EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
AMERICAN EXPRESS ISSUANCE TRUST
$[_______] CLASS A
SERIES 2005-[__] FLOATING RATE ASSET BACKED NOTES
$[_______] CLASS B
SERIES 2005-[__] FLOATING RATE ASSET BACKED NOTES
$[_______] CLASS C
SERIES 2005-[__] FLOATING RATE ASSET BACKED NOTES
[______], 0000
Xxx Xxxx, Xxx Xxxx
[---------],
as the Representative (in such capacity, the "REPRESENTATIVE")
of the several Underwriters named in Schedule A Hereof
----------
[address]
Ladies and Gentlemen:
The undersigned, AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION V LLC (the "TRANSFEROR"), proposes to cause the American Express
Issuance Trust (the "ISSUER" or the "TRUST") to issue $[_______] (stated
principal amount) Class A Series 2005-[__] Floating Rate Asset Backed Notes (the
"SERIES 2005-[__] CLASS A Notes"), $[_______] (stated principal amount) Class B
Series 2005-[__] Floating Rate Asset Backed Notes (the "SERIES 2005-[__] CLASS B
NOTES") and $[______] (stated principal amount) Class C Series 2005-[__]
Floating Rate Asset Backed Notes (the "CLASS C NOTES" and, together with the
Series 2005-[__] Class A Notes and the Series 2005-[__] Class B Notes, the
"NOTES") and to sell the Notes to you and to the underwriters named in Schedule
A hereto (the "UNDERWRITERS"). The Issuer is a Delaware statutory trust created
pursuant to (a) a Trust Agreement, dated as of May 18, 2005 (as amended from
time to time, the "TRUST AGREEMENT"), between the Transferor and Wilmington
Trust Company (the "OWNER TRUSTEE") and (b) the filing of a certificate of trust
with the Secretary of State of the State of Delaware on May 18, 2005. The Notes
will be issued pursuant to an Indenture, dated as of May 19, 2005 (as amended
from time to time, the "MASTER INDENTURE"), as supplemented by the Series
2005-[__] Indenture Supplement thereto, to be dated as of [_____], 2005 (the
"INDENTURE SUPPLEMENT" and, together with the Master Indenture, the
"INDENTURE"), between the Issuer and The Bank of New York, as indenture trustee
(the "INDENTURE TRUSTEE"). The Notes are more fully described in the
Registration Statement (defined below).
(Underwriting Agreement - Series 2005-[__])
The Notes will be sold pursuant to this Underwriting Agreement
(the "AGREEMENT") and each Note will represent an undivided interest in certain
assets of the Trust. The property of the Trust will include, among other things,
receivables (the "RECEIVABLES") generated from time to time in a portfolio of
designated consumer and small business (and, in the future, commercial) charge
accounts (the "ACCOUNTS") owned by American Express Travel Related Services
Company, Inc. ("TRS"), American Express Centurion Bank ("CENTURION BANK"),
American Express Bank, FSB ("FSB" and, together with Centurion Bank, the
"BANKS") or any other Account Owner (as defined in the Transfer and Servicing
Agreement) (collectively, the "ACCOUNT OWNERS"). The Receivables have been, and
will from time to time be, conveyed to TRS pursuant to (i) a Sale Agreement,
dated May 19, 2005, and subsequent sale agreements entered into from time to
time, between American Express Credit Corporation and TRS, (ii) a Receivables
Purchase Agreement, dated as of May 19, 2005 (as amended from time to time, the
"CENTURION RECEIVABLES PURCHASE AGREEMENT"), between Centurion and TRS, and
(iii) a Receivables Purchase Agreement, dated as of May 19, 2005 (as amended
from time to time, the "FSB RECEIVABLES PURCHASE AGREEMENT"), between FSB and
TRS. The Receivables have been, and will from time to time be, conveyed to the
Transferor pursuant to a Receivables Purchase Agreement, dated as of May 19,
2005 (as amended from time to time, the "RFC V RECEIVABLES PURCHASE AGREEMENT"
and, together with the Centurion Receivables Purchase Agreement and the FSB
Receivables Purchase Agreement, the "RECEIVABLES PURCHASE AGREEMENTS"). The
Receivables have been, and will from time to time be, conveyed by the Transferor
to the Issuer pursuant to a Transfer and Servicing Agreement, dated as of May
19, 2005 (as amended from time to time, the "TRANSFER AND SERVICING AGREEMENT"),
among the Transferor, TRS, as servicer and administrator, the Issuer and the
Indenture Trustee.
The Receivables Purchase Agreements, the Trust Agreement, the
Transfer and Servicing Agreement and the Indenture and this Agreement are each
sometimes referred to herein as a "TRANSACTION DOCUMENT." Each capitalized term
used, but not defined herein, shall have the meaning specified in the Transfer
and Servicing Agreement or the relevant Transaction Document, as applicable.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
TRANSFEROR. The Transferor represents and warrants to, and agrees with, the
Underwriters as follows:
(a) The Transferor has filed with the Securities and Exchange
Commission (the "COMMISSION"), on Form S-3, a registration statement
(Registration No. 333-121895-02) relating to the Notes, including a form of
prospectus supplement pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "ACT"). The Transferor may have filed one or more amendments
thereto, each of which has been furnished to the Representatives. The Transferor
will also file with the Commission a prospectus supplement in accordance with
Rule 424(b) under the Act. As filed, the registration statement, as amended, the
form of prospectus supplement, and any prospectuses or prospectus supplements
filed pursuant to Rule 424(b) under the Act ("RULE 424(B)") relating to the
Notes shall, except to the extent that the Representatives shall agree in
writing to a modification, be in all substantive respects in the form furnished
to you prior to the Execution Time (defined below) or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond those contained in the latest preliminary
prospectus supplement which has previously been furnished to the Underwriters)
as the Transferor shall have advised the Underwriters, prior to the Execution
Time, will be included or made therein.
For purposes of this Agreement, "EFFECTIVE TIME" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "EFFECTIVE DATE" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "REGISTRATION STATEMENT," and any prospectus
supplement (the "PROSPECTUS SUPPLEMENT") relating to the Notes, as filed with
the Commission pursuant to and in accordance with Rule 424(b) is, together with
the prospectus filed as part of the Registration Statement (such prospectus, in
the form it appears in the Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424(b) being hereinafter
referred to as the "BASE PROSPECTUS"), hereinafter referred to as the
"PROSPECTUS." "EXECUTION TIME" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
2
(b) (i) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus was
first filed and on the Closing Date, the Prospectus did or will, comply in all
material respects with the applicable requirements of the Act and the rules and
regulations of the Commission promulgated thereunder (the "RULES AND
REGULATIONS");
(ii) on the Effective Date, the Registration Statement did
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
(iii) on the date of any filing with the Commission
pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or 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 the light of the
circumstances under which they were made, not misleading;
provided that the Transferor makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Transferor or any Account Owner by the Underwriters specifically
for use in connection with the preparation of the Registration Statement or the
Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has not been
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
situation or business prospects of the Transferor, and (ii) the Transferor has
not entered into any transaction or agreement (whether or not in the ordinary
course of business) that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Notes, otherwise
than as set forth or contemplated in the Prospectus.
(d) The Transferor (i) is duly organized, validly existing and
in good standing under the laws of the jurisdiction in which it is organized,
(ii) is qualified to transact business in, and is in good standing under, the
laws of each jurisdiction in which its activities require such qualification,
and (iii) has full power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
each Transaction Document to which it is a party.
(e) Each Transaction Document to which the Transferor is a
party has been duly and validly authorized, executed and delivered by the
Transferor.
(f) Each Transaction Document to which the Transferor is a
party has been duly authorized, executed and delivered by the Transferor, and
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a valid and binding obligation of the Transferor
enforceable against the Transferor in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law). As of the Closing Date, the Transaction
Documents will conform in all material respects to the description thereof
contained in the Prospectus.
3
(g) The Receivables transferred to the Issuer by the
Transferor pursuant to the Transfer and Servicing Agreement will conform in all
material respects with the description thereof contained in the Prospectus.
(h) Neither the transfer of the Receivables to the Issuer by
the Transferor, nor the execution or delivery of any Transaction Document by the
Transferor, nor the consummation of any of the transactions herein or therein
contemplated, nor the fulfillment of the terms of any Transaction Document, will
result in the breach of any term or provision of the charter or by-laws of the
Transferor or conflict with, result in a material breach, violation or
acceleration of, or constitute a default under, the terms of any material
indenture or other agreement or instrument to which the Transferor is a party or
by which it or its properties is bound or may be affected or any material
statute, order or regulation applicable to the Transferor of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over the Transferor or will result in the creation of any Lien upon
any property or assets of the Transferor (other than as contemplated in any
Transaction Document). The Transferor is not a party to, bound by, or in breach
or violation of, any indenture or other agreement or instrument, or subject to,
or in violation of, any statute, order or regulation of any court, regulatory
body, administrative agency, governmental body or arbitrator having jurisdiction
over it, that materially and adversely affects the ability of it to perform its
obligations under any Transaction Document to which it is a party.
(i) There are no charges, investigations, actions, suits,
claims or proceedings affecting the Transferor before or by any court,
regulatory body, administrative agency, governmental body or arbitrator now
pending or, to the best knowledge of the Transferor, threatened that, separately
or in the aggregate, (i) would reasonably be likely to have a material adverse
effect on (x) the general affairs, business, management, financial condition,
stockholders' equity, results of operations, regulatory status or business
prospects of the Transferor or (y) the ability of the Transferor to perform its
obligations under any Transaction Document to which it is a party, (ii) assert
the invalidity of any Transaction Document, (iii) seek to prevent the issuance,
sale or delivery of the Notes or any of the transactions contemplated by any
Transaction Document or (iv) seek to affect adversely the federal income tax or
ERISA attributes of the Notes described in the Prospectus.
(j) No federal, state or local tax, including intangibles tax
or documentary stamp tax, the non-payment of which would result in the
imposition of a Lien on the Receivables, is imposed with respect to the
conveyance of the Receivables by the Transferor pursuant to any Transaction
Document, or in connection with the issuance of the Notes by the Trust, or the
holding of such Receivables by the Trust, or in connection with any of the other
transactions contemplated by any Transaction Document. Any such taxes, fees and
other governmental charges in connection with the execution, delivery and
issuance of the Notes or the execution and delivery of this Agreement or any
Transaction Document have been or will have been paid by the Transferor at or
prior to the Closing Date.
(k) As of the Closing Date, the representations and warranties
of the Transferor in each Transaction Document to which it is a party will be
true and correct in all material respects.
(l) Except as required under the Securities Act, the Exchange
Act and other applicable securities laws, no consent, approval, authorization,
order, registration or qualification of or with any court or governmental agency
or body is required for the execution, delivery and performance by the
Transferor of, or the compliance by the Transferor with, each Transaction
Document to which it is a party or the consummation of the transactions
contemplated hereby or thereby other than (i) those that have been obtained or
made and remain in full force and effect and (ii) without limitation, the filing
of Uniform Commercial Code financing statements with respect to the Receivables.
4
(m) PricewaterhouseCoopers LLP, who have audited certain
financial statements of the Transferor, are independent public accountants as
required by the Act and the Rules and Regulations.
(n) At the Closing Date, the Transferor will have good and
marketable title to the Receivables being transferred by it to the Issuer or
otherwise pursuant to the Transfer and Servicing Agreement, free and clear of
any Liens (other than as contemplated in the Transfer and Servicing Agreement)
and will not have assigned to any Person any of its right, title or interest in
such Receivables or the Transaction Documents (other than as contemplated in the
Transfer and Servicing Agreement or the Indenture) or the Notes being issued
pursuant to the Indenture; and the Transferor will have the power and authority
to so transfer such Receivables, and, upon the execution and delivery by the
Owner Trustee, on behalf of the Trust, and the Indenture Trustee of the
Indenture Supplement, delivery to the Underwriters of the Notes and payment by
the Underwriters of the purchase price therefor, the Owner Trustee, on behalf of
the Trust, and the Indenture Trustee will have good and marketable title to, or
a first-priority, perfected security interest in, such Receivables, and the
Underwriters will have good and marketable title to the Notes, in each case free
and clear of any Liens (other than as contemplated in the Transaction
Documents).
(o) The Trust is not, and will not be as a result of the
issuance and sale of the Notes, an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "1940 ACT").
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF TRS. TRS
represents and warrants to, and agrees with, the Underwriters as follows:
(a) It (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized, (ii) is
qualified to transact business in, and is in good standing under, the laws of
each jurisdiction in which its activities require such qualification, and (iii)
has full power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, to service the Receivables, to administer the Trust and to execute,
deliver and perform its obligations under this Agreement and each Receivables
Purchase Agreement to which it shall be a party.
(b) Each Transaction Document to which TRS is a party has been
duly authorized, executed and delivered by TRS, and assuming the due
authorization, execution and delivery thereof by the other parties thereto, each
such Transaction Document constitutes valid and binding obligations of TRS,
enforceable against TRS in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is pursuant to a proceeding in equity
or at law). As of the Closing Date, each Transaction Document to which TRS is a
party will conform in all material respects to the description thereof contained
in the Prospectus.
(c) There are no charges, investigations, actions, suits,
claims or proceedings affecting TRS before or by any court, regulatory body,
administrative agency, governmental body or arbitrator now pending or, to the
best knowledge of TRS, threatened that, separately or in the aggregate, would
(i) reasonably be likely to have a material adverse effect on (x) the general
affairs, business, management, financial condition, stockholders' equity,
results of operations, regulatory status or business prospects of TRS or (y) the
ability of TRS to perform its obligations under any Transaction Document to
which it is a party or (ii) assert the invalidity of any Transaction Document to
which it is a party.
5
(d) As of the Closing Date, the representation and warranties
of TRS in each Transaction Document to which it is a party will be true and
correct in all material respects.
(e) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by TRS of, or the compliance by TRS
with, any Transaction Document to which it is a party or the consummation of the
transactions contemplated hereby or thereby other than (i) those that have been
obtained or made and remain in full force and effect and (ii) without
limitation, the filing of Uniform Commercial Code financing statements with
respect to the Receivables.
(f) TRS agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Receivables,
except as provided in the applicable Receivables Purchase Agreement, and agrees
to take all action required by such Receivables Purchase Agreement in order to
effect the sale of the related Receivables made pursuant to such Receivables
Purchase Agreement.
3. PURCHASE, SALE, PAYMENT AND DELIVERY OF NOTES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Transferor agrees to sell to
the Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Transferor, on [_____], 2005, or on such other date as shall
be mutually agreed upon by the Transferor and the Underwriters (the "CLOSING
DATE"), the number and type of Notes set forth in Schedule A opposite the name
of such Underwriter. The Series 2005-[__] Class A Notes being purchased by the
Underwriters hereunder are to be purchased at a purchase price equal to [___]%
of the principal amount thereof; the Series 2005-[__] Class B Notes being
purchased by the Underwriters hereunder are to be purchased at a purchase price
equal to [___]% of the principal amount thereof; and the Series 2005-[__] Class
C Notes being purchased by the Underwriters hereunder are to be purchased at a
purchase price equal to [___]% of the principal amount thereof.
The closing of the sale of the Notes (the "CLOSING") shall be
held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M. (E.S.T.) on the Closing Date.
Payment of the purchase price for the Notes being sold and purchased hereunder
shall be made on the Closing Date by wire transfer of federal or other
immediately available funds to the accounts to be designated one Business Day
prior to the Closing Date by the Transferor, against delivery of the Notes at
the Closing on the Closing Date. Each of the Notes to be so delivered shall be
represented by one or more definitive notes registered in the name of Cede & Co.
as nominee for The Depository Trust Company.
4. OFFERING BY UNDERWRITERS. It is understood that, after the
Effective Date, the Underwriters propose to offer the Notes for sale to the
public as set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE TRANSFEROR. The Transferor
covenants and agrees with the several Underwriters as follows:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount of
Notes covered thereby and the terms thereof not otherwise specified in the Base
Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances, and such other information as the Transferor shall deem to be
appropriate. The Transferor will transmit the Prospectus, including such
Prospectus Supplement, to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in a filing that complies with all applicable
provisions of Rule 424(b). The Transferor will advise the Underwriters promptly
of any such filing pursuant to Rule 424(b).
6
(b) The Transferor will advise the Underwriters promptly of
(i) any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplement without the consent
of the Underwriters, which consent will not be withheld unreasonably, (ii) any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) any
amendment or supplement to the Registration Statement or the Prospectus and (iv)
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 (it being agreed that the Transferor will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any such stop order issued by the Commission).
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the 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, the Transferor promptly will advise the
Underwriters thereof and will prepare and file, or cause to be prepared and
filed, with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect such
compliance. Any such filing shall not operate as a waiver or limitation on any
right of the Underwriters hereunder.
(d) As soon as practicable, but not later than sixteen months
after the original effective date of the Registration Statement, the Transferor
will cause the Trust to make generally available to Noteholders an earnings
statement of the Trust covering a period of at least twelve months beginning
after the effective date of the Registration Statement that will satisfy the
provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(e) The Transferor will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus or prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Underwriters request.
(f) The Transferor will promptly and from time to time take
such action as any Underwriter may reasonably request to qualify the Notes for
offering and sale under the securities laws of such jurisdictions as such
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Notes; provided that in
connection therewith the Transferor shall not be required to qualify as a
foreign corporation or dealer in securities or to file a general consent to
service of process in any particular jurisdiction.
(g) For a period from the date of this Agreement until the
retirement of the Notes, the Transferor will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Transferor, the Owner Trustee and the
Indenture Trustee pursuant to the Transfer and Servicing Agreement, as soon as
such statements and reports are furnished to the Transferor, the Owner Trustee
and the Indenture Trustee.
(h) So long as any Note is outstanding, the Transferor will
furnish to the Underwriters (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or filed
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), or any order of the Commission thereunder and (ii) from
time to time, any other information concerning the Transferor or the Trust filed
with any government or regulatory authority that is otherwise publicly
available.
7
(i) To the extent, if any, that the rating provided with
respect to the Notes by any Rating Agency is conditional upon the furnishing of
documents or the taking of any other actions by the Transferor, the Transferor
shall use its best efforts to furnish such documents and take any such other
actions unless (a) the furnishing of such documents or the taking of any such
action is first required by such Rating Agency after the Execution Time and (b)
doing so would have a material adverse effect upon the Transferor.
(j) Between the date of this Agreement and the Closing Date,
the Transferor will not, without the prior written consent of the
Representatives, directly or indirectly, issue, sell or offer to sell securities
similar to the Notes.
6. CERTAIN AGREEMENTS OF TRS. TRS agrees with the Underwriters
that to the extent, if any, that the rating provided with respect to the Notes
by any Rating Agency is conditional upon the furnishing of documents or the
taking of any other actions by TRS, TRS shall use its best efforts to furnish
such documents and take any such other actions unless (a) the furnishing of such
documents or the taking of any such action is first required by such Rating
Agency after the Execution Time and (b) doing so would have a material adverse
effect upon TRS.
7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated, the Transferor will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing of the Prospectus and of each amendment or supplement thereto,
(ii) the preparation of this Agreement and each Transaction Document, (iii) the
preparation, issuance and delivery of the Notes to the Underwriters, (iv) the
fees and disbursements of the counsel to the Transferor and the fees and
disbursements of the Transferor's accountants, (v) the qualification of the
Notes under securities laws in accordance with the provisions of Section 5(f),
including filing fees in connection with the preparation of any blue sky and
legal investment survey, (vi) the printing and delivery to the Underwriters of
copies of the Prospectus and of each amendment or supplement thereto, (vii) the
preparation and filing of the Registration Statement and all amendments thereto,
(viii) the printing and delivery to the Underwriters of copies of any blue sky
or legal investment survey prepared in connection with the Notes and any
supplements thereto, (ix) any fees charged by each Rating Agency for the rating
of the Notes, (x) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (xi) the fees
and expenses of the Owner Trustee and its counsel, (xii) the fees and expenses
of the Indenture Trustee and its counsel, and (xiii) one-half of the fees and
disbursements of counsel to the Underwriters (the other half of such fees and
disbursements to be paid for by the Underwriters).
8. CONDITIONS OF THE OBLIGATIONS OF EACH UNDERWRITER. The
obligations of each Underwriter to purchase, and to pay for, the Notes will be
subject to the accuracy of the representations and warranties of the Transferor
and TRS set forth herein, to the accuracy of the statements of officers of the
Transferor and TRS made pursuant hereto or in connection herewith, to the
performance by the Transferor and TRS of its obligations hereunder, and to the
following additional conditions precedent:
(a) The Prospectus and each supplement thereto shall have been
filed (if required) with the Commission in accordance with the Act and the Rules
and Regulations and Section 1 hereof, and, as of the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Underwriters, shall be contemplated by the Commission or by any
authority administering any state securities or "blue sky" laws.
8
(b) On or prior to the date of the final Prospectus, the
Underwriters shall have received a letter, dated as of the date of the final
Prospectus, of PricewaterhouseCoopers LLP, certified public accountants,
substantially in the form of the draft to which the Underwriters have previously
agreed and otherwise in form and substance satisfactory to the Underwriters.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, the Transferor or TRS that, in the judgment of the
Underwriters, materially impairs the market for or investment quality of the
Notes or makes it impractical or inadvisable to market the Notes; (ii) any
suspension or limitation on trading in securities generally on the New York
Stock Exchange or the National Association of Securities Dealers National Market
System, or any setting of minimum prices for trading on such exchange or market
system; (iii) any suspension or limitation of trading of any securities of TRS,
the Transferor or any Affiliate of TRS or the Transferor on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared by Federal or
State of New York or other applicable state authorities; or (v) any material
adverse change in the financial markets of the United States, any outbreak or
escalation of hostilities or armed conflict, any declaration of war by Congress,
or any other substantial national or international calamity or emergency if, in
the judgment of the Underwriters, the effect of any such material adverse
change, outbreak, escalation, declaration, calamity, or emergency would make it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Notes.
(d) At the Closing Date, the Transferor and TRS shall have
furnished to the Representatives certificates of an executive officer of the
Transferor or TRS, as applicable, as to the accuracy of the representations and
warranties of the Transferor or TRS, as applicable, herein at and as of the
Closing Date, as to the performance by the Transferor or TRS, as applicable, of
all of its obligations hereunder to be performed at or prior to the Closing
Date, and as to such other matters as the Representatives may reasonably
request.
(e) General Counsel for each of TRS and the Transferor shall
have furnished to the Underwriters one or more written opinions, addressed to
the Underwriters and dated the Closing Date, in form and substance satisfactory
to the Underwriters, substantially to the effect that:
(i) TRS has been duly incorporated and is validly existing
and in good standing under the laws of the jurisdiction in which it is
organized, with full power and authority (corporate and other) to own its
properties and conduct its business, as presently owned and conducted by it, and
to enter into and perform its obligations under any Transaction Document to
which it is a party, and has had at all times the power, authority and legal
right to acquire, own and transfer the Receivables as contemplated by the
Receivables Purchase Agreements;
(ii) TRS (a) is duly qualified to do business and is in
good standing in the jurisdiction in which it is organized, and under applicable
laws, as they are currently interpreted and enforced, has obtained all necessary
licenses and approvals in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would materially and adversely affect the
enforceability of any Receivable or would adversely affect the ability of TRS to
perform its obligations under any Transaction Document to which it is a party
and (b) without limiting the foregoing, has the corporate power and authority to
carry on its business as described in the Prospectus and own and operate its
property in connection therewith;
(iii) Each Bank has been duly incorporated or formed and
is validly existing and in good standing under the laws of the jurisdiction in
which it is organized, with full power and authority (corporate and other) to
own its properties and conduct its business, as presently owned and conducted by
it, and to enter into and perform its obligations under each Receivables
Purchase Agreement to which it is a party, and has had at all times the power,
authority and legal right to acquire, own and transfer the Receivables as
contemplated by such Receivables Purchase Agreement, to service the Receivables
and to administer the Trust;
9
(iv) Each Bank (a) is duly qualified to do business and is
in good standing in the jurisdiction in which it is organized, and under
applicable laws, as they are currently interpreted and enforced, has obtained
all necessary licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such licenses or approvals would materially and adversely
affect the enforceability of any Receivable or would adversely affect the
ability of such Bank to perform its obligations under each Receivables Purchase
Agreement to which it is a party and (b) without limiting the foregoing, has the
corporate power and authority to carry on its business as described in the
Prospectus and own and operate its property in connection therewith;
(v) The Transferor has been duly formed and is validly
existing and in good standing under the laws of the jurisdiction in which it is
organized, with full power and authority (limited liability company and other)
to own its properties and conduct its business, as presently owned and conducted
by it, and to enter into and perform its obligations under any Transaction
Document to which it is a party, and has had at all times the power, authority
and legal right to acquire, own and transfer the Receivables as contemplated by
the Transaction Documents;
(vi) The Transferor (a) is duly qualified to do business
and is in good standing in the jurisdiction in which it is organized, and under
applicable laws, as they are currently interpreted and enforced, has obtained
all necessary licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such licenses or approvals would materially and adversely
affect the enforceability of any Receivable or would adversely affect the
ability of the Transferor to perform its obligations under any Transaction
Document to which it is a party and (b) without limiting the foregoing, has the
corporate power and authority to carry on its business as described in the
Prospectus and own and operate its property in connection therewith;
(vii) Each of this Agreement and each Receivables Purchase
Agreement to which the Transferor is a party has been duly authorized, executed
and delivered by the Transferor and constitutes the legal, valid and binding
agreement of the Transferor, enforceable against it in accordance with its
terms, subject, as to enforceability, to (1) limitations imposed by bankruptcy,
insolvency, reorganization, liquidation, arrangement, fraudulent conveyance,
moratorium, receivership, conservatorship, readjustment of debts, creditors'
rights or other laws relating to or affecting the rights of creditors generally;
(2) rights to indemnification and contribution which may be limited by
applicable law and equitable principles or otherwise unenforceable as against
public policy; (3) the unenforceability under certain circumstances of
provisions imposing penalties, forfeiture, late payment charges, or an increase
in interest rate upon delinquency in payment or the occurrence of any event of
default; and (4) general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether such enforceability is considered in a proceeding in equity or at
law;
(viii) Each of this Agreement and each Receivables
Purchase Agreement to which TRS is a party has been duly authorized, executed
and delivered by TRS and constitutes the legal, valid and binding agreement of
TRS, enforceable against it in accordance with its terms, subject, as to
enforceability, to (1) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent conveyance, moratorium,
receivership, conservatorship, readjustment of debts, creditors' rights or other
laws relating to or affecting the rights of creditors generally; (2) rights to
indemnification and contribution which may be limited by applicable law and
equitable principles or otherwise unenforceable as against public policy; (3)
the unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in interest rate
upon delinquency in payment or the occurrence of any event of default; and (4)
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
(ix) Each Receivables Purchase Agreement to which a Bank
is a party has been duly authorized, executed and delivered by such Bank and
constitutes the legal, valid and binding agreement of such Bank, enforceable
against it in accordance with its terms, subject, as to enforceability, to (1)
limitations imposed by bankruptcy, insolvency, reorganization, liquidation,
arrangement, fraudulent conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws relating to or affecting
the rights of creditors generally; (2) rights to indemnification and
contribution which may be limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (3) the unenforceability under
certain circumstances of provisions imposing penalties, forfeiture, late payment
charges, or an increase in interest rate upon delinquency in payment or the
occurrence of any event of default; and (4) general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific performance
or injunctive relief, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
10
(x) The Trust is not now, and immediately following the
sale of the Notes pursuant to this Agreement will not be, required to register
under the 1940 Act;
(xi) No consent, approval, authorization or order of any
governmental agency or body is required for the execution, delivery and
performance by the Transferor of its obligations under any Transaction Document
to which it is a party, except such as have been obtained under the Act and as
may be required under state securities or "blue sky" laws in connection with the
purchase and distribution of the Notes by the Underwriters and the filing of
Uniform Commercial Code financing statements with respect to the Receivables;
(xii) Neither the execution and delivery by the Transferor
of the Transaction Documents to which the Transferor is a party nor the
performance by the Transferor of the transactions therein contemplated nor the
fulfillment of the terms thereof does or will result in any material violation
of any statute or regulation, or, to the best knowledge of such counsel, any
order or decree of any court or governmental authority binding upon the
Transferor or its property, or conflict with, or result in a material breach or
violation of any term or provision of, or result in a material default under any
of the terms and provisions, of its charter or by-laws or any indenture, loan
agreement or other material agreement known to such counsel to which the
Transferor is a party or by which the Transferor is bound;
(xiii) Neither the execution and delivery by TRS of the
Transaction Documents to which TRS is a party nor the performance by TRS of the
transactions therein contemplated nor the fulfillment of the terms thereof does
or will result in any material violation of any statute or regulation, or, to
the best knowledge of such counsel, any order or decree of any court or
governmental authority binding upon TRS or its property, or conflict with, or
result in a material breach or violation of any term or provision of, or result
in a material default under any of the terms and provisions, of its charter or
by-laws or any indenture, loan agreement or other material agreement known to
such counsel to which TRS is a party or by which TRS is bound;
(xiv) Neither the execution and delivery by each Bank of
the Receivables Purchase Agreements to which such Bank is a party nor the
performance by such Bank of the transactions therein contemplated nor the
fulfillment of the terms thereof does or will result in any material violation
of any statute or regulation, or, to the best knowledge of such counsel, any
order or decree of any court or governmental authority binding upon such Bank or
its property, or conflict with, or result in a material breach or violation of
any term or provision of, or result in a material default under any of the terms
and provisions, of its charter or by-laws or any indenture, loan agreement or
other material agreement known to such counsel to which such Bank is a party or
by which such Bank is bound;
(xv) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending to which
the Transferor is a party or to which any property of the Transferor is subject
that, individually or in the aggregate, (i) would have a material adverse effect
on the ability of the Transferor to perform its obligations under any
Transaction Document to which the Transferor is a party, (ii) assert the
invalidity of any Transaction Document or the Notes, (iii) seek to prevent the
issuance, sale or delivery of the Notes or the transactions contemplated by any
Transaction Document or (iv) seek to affect adversely the federal income tax or
ERISA attributes of the Notes described in the Prospectus;
(xvi) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending to which
TRS is a party or to which any property of TRS is subject that, individually or
in the aggregate, (i) would have a material adverse effect on the ability of TRS
to perform its obligations under any Transaction Document to which TRS is a
party, (ii) assert the invalidity of any Transaction Document or the Notes,
(iii) seek to prevent the issuance, sale or delivery of the Notes or the
transactions contemplated by any Transaction Document or (iv) seek to affect
adversely the federal income tax or ERISA attributes of the Notes described in
the Prospectus;
11
(xvii) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending to which
either Bank is a party or to which any property of either Bank is subject that,
individually or in the aggregate, (i) would have a material adverse effect on
the ability of either Bank to perform its obligations under any Receivables
Purchase Agreement to which such Bank is a party or (ii) assert the invalidity
of any Receivables Purchase Agreement to which such Bank is a party;
(xviii) The Registration Statement and the Prospectus
(except for the financial statements, financial schedules and other financial
and operating data including therein, as to which such counsel expresses no
view) comply as to form with the Act and the Rules and Regulations;
(xix) The Registration Statement is effective under the
Act, and the Prospectus Supplement has been filed with the Commission pursuant
to Rule 424(b) thereunder;
(xx) Such counsel has not independently verified the
accuracy, completeness or fairness of the information contained in the
Registration Statement and Prospectus. However, based upon discussion with the
Transferor, TRS [and the Banks], their accountants and others, no facts have
come to the attention of such counsel that cause it to believe that the
Registration Statement, as of the Effective Date (except for the financial
statements, financial schedules and other financial and statistical data
included therein as to which such counsel expresses no view), contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (as amended on or prior to the Closing Date)
as of its date and at the Closing Date (except for the financial statements,
financial schedules, and other financial and statistical data included therein
as to which such counsel expresses no view) contained or contains any untrue
statement of a material fact or omitted 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.
(f) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx XXX, Xxx Xxxx, Xxxxxx,
Xxxxxxxx & XxXxxxxx, and Xxxxxxxx, Xxxxxx & Finger, P.A., special UCC counsel
for the Transferor and the Account Owners, shall have furnished to the
Underwriters written opinions, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Underwriters, with
respect to certain matters relating to the (i) transfer of the Receivables to
TRS, with respect to the perfection of TRS's interest in the Receivables and
with respect to other related matters, (ii) the transfer of the Receivables to
RFC V, with respect to the perfection of RFC V's interest in the Receivables and
with respect to other related matters and (iii) the transfer of the Receivables
to the Trust, with respect to the perfection of the interest of the Trust and
the Indenture Trustee in the Receivables and with respect to other related
matters.
(g) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for
the Underwriters, shall have furnished to the Underwriters a written opinion,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, substantially to the effect that:
(i) Neither the Trust Agreement nor the Indenture is
required to be qualified under the Trust Indenture Act of 1939, as amended, and
the Trust is not now, and immediately following the issuance of the Notes
pursuant to the Indenture will not be, required to be registered under the
Investment Company Act of 1940, as amended.
12
(ii) The Transaction Documents and the Notes conform in
all material respects to the descriptions thereof contained in the Prospectus.
(iii) The statements in the Prospectus under the headings
"Summary of Terms--ERISA Considerations" and "ERISA Considerations," to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been reviewed by such counsel and are correct in all
material respects.
(iv) Subject to the discussion in the Prospectus under the
heading "Federal Income Tax Consequences," for federal income tax purposes, the
Notes will properly be characterized as indebtedness and the Trust will not be
classified as an association (or publicly traded partnership) taxable as a
corporation. Statements in the Prospectus under the headings "Summary of
Terms--Tax Status" (to the extent relating to federal income tax consequences)
and "Federal Income Tax Consequences," to the extent they constitute statements
of matters of law or legal conclusions with respect thereto, accurately describe
the material federal income tax consequences to holders of the Notes.
(v) When the Notes have been duly executed and delivered
by the Issuer, authenticated by the Indenture Trustee in accordance with the
Indenture and delivered and paid for by the Underwriters pursuant to this
Agreement, the holder of record of any Note will be entitled to the benefits
afforded by the Indenture, and the Notes will constitute the legal, valid and
binding obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, subject to (1) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent conveyance, moratorium,
receivership, conservatorship, readjustment of debts, creditors' rights or other
laws relating to or affecting the rights of creditors generally; (2) rights to
indemnification and contribution which may be limited by applicable law and
equitable principles or otherwise unenforceable as against public policy; (3)
the unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in interest rate
upon delinquency in payment or the occurrence of any event of default; and (4)
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
(vi) The Indenture constitutes the legal, valid and
binding agreement of the Issuer, enforceable against the Issuer in accordance
with its terms, subject to (1) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent conveyance, moratorium,
receivership, conservatorship, readjustment of debts, creditors' rights or other
laws relating to or affecting the rights of creditors generally; (2) rights to
indemnification and contribution which may be limited by applicable law and
equitable principles or otherwise unenforceable as against public policy; (3)
the unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in interest rate
upon delinquency in payment or the occurrence of any event of default; and (4)
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
(vii) Each Receivables Purchase Agreement to which a Bank,
TRS or the Transferor is a party constitutes the legal, valid and binding
agreement of each such party, enforceable against each such party in accordance
with its terms, subject to (1) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent conveyance, moratorium,
receivership, conservatorship, readjustment of debts, creditors' rights or other
laws relating to or affecting the rights of creditors generally; (2) rights to
indemnification and contribution which may be limited by applicable law and
equitable principles or otherwise unenforceable as against public policy; (3)
the unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in interest rate
upon delinquency in payment or the occurrence of any event of default; and (4)
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
13
(viii) This Agreement constitutes the legal, valid and
binding agreement of the Transferor and TRS, enforceable against each of them in
accordance with its terms, subject to (1) limitations imposed by bankruptcy,
insolvency, reorganization, liquidation, arrangement, fraudulent conveyance,
moratorium, receivership, conservatorship, readjustment of debts, creditors'
rights or other laws relating to or affecting the rights of creditors generally;
(2) rights to indemnification and contribution which may be limited by
applicable law and equitable principles or otherwise unenforceable as against
public policy; (3) the unenforceability under certain circumstances of
provisions imposing penalties, forfeiture, late payment charges, or an increase
in interest rate upon delinquency in payment or the occurrence of any event of
default; and (4) general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether such enforceability is considered in a proceeding in equity or at
law;
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor, TRS, the Banks, their
counsel, their accountants and you concerning the Registration Statement and the
Prospectus and have considered the matters required to be stated therein and the
statements contained therein, although we have not independently verified the
accuracy, completeness or fairness of such statements (except as described in
paragraph 3 above). Based upon and subject to the foregoing, nothing has come to
our attention to cause us to believe that the Registration Statement, on its
effective date, or the Prospectus as of its issue date or on the date hereof
(except for the exhibits thereto, the financial statements, the financial
schedules and other financial, accounting and statistical data included therein
or omitted therefrom, as to which we express no belief) contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(h) The Underwriters shall have received from Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, a written opinion,
dated the Closing Date, with respect to such matters as the Representatives may
require (and the Transferor and TRS shall furnish to such counsel all documents
requested for the purpose of enabling it to pass upon such matters).
(i) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Indenture
Trustee, shall have furnished to the Underwriters a written opinion, addressed
to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, substantially to the effect that:
(i) The Indenture Trustee is a banking corporation
organized and validly existing and in good standing under the laws of the State
of New York and is authorized and qualified to execute and deliver, and accept
the trusts imposed by, the Indenture and to perform all of the obligations of
the Indenture Trustee under the Indenture and the Transfer and Servicing
Agreement.
(ii) Each Transaction Document to which the Indenture
Trustee is a party has been duly authorized, executed and delivered by the
Indenture Trustee, enforceable against the Indenture Trustee in accordance with
its terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
the enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
14
(iii) The Indenture Trustee has duly authenticated and
delivered the Notes on the Closing Date.
(iv) The execution and delivery by the Indenture Trustee
of each Transaction Document to which the Indenture Trustee is a party and the
performance by the Indenture Trustee of its obligations thereunder do not
conflict with or result in a violation of (x) any law or regulation of the
United States of America or the State of New York governing the banking or trust
powers of the Indenture Trustee, or (y) the organization certificate or by-laws
of the Indenture Trustee.
(v) No approval, authorization or other action by, or
filing with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers of the
Indenture Trustee is required in connection with the execution and delivery by
the Indenture Trustee of any Transaction Document to which the Indenture Trustee
is a party or the performance by the Indenture Trustee thereunder.
(vi) To the best knowledge of such counsel, there is no
action, suit or proceeding pending or threatened against the Indenture Trustee
(as Indenture Trustee under the Indenture) before or by any governmental
authority that if adversely decided, would materially adversely affect the
ability of the Indenture Trustee to perform its obligations under any
Transaction Document to which the Indenture Trustee is a party.
(vii) The execution, delivery and performance by the
Indenture Trustee of each Transaction Document to which the Indenture Trustee is
a party will not subject any of the property or assets of the Issuer or any
portion thereof, to the imposition of any lien which may be asserted against the
Issuer by the Indenture Trustee in its capacity as Indenture Trustee.
(j) Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner
Trustee, shall have furnished to the Underwriters a written opinion, addressed
to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, substantially to the effect that:
(i) Wilmington Trust Company is duly incorporated and
validly existing as a banking corporation under the laws of the State of
Delaware and has the power and authority to execute, deliver and perform the
Trust Agreement.
(ii) The Trust Agreement has been duly authorized,
executed and delivered by Wilmington Trust Company and constitutes a legal,
valid and binding agreement of Wilmington Trust Company, enforceable against
Wilmington Trust Company, in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership, fraudulent transfer and similar laws
relating to or affecting the rights and remedies of creditors generally, (b)
principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (c) applicable public policy with respect to rights of indemnification
or contribution.
(iii) Neither the execution, delivery and performance by
Wilmington Trust Company of the Trust Agreement, nor the consummation of any of
the transactions by Wilmington Trust Company contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of, the giving
of notice to, the filing, registration or qualification with, or the taking of
any other action in respect of, any governmental authority or agency of the
State of Delaware or the United States of America governing the trust powers of
Wilmington Trust Company, other than the filing of the certificate of trust with
the Secretary of State of the State of Delaware.
15
(iv) Neither the execution, delivery and performance by
Wilmington Trust Company of the Trust Agreement, nor the consummation of any of
the transactions by Wilmington Trust Company contemplated thereby, is in
violation of the provisions of the certificate of incorporation or by-laws of
Wilmington Trust Company or of any law, rule or regulation of the State of
Delaware or of the United States of America governing the trust powers of
Wilmington Trust Company or, to such counsel's knowledge, without independent
investigation, of any indenture, mortgage, bank credit agreement, long-term
lease, license or other agreement or instrument to which Wilmington Trust
Company is a party or by which it is bound or to our knowledge, without
independent investigation, of any order or judgment applicable to Wilmington
Trust Company.
(v) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or proceedings
affecting Wilmington Trust Company before any court or other government
authority which, if adversely determined, would materially and adversely affect
the ability of Wilmington Trust Company to carry out the transactions
contemplated by the Trust Agreement.
(k) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
to the Issuer, shall have furnished to the Underwriters a written opinion,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, substantially to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a statutory trust under the Delaware Statutory
Trust Act, 12 Del. C. ss. 3801, et seq. (referred to in this subsection (k) as
the "STATUTORY TRUST ACT").
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Transferor and the Owner Trustee, enforceable against the
Transferor and the Owner Trustee in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
moratorium, reorganization, receivership, fraudulent transfer and similar laws
relating to or affecting the rights and remedies of creditors generally, (b)
principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (c) applicable public policy with respect to rights of indemnification
or contribution.
(iii) The Transfer and Servicing Agreement is a legal,
valid and binding obligation of the Trust, the Transferor and TRS, enforceable
against the Trust, the Transferor and TRS, in accordance with its terms.
(iv) The Trust Agreement and the Statutory Trust Act
authorize the Trust to execute and deliver the Transaction Documents to which
the Trust is a party, to issue the Notes and to grant the trust estate to the
Indenture Trustee as security for the Notes.
(v) The Trust has the requisite corporate power and
authority, pursuant to the Trust Agreement and the Statutory Trust Act, to
execute, deliver and perform its obligations under the Transaction Documents to
which the Trust is a party and the Notes.
(vi) Under the Trust Agreement and the Statutory Trust
Act, the execution and delivery by the Trust of the Transaction Documents to
which the Trust is a party and the Notes, and the performance by the Trust of
its obligations thereunder, have been duly authorized by the requisite trust
action on the part of the Trust.
16
(vii) Neither the execution, delivery and performance by
the Trust of the Transaction Documents to which the Trust is a party or the
Notes, nor the consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of, the withholding of objection on
the part of, the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any governmental
authority or agency of the State of Delaware, other than the filing of the
certificate of trust with the Secretary of State of the State of Delaware (which
certificate of trust has been duly filed) and the filing of financing statements
and continuation statements with the Secretary of State of the State of Delaware
in connection with the Transaction Documents.
(viii) Neither the execution, delivery and performance by
the Trust of the Transaction Documents to which the Trust is a party, nor the
consummation by the Trust of the transactions contemplated thereby, is in
violation of the Trust Agreement or of any law, rule or regulation of the State
of Delaware applicable to the Trust.
(ix) Under Section 3805(b) of the Statutory Trust Act, no
creditor of a Beneficiary (as defined in the Trust Agreement) shall have any
right to obtain possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the Trust except in accordance with the terms
of the Trust Agreement.
(x) Under Section 3808(a) and (b) of the Statutory Trust
Act, the Trust may not be terminated or revoked by the Beneficiary, and the
dissolution, termination or bankruptcy of the Beneficiary shall not result in
the termination or dissolution of the Trust, except to the extent otherwise
provided in the Trust Agreement.
(xi) The Owner Trustee is not required to hold legal title
to the trust estate in order for the Trust to qualify as a statutory trust under
the Statutory Trust Act.
(xii) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the perfection of a security interest in
any Receivable and the proceeds (as defined in Section 9-102(a)(64) of the
Delaware UCC) thereof.
(xiii) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the transfer of any Receivable and the
proceeds (as defined in Section 9-102(a)(64) of the Delaware UCC) thereof to or
from the Trust.
(xiv) The corpus of the Trust is not subject to any
personal property or similar ad valorem tax imposed by the State of Delaware.
(xv) The characterization of the Trust for federal income
tax purposes, whether as a trust, partnership or association taxable as a
corporation, is determinative of the character of the Trust for income tax
purposes under the laws of the State of Delaware, and, if the Trust is
characterized as a partnership for income tax purposes under the laws of the
State of Delaware, no income tax is imposed upon the Trust by the State of
Delaware. For income tax purposes under the laws of the State of Delaware,
taxable income would be derived from "federal taxable income," and for the
purpose of ascertaining such taxable income for income tax purposes under the
laws of the State of Delaware, the amount of federal taxable income as
determined for federal income tax purposes will be determinative, whether such
amount of federal taxable income is determined upon a characterization of the
transaction as a sale or as a loan.
(xvi) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the Notes.
17
(xvii) There is no income tax imposed by New Castle
County, Delaware, upon the Trust and New Castle County, Delaware, is prohibited
by the laws of the State of Delaware from imposing a personal property tax upon
or measured by the corpus of the Trust.
(xviii) The Beneficiary is the sole beneficial owner of
the Trust.
(l) 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 appropriate filing offices of the States of New York, Delaware
and Utah and such other jurisdictions as counsel to the Transferor deems
appropriate to reflect the interest of the Trust and the Indenture Trustee in
the Receivables.
(m) On the Closing Date, the Series 2005-[__] Class A Notes
shall have been rated "AAA" by Standard & Poor's Ratings Services, "Aaa" by
Xxxxx'x Investors Service, Inc. and "AAA" by Fitch, Inc.; the Series 2005-[__]
Class B Notes shall have been rated "A" by Standard & Poor's Ratings Services,
"A[2]" by Xxxxx'x Investors Service, Inc. and "A" by Fitch, Inc.; and the Series
2005-[__] Class C Notes shall have been rated "BBB" by Standard & Poor's Ratings
Services, "Baa2" by Xxxxx'x Investors Service, Inc. and "BBB" by Fitch, Inc, and
letters to such effect dated the Closing Date shall have been received from each
Rating Agency.
(n) The Underwriters shall have received all written opinions
required by Standard & Poor's Ratings Services, Xxxxx'x Investors Service, Inc.
and Fitch, Inc., addressed to the Underwriters and dated the Closing Date.
(o) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriters, and the Underwriters
shall have received such information, certificates and documents as any of them
may reasonably request.
9. INDEMNIFICATION. The Transferor and TRS, jointly and
severally, agree to indemnify and hold harmless each Underwriter, each Person,
if any, who controls any Underwriter within the meaning of Section 15 of the
Act, and any director, officer or employee of any Underwriter or any such
Person, as follows:
(a) (i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of (A) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (B) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, unless, in either case, such untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to the
Transferor or TRS by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) (and, in connection therewith, the Transferor and TRS
acknowledge that the information set forth under the heading "Underwriting"
relating to selling concessions and reallowance in the Prospectus constitutes
the only information furnished in writing by the Underwriters or on behalf of
the Underwriters for inclusion in the Registration Statement or the Prospectus);
provided that, as to any preliminary prospectus, this indemnity agreement shall
not inure to the benefit of any Underwriter, any Person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act, or any director,
officer or employee of any Underwriter or any such Person on account of any
loss, liability, claim, damage or expense arising from the sale of any Note to
any Person by such Underwriter if such Underwriter failed to send or give a copy
of the final Prospectus and Prospectus Supplement transmitted to the Commission
pursuant to Section 5(a) of this Agreement to such Person within the time
required by the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
preliminary prospectus was corrected in the final Prospectus unless such failure
resulted from the failure by the Transferor or TRS to comply with Section 5(e)
of this Agreement.
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by any governmental agency, or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission; and
(iii) against any and all expense whatsoever (including,
without limitation, the fees and disbursements of counsel chosen by such
Underwriters or Persons) reasonably incurred in investigating, preparing or
defending against any litigation or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not indemnified by
the Transferor and TRS pursuant to subparagraphs (i) or (ii) above.
The indemnity agreement provided for in this subsection 9(a) will be in addition
to any liability that the Transferor and TRS may otherwise have.
(b) Each Underwriter, severally, agrees to indemnify and hold
harmless the Transferor and TRS, each of their respective directors, each of the
Transferor's officers who signed the Registration Statement, and each Person, if
any, who controls the Transferor or TRS within the meaning of Section 15 of the
Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection 9(a), but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Transferor or TRS by the Underwriters expressly for
use in the Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto). The Transferor and TRS acknowledge
that the information set forth under the heading "Underwriting" relating to
selling concessions and reallowance in the Prospectus constitutes the only
information furnished in writing by the Underwriters or on behalf of the
Underwriters for inclusion in the Registration Statement or the Prospectus. The
indemnity agreement provided for in this subsection 9(b) will be in addition to
any liability which each Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent it has been
materially prejudiced by such failure; and provided that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 9. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party. After notice from an
indemnifying party to such indemnified party of its election to assume the
defense of such claim or action, such indemnifying party shall not be liable to
such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to such indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel, (iii) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iv) such indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to such indemnified party, in which
case, if such indemnified party notifies such indemnifying party in writing that
it elects to employ separate counsel at the expense of such indemnifying party,
such indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party (it being understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all indemnified parties, which
firm shall be designated in writing by the Representatives, if the indemnified
parties under this Section 9 consist of any Underwriter or any of their
respective officers, employees or controlling persons, or by the Transferor or
TRS, if the indemnified parties under this Section 9 consist of the Transferor
or TRS or any of their respective directors, officers, employees or controlling
persons). Each indemnified party shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (a) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suite or proceeding and (b) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of such
indemnified party, or (ii) be liable for any settlement of any claim, action,
suit or proceeding effected without its prior written consent (which consent
shall not be unreasonably withheld).
19
10. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreements provided for in
Section 9 are for any reason held to be unenforceable or insufficient by the
indemnified parties, although applicable in accordance with its terms, the
Transferor and TRS, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreements incurred by the
Transferor, TRS and one or more of the Underwriters in such proportions that the
Underwriters are responsible for that portion represented by the underwriting
compensation earned by them bears to the initial public offering price or prices
and the Transferor and TRS shall be responsible for the balance; provided,
however, that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The Transferor,
TRS and the Underwriters each agree that it would not be just or equitable if
the amount of such contribution were determined by pro rata or per capita
allocation. The Underwriters' obligations in this Section 10 to contribute are
several in proportion to their respective underwriting obligations and not
joint. For purposes of this Section, each Person, if any, who controls the
Underwriters within the meaning of Section 15 of the Act shall have the same
rights to contribution as the Underwriters and each director of the Transferor,
each director of TRS, such officer of the Transferor who signed the Registration
Statement, and each Person, if any, who controls the Transferor or TRS within
the meaning of Section 15 of the Act shall have the same rights to contribution
as the Transferor and TRS.
11. SURVIVAL. Each party hereto agrees that the respective
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon, in the case of the Transferor and TRS, by each Underwriter and, in
the case of each Underwriter, by the Transferor and TRS, notwithstanding any
investigation heretofore or hereafter made by or on behalf of the Transferor,
TRS or the Underwriters, and that the respective representations, warranties and
agreements (including without limitation the indemnity and contribution
agreement) made by each party hereto herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Notes.
20
12. TERMINATION. This Agreement may be terminated in the sole
discretion of the Underwriters by notice to the Transferor given at or prior to
the Closing Date in the event that the Transferor or TRS shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto. Termination
of this Agreement pursuant to this Section 12 shall be without liability of any
party to any other party except (i) as provided in Sections 6, 9 and 10 hereof
and (ii) if this Agreement is terminated by the Representatives in accordance
with any of the provisions of Xxxxxxx 0(x), (x), (x), (x), (x), (x), (x), (x),
(x) or (o), the Transferor will reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
13. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail on the Closing Date to purchase the Notes which
it or they are obligated to purchase under this Agreement (the "DEFAULTED
SECURITIES"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) If the aggregate amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Notes, each of the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) If the aggregate amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Notes, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 13 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Transferor
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
14. NOTICES. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered, sent by overnight courier or mailed by registered mail,
postage prepaid and return receipt requested, or transmitted by telecopier with
transmission confirmed, if to (a) the Underwriters, addressed to [__________],
or to such other address as the Representatives may designate in writing to the
Transferor, (b) TRS, addressed to American Express Travel Related Services
Company, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, Telecopier: (000) 000-0000, or (c) American Express Receivables
Financing Corporation V LLC, 000 Xxxxx Xxxxxx, Xxxx 000X, Xxx Xxxx, Xxx Xxxx
00000 (with a copy to American Express Travel Related Services Company, Inc., as
administrator, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, Telecopier: (000) 000-0000).
21
15. SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns. Nothing expressed herein is intended or shall be construed to give any
Person other than the Persons referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
16. SEVERABILITY OF PROVISIONS. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
18. AMENDMENT. 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.
19. HEADINGS. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
20. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which shall
together constitute one instrument.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
(signature page follows)
22
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By:
---------------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION V LLC
By:
---------------------------------------
Name:
Title:
[Signature page - Underwriting Agreement Series 2005-[__]]
23
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
[-------------------],
for itself and as a representative of the
several Underwriters named in Schedule A hereto
By:
-------------------------------------
Name:
Title:
[-------------------],
for itself and as a representative of the
several Underwriters named in Schedule A hereto
By:
-------------------------------------
Name:
Title:
[Signature page - Underwriting Agreement Series 2005-[__]]
24
SCHEDULE A
Stated Principal Amount of
the Series 2005-[__] Class A
Underwriters of the Series 2005-[__] Class A Notes Notes
-------------------------------------------------- ----------------------------
$
TOTAL $
=
Stated Principal Amount of
the Series 2005-[__] Class B
Underwriters of the Series 2005-[__] Class B Notes Notes
-------------------------------------------------- ----------------------------
$
TOTAL $
=
Stated Principal Amount of
the Series 2005-[__] Class B
Underwriters of the Series 2005-[__] Class C Notes Notes
-------------------------------------------------- ----------------------------
$
TOTAL $
=
S-A-1
(Underwriting Agreement-Series 2005-[__])
