parties hereto with respect to the
purchase and sale of the above-referenced Certificates. This Terms Agreement
may be amended only by written agreement of the parties hereto.
The Underwriters [named in Schedule 1 hereto agree, severally and
not jointly], subject to the terms and provisions of the Agreement, which is
incorporated by reference herein and made a part hereof, to purchase the
Initial Principal Amount of Certificates [set forth opposite their names in
Schedule 1].
Very truly yours,
NATIONSBANC XXXXXXXXXX
SECURITIES, INC.,
as [Representative][Underwriter]
By
----------------
Name:
Title:
Accepted:
FIRST NORTH AMERICAN
NATIONAL BANK,
as Transferor
By
---------------------------
Name:
Title:
A-2
29
SCHEDULE 1
$_________ Principal Amount of [Class ____] Asset Backed Certificates, Series ______
Principal Amount
----------------
[Names of Underwriters] $
----------------
$
================
$_________ Principal Amount of [Class _____] Asset Backed Certificates, Series ______
Principal Amount
----------------
[Names of Underwriters] $
----------------
$
================
A-3
