EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
NATIONAL CITY BANK
(Originator, Beneficiary, Seller and Servicer)
$_______ Class A Floating Rate Asset Backed Notes, Series 200[___]-[___]
$_______ Class B Floating Rate Asset Backed Notes, Series 200[___]-[___]
$_______ Class C Floating Rate Asset Backed Notes, Series 200[___]-[___]
UNDERWRITING AGREEMENT
[___][___], 200[___]
[NAME OF UNDERWRITER]
As an Underwriter and as the Representative
of the several Underwriters set forth
on Schedule A hereto (the "Representative")
[ADDRESS]
Ladies and Gentlemen:
National City Credit Card Master Note Trust, a Delaware statutory
trust (the "Issuer"), and National City Bank, a national banking association
(the "Bank"), as originator and as beneficiary of the Issuer, propose to sell
(a) $[___] Class A Floating Rate Asset Backed Notes, Series 200 [___]-[___] (the
"Class A Notes"), (b) $[___] Class B Floating Rate Asset Backed Notes, Series
200 [___]-[___] (the "Class B Notes") and (c) $[___] Class C Floating Rate Asset
Backed Notes, Series 200 [___]-[___] (the "Class C Notes" and, together with the
Class A Notes and the Class B Notes, the "Notes") representing debt obligations
of the Issuer. The Notes will be issued pursuant to the Indenture, dated as of
August 23, 2005, as supplemented by the Series 200[___]-[___] Indenture
Supplement, to be dated as of [___][___], 200[___] (as so supplemented and as
otherwise modified or amended from time to time, the "Indenture"), between the
Issuer and The Bank of New York, as indenture trustee (in such capacity, the
"Indenture Trustee"). The Issuer is operated pursuant to an Amended and Restated
Trust Agreement, dated as of August 23, 2005 (as modified and amended from time
to time, the "Trust Agreement"), between the Bank, as Beneficiary and
Transferor, and Wilmington Trust Company, as owner trustee (the "Owner Trustee")
and the Administration Agreement, dated as of August 23, 2005 between the Bank,
as Administrator and the Issuer. The Notes will be secured by certain assets of
the Issuer, including the Collateral Certificate referred to below
(collectively, the "Collateral").
The Bank has transferred and proposes to continue to transfer
Receivables (as defined below) to the National City Credit Card Master Trust
(the "Master Trust") pursuant to a Pooling and Servicing Agreement, dated as of
June 1, 1995, as amended and restated on July 1, 2000 (as further amended from
time to time, the "Pooling and Servicing Agreement"), as supplemented by the
Series 2005-CC Supplement, dated as of August 23, 2005 (the "Series
Supplement"); references herein to the Pooling and Servicing Agreement shall
mean, unless otherwise specified, the Pooling and Servicing Agreement as
supplemented by the Series Supplement, each between the Bank, as seller (in such
capacity, the "Seller") and as servicer (in such capacity, the "Servicer"), and
The Bank of New York (Delaware), as trustee (in such capacity, the "Master Trust
Trustee"). The assets of the Master Trust include, among other things, certain
amounts due on a pool of MasterCard(R) and VISA(R) revolving credit card
accounts of the Bank (the "Receivables"), and the benefit of a certain Credit
Enhancement (as hereinafter defined), if any. Pursuant to the Pooling and
Servicing Agreement and the Trust Agreement, the Bank has caused the Master
Trust to issue, and the Issuer to acquire, a series of investor certificates
entitled the Series 2005-CC Certificate (the "Collateral Certificate"). The
Collateral Certificate is an investor certificate under the Pooling and
Servicing Agreement that represents undivided beneficial interests in certain
assets of the Master Trust.
The Notes will be sold in a public offering by the Issuer through the
underwriters for the Class A Notes listed on Schedule A hereto (the "Class A
Underwriters"), the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters") and the underwriters for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriters" and, together with the
Class A Underwriters and Class B Underwriters, the "Underwriters"). Any Notes
sold pursuant to this Underwriting Agreement may be entitled to the benefits of
a reserve account, and in the case of the Class C Notes, are entitled to the
benefits of a spread account ("Credit Enhancement"). To the extent not defined
herein, capitalized terms used herein have the meanings assigned to such terms
in the Indenture or the Pooling and Servicing Agreement. Unless otherwise stated
herein, as the context otherwise requires or if such term is otherwise defined
in the Indenture or the Pooling and Servicing Agreement, each capitalized term
used or defined herein shall relate only to the Notes designated in this
Underwriting Agreement and no other series, class or tranche of notes issued by
the Issuer.
The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a shelf registration statement
on Form S-3 (having registration numbers 333-126628, 000-000000-00,
333-126628-02), including a form of prospectus, relating to the Notes and the
Collateral Certificate. The registration statement as amended has been declared
effective by the Commission. If any post-effective amendment has been filed with
respect thereto, prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. Such
registration statement, as amended at the time of effectiveness, including all
material incorporated by reference therein and including all information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is referred to in this
Agreement as the "Registration Statement." The Bank proposes to file with the
Commission pursuant to Rule 424(b) under the Act ("Rule 424(b)") a final
prospectus supplement (the "Prospectus Supplement") and a final prospectus
updating and modifying the prospectus included in the Registration Statement
(such
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prospectus, in the form filed with the Commission pursuant to Rule 424(b) is
hereinafter referred to as the "Basic Prospectus") relating to the Notes and the
method of distribution thereof. The Basic Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement thereto, is
hereinafter referred to as the "Prospectus."
Prior to the time the first contract of sale for the Notes was entered
into (the "Time of Sale"), the Bank had prepared a preliminary Prospectus, dated
[___________] (subject to completion), which will be filed with the Commission
pursuant to Rule 424(b). The Time of Sale, as designated by the Representative,
is [____] pm (Eastern Time (U.S.)) on [___________]. As used herein,
"Preliminary Prospectus" means, with respect to any date or time referred to
herein, the most recent preliminary Prospectus (as amended or supplemented, if
applicable), which has been prepared and delivered by the Bank to the
Underwriters in accordance with the provisions hereof.
1. Upon the execution of this Agreement, the Bank represents, warrants
and covenants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having registration
numbers 333-126628, 000-000000-00, 333-126628-02), including such amendments
thereto as may have been required on the date of this Agreement, has been filed
with the Commission and such Registration Statement as amended has become
effective. The conditions to the use of a shelf registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Bank, the Issuer and the Registration
Statement. The Preliminary Prospectus and the Prospectus will be filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations of the Commission under the Act
(the "Rules and Regulations");
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the Commission,
and on the effective date of the Registration Statement, the Registration
Statement conformed in all material respects to the requirements of the Act and
the Rules and Regulations, and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the date of
this Agreement, the Registration Statement conforms, and at the time of filing
of the Prospectus pursuant to Rule 424(b) the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and Regulations
and will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and on the Closing Date the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the Act
and the Rules and Regulations and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Bank and the Issuer in writing by such Underwriter through the
Representative expressly for use therein; provided further, however, that, for
clarification
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purposes, in this Section 1(b) only, it is understood that the term "Prospectus"
include static pool information required to be disclosed pursuant to Item 1105
of Regulation AB under the Act, without regard to whether such information is
deemed to be a part of a prospectus under Item 1105(d) of Regulation AB under
the Act;
(c) The Preliminary Prospectus at the Time of Sale did not, and
at the Closing Date will not, contain 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 (it
being understood that no representation or warranty is made with respect to the
omission of pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus); provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Bank in writing by such Underwriter through the Representative
expressly for use in the Preliminary Prospectus; provided, however, that, for
clarification purposes, in this Section 1(c) only, it is understood that the
terms "Preliminary Prospectus" and "Prospectus" include static pool information
required to be disclosed pursuant to Item 1105 of Regulation AB under the Act,
without regard to whether such information is deemed to be a part of a
prospectus under Item 1105(d) of Regulation AB under the Act;
(d) Other than the Preliminary Prospectus and the Prospectus, the
Bank (including its agents and representatives other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized, approved or
referred to and will not make, use, prepare, authorize, approve or refer to any
"written communication" (as defined in Rule 405 under the Act) that constitutes
an offer to sell or solicitation of an offer to buy the Notes.
(e) As of the Closing Date, the representations and warranties of
the Bank, as Seller and Servicer, in the Pooling and Servicing Agreement will be
true and correct;
(f) The Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Preliminary Prospectus and to execute,
deliver and perform this Agreement and to authorize the sale of the Notes, and
to consummate the transactions contemplated by this Agreement and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Bank and its
subsidiaries, taken as a whole;
(g) The Collateral Certificate has been duly authorized,
executed, issued and delivered pursuant to the Pooling and Servicing Agreement,
authenticated by the Master Trust Trustee and delivered by the Bank, as
Beneficiary (as defined in the Trust Agreement), to the Owner Trustee on behalf
of the Issuer pursuant to the Trust Agreement, and is entitled to the benefits
provided by the Pooling and Servicing Agreement. Each increase in the Invested
Amount of the Collateral Certificate will have been authorized and effected in
accordance with the Pooling and Servicing Agreement as of the applicable
issuance date of each
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series of notes under the Indenture; the Pooling and Servicing Agreement has
been duly authorized by the Bank and executed and delivered by the Bank and the
Master Trust Trustee and constitutes a valid and binding agreement of the Bank;
and the Collateral Certificate and the Pooling and Servicing Agreement conform
to the descriptions thereof in the Preliminary Prospectus in all material
respects;
(h) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or governmental body is required to be
obtained or made by the Bank for the consummation of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement, except
such as have been obtained and made under the Act, such as may be required under
state securities laws and the filing of any financing statements required to
perfect the Master Trust Trustee's interest in the Receivables or the Indenture
Trustee's interest in the Collateral;
(i) The Bank is not in violation of its organizational documents
or in default in its performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to which it is a
party or by which it or its properties are bound which would have a material
adverse effect on the transactions contemplated herein or in the Pooling and
Servicing Agreement. The execution, delivery and performance by the Bank of this
Agreement and the Pooling and Servicing Agreement, and the issuance and delivery
of the Collateral Certificate and the Notes and compliance with the terms and
provisions thereof will not result in a material breach or violation of any of
the terms and provisions of, or constitute a material default under, any
statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Bank, or any of its properties or any
agreement or instrument to which the Bank is a party or by which the Bank is
bound or to which any of the properties of the Bank is subject, or the
organizational documents of the Bank; and the Bank has full power and authority
to authorize the issuance of the Collateral Certificate and the sale of the
Notes as contemplated by this Agreement, and to enter into this Agreement and
the Pooling and Servicing Agreement;
(j) Other than as set forth or contemplated in the Preliminary
Prospectus, there are no legal or governmental proceedings pending or, to the
knowledge of the Bank, threatened to which any of the Bank or its subsidiaries
is or may be a party or to which any property of the Bank or its subsidiaries is
or may be the subject which, if determined adversely to the Bank, could
individually or in the aggregate reasonably be expected to have a material
adverse effect on (i) the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the Bank
and its subsidiaries, taken as a whole, and the interests of the holders of the
Notes (the "Noteholders"), or (ii) the interests of the Noteholders; and there
are no contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which will not have been filed as
required or which are not described as required;
(k) This Agreement has been duly authorized, executed and
delivered by the Bank and constitutes a valid and binding agreement of the Bank;
and
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(l) The Bank was not, on the date on which the first bona fide
offer of the Notes sold pursuant to this Agreement was made, an "ineligible
issuer" as defined in Rule 405 under the Act.
2. Upon the execution of this Agreement, the Issuer represents,
warrants and covenants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having registration
numbers 333-126628, 000-000000-00, 333-126628-02), including such amendments
thereto as may have been required on the date of this Agreement, has been filed
with the Commission and such Registration Statement as amended has become
effective. The conditions to the use of a shelf registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Issuer and the Registration Statement. The
Preliminary Prospectus and the Prospectus will be filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations;
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Issuer, threatened by the
Commission, and on the effective date of the Registration Statement, the
Registration Statement conformed in all material respects to the requirements of
the Act and the Rules and Regulations, and did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on the
date of this Agreement, the Registration Statement conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) the Prospectus will conform, in
all material respects to the requirements of the Act and the Rules and
Regulations and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and on the Closing Date the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the Act
and the Rules and Regulations and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Issuer and the Bank in writing by such Underwriter through the
Representative expressly for use therein;
(c) The Preliminary Prospectus at the Time of Sale did not, and
at the Closing Date will not, contain 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 (it
being understood that no representation or warranty is made with respect to the
omission of pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus); provided, however, that this
representation and warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Issuer in writing by such Underwriter through the
Representative expressly for use in the Preliminary Prospectus;
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(d) Other than the Preliminary Prospectus and the Prospectus, the
Issuer (including its agents and representatives other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to any
"written communication" (as defined in Rule 405 under the Act) that constitutes
an offer to sell or solicitation of an offer to buy the Notes.
(e) As of the Closing Date, the representations and warranties of
the Issuer in the Indenture will be true and correct in all material respects;
(f) The Issuer has been duly created and is validly existing as a
statutory trust in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as described
in the Preliminary Prospectus and to execute, deliver and perform the Indenture,
and to authorize the issuance of the Notes, and to consummate the transactions
contemplated by the Indenture;
(g) As of the Closing Date, the Notes have been duly authorized,
and, when executed, issued and delivered pursuant to the Indenture, duly
authenticated by the Indenture Trustee and paid for by the Underwriters in
accordance with this Agreement, will be duly and validly executed,
authenticated, issued and delivered, and valid and binding obligations of the
Issuer and entitled to the benefits provided by the Indenture; the Indenture has
been duly authorized by the Issuer and, when executed and delivered by the
Issuer and the Indenture Trustee (in the case of the Indenture), each of the
Indenture and this Agreement will constitute a valid and binding agreement of
the Issuer; and the Notes and the Indenture conform to the descriptions thereof
in the Preliminary Prospectus in all material respects;
(h) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or governmental body is required to be
obtained or made by the Issuer for the consummation of the transactions
contemplated by this Agreement or the Indenture, except such as have been
obtained and made under the Act, such as may be required under state securities
laws and with respect to the filing of any financing statements required to
perfect the Issuer's interest in the Collateral Certificate or the Indenture
Trustee's interest in the Collateral;
(i) The Issuer is not in violation of its organizational
documents or in default in its respective performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties are bound
which would have a material adverse effect on the transactions contemplated
herein or in the Indenture. The execution, delivery and performance of this
Agreement and the Indenture, and the acquisition, pledge and delivery of the
Collateral Certificate and the execution and delivery of the Notes and
compliance with the terms and provisions thereof will not result in a material
breach or violation of any of the terms and provisions of, or constitute a
material default under, any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the Issuer or
any of its properties or any agreement or instrument to which the Issuer is a
party or by which the Issuer is bound or to which any of the properties of the
Issuer is subject, or the organizational documents of the Issuer; and the Issuer
has full power and authority to authorize, issue and sell the Notes as
contemplated by this Agreement and the Indenture and to enter into the
Indenture;
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(j) Other than as set forth or contemplated in the Preliminary
Prospectus, there are no legal or governmental proceedings pending or, to the
knowledge of the Issuer, threatened to which any of the Issuer or its
subsidiaries is or may be a party or to which any property of the Issuer or its
subsidiaries is or may be the subject which, if determined adversely to the
Issuer, could individually or in the aggregate reasonably be expected to have a
material adverse effect on (i) the general affairs, business, prospects,
management, financial position, equity or results of operations of the Issuer
and its subsidiaries, taken as a whole, and the interests of the Noteholders, or
(ii) the interests of the Noteholders; and there are no contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which will not have been filed as required or which are not described
as required; and
(k) This Agreement has been duly authorized, executed and
delivered by the Issuer and constitutes a valid and binding agreement of the
Issuer.
3. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, each
of the Bank and the Issuer agrees to sell to the Class A Underwriters, and the
Class A Underwriters agree, severally and not jointly, to purchase from the
Seller at a purchase price of [___] % of the principal amount thereof, $[___]
aggregate principal amount of the Class A Notes, with each Class A Underwriter
to purchase the amounts shown on Schedule A hereto.
4. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, each
of the Bank and the Issuer agrees to sell to the Class B Underwriters, and the
Class B Underwriters agree, severally and not jointly, to purchase from the
Seller at a purchase price of [___] % of the principal amount thereof, $[___]
aggregate principal amount of the Class B Notes, with each Class B Underwriter
to purchase the amounts shown on Schedule A hereto.
5. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, each
of the Bank and the Issuer agrees to sell to the Class C Underwriters, and the
Class C Underwriters agree, severally and not jointly, to purchase from the
Seller at a purchase price of [___] % of the principal amount thereof, $[___]
aggregate principal amount of the Class C Notes, with each Class C Underwriter
to purchase the amounts shown on Schedule A hereto.
6. The Bank understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Notes as soon after the
Registration Statement and this Agreement have become effective as in the
judgment of the Representative is advisable and (ii) initially to offer the
Notes upon the terms set forth in the Preliminary Prospectus.
7. Payment for the Notes shall be made to the Bank or to its order by
wire transfer of same day funds at 9:00 A.M., New York City time, on the Closing
Date (as hereinafter defined), or at such other time on the same or such other
date, not later than the fifth Business Day thereafter, as the Representative
and the Bank may agree upon in writing. The time and date of such payment for
the Notes are referred to herein as the "Closing Date." As used
8
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
8. Upon the execution of this Agreement, the Bank and the Issuer,
jointly and severally covenant and agree with the several Underwriters that:
(a) Immediately following the execution of this Agreement, the
Bank and the Issuer will prepare a final Prospectus setting forth the terms of
the Notes not otherwise specified in the Preliminary Prospectus, the price at
which such Notes are to be purchased by the Underwriters, the initial public
offering price, the selling concessions and allowances and such other
information as the Bank and the Issuer deem appropriate. The Bank and the Issuer
will transmit the final Prospectus to the Commission pursuant to Rule 424(b) by
a means reasonably calculated to result in filing with the Commission pursuant
to Rule 424(b).
(b) The Issuer will deliver (or the Bank will cause the Issuer to
deliver), at the expense of the Bank, to the Representative, two signed copies
of the Registration Statement and each amendment thereto, in each case including
exhibits, and to each Underwriter a conformed copy of the Registration Statement
and each amendment thereto, in each case without exhibits and, during the period
mentioned in paragraph (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto) as the
Representative may reasonably request.
(c) Before filing any amendment or supplement to the Registration
Statement, the Preliminary Prospectus or the Prospectus, whether before or after
the time the Registration Statement becomes effective, the Bank or the Issuer
will furnish to the Representative a copy of the proposed amendment or
supplement.
(d) The Bank or the Issuer will advise the Representative
promptly, and will confirm such advice in writing, (i) when any amendment to the
Registration Statement shall have become effective, (ii) when any supplement or
amendment to the Preliminary Prospectus or the Prospectus has been filed, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, and (v) of the receipt by the
Bank or the Issuer of any notification with respect to any suspension of the
qualification of the Notes for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order or notification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(e) The Bank will, if during such period of time after the first
date of the public offering of the Notes as in the opinion of counsel for the
Underwriters a Prospectus relating to the Notes is required by law to be
delivered (including any such delivery as contemplated by Rule 172 under the
Act) in connection with sales by an Underwriter or dealer, (i) any event shall
occur as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the
9
Prospectus is delivered to a purchaser, not misleading, or (ii) it is necessary
to amend or supplement the Prospectus to comply with the law, forthwith prepare
and furnish, at the expense of the Bank, to the Underwriters and to the dealers
(whose names and addresses the Representative will furnish to the Bank and the
Issuer) to which Notes may have been sold and to any other dealers upon request,
a copy of such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with the law.
(f) The Issuer will endeavor to qualify (or the Bank will cause
the Issuer to qualify) the Notes for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualification in effect so long as reasonably required
for distribution of the Notes and to pay all fees and expenses (including fees
and disbursements of counsel to the Underwriters) reasonably incurred in
connection with such qualification and in connection with the determination of
the eligibility of the Notes for investment under the laws of such jurisdictions
as the Representative may designate; provided, however, that neither the Bank
nor the Issuer shall be obligated to qualify to do business in any jurisdiction
in which it is not currently so qualified; and provided further that neither the
Bank nor the Issuer shall be required to file a general consent to service of
process in any jurisdiction.
(g) So long as any of the Notes are outstanding, the Issuer or
the Bank will furnish to the Representative copies of all reports or other
communications (financial or other) furnished to holders of the Notes and copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange.
(h) For a period from the date of this Agreement until the
retirement of the Notes, the Bank, as Servicer, will furnish to the
Representative copies of each certificate and the annual statements of
compliance delivered to the Master Trust Trustee pursuant to Article III of the
Pooling and Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Master Trust Trustee pursuant to
Article III of the Pooling and Servicing Agreement, by first-class mail promptly
after such statements and reports are furnished to the Master Trust Trustee.
(i) During the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, neither the Bank
nor the Issuer will offer, sell, contract to sell or otherwise dispose of any
credit card backed securities with the same term and other characteristics
identical to the Notes without the prior written consent of the Representative.
(j) The Bank will cause the Notes to be registered in a timely
manner pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), under the circumstances where such registration is required,
and the Indenture to be qualified pursuant to the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(k) To the extent, if any, that the rating provided with respect
to the Notes by the rating agency or rating agencies rating the Notes (each, a
"Rating Agency") is
10
conditional upon the furnishing of documents or the taking of any other
reasonable action by the Bank or the Issuer agreed upon on or prior to the
Closing Date, the Bank or the Issuer, as applicable, shall furnish such
documents and take any such other reasonable action.
9. The Bank will pay all costs and expenses incident to the
performance of its obligations and the obligations of the Issuer under this
Agreement, including, without limiting the generality of the foregoing, (i) all
costs and expenses incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) all costs and expenses incident
to the preparation, printing and filing under the Act or the Exchange Act of the
Registration Statement, the Prospectus or the Preliminary Prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) all costs
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Notes under the laws of such
jurisdictions as the Underwriters may designate (including reasonable fees and
expenses of counsel for the Underwriters), (iv) all costs and expenses related
to any filing with the National Association of Securities Dealers, Inc., (v) all
costs and expenses in connection with the printing (including word processing
and duplication costs) and delivery of this Agreement, the Pooling and Servicing
Agreement, the Indenture and any Blue Sky Memorandum and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus as herein provided, (vi) the reasonable fees and disbursements of the
Bank's counsel and accountants, and (vii) all costs and expenses payable to each
Rating Agency in connection with the rating of the Notes, except that the
Underwriters agree to reimburse the Bank for an amount, if any, specified in
this Agreement on the Closing Date for application toward such expenses. It is
understood that, except as specifically provided in Sections 11 and 15 of this
Agreement, the Underwriters will pay all of their own fees, costs and expenses
(including the fees and disbursements of its counsel), transfer taxes and any
advertising expenses in connection with sales or offers from the Underwriters to
third parties.
10. The several obligations of the Underwriters hereunder are subject
to the performance by the Bank and the Issuer of their respective obligations
hereunder and to the following additional conditions:
(a) On or prior to the Closing Date, the Representative shall
have received a letter or letters of Ernst & Young LLP, dated as of the date of
the Preliminary Prospectus and as of the Closing Date, confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder, and stating that the engagement to
apply agreed-upon procedures was performed in accordance with the standards
established by the American Institute of Certified Public Accountants, and
otherwise in form and in substance satisfactory to the Representative and its
counsel.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 6 of this
Agreement; and, as of the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or, to the knowledge of the
Bank or the Issuer, threatened by the Commission; and all requests for
additional information from the Commission with respect to the Registration
Statement shall have been complied with to the satisfaction of the
Representative.
11
(c) The representations and warranties of the Bank and the Issuer
contained herein are true and correct in all material respects on and as of the
Closing Date as if made on and as of the Closing Date, and each of the Bank and
the Issuer shall have complied with all agreements and all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date.
(d) The Representative shall have received an opinion of Xxxxx X.
Xxxxxxx, Vice President and Attorney for the Bank or such other officer that the
Bank may choose (provided that such officer is acceptable to the
Representative), subject to customary qualifications, assumptions, limitations
and exceptions, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, to the effect that:
(i) The Bank is a national banking association formed under
the laws of the United States of America and is authorized to transact the
business of banking, including to own its assets and to transact its
business as described in the Preliminary Prospectus and the Prospectus, and
had at all relevant times and now has the power, authority and legal right
to acquire, own, sell and service the Accounts and the Receivables;
(ii) The Bank has the power and authority to execute and
deliver this Agreement, the Pooling and Servicing Agreement, the Trust
Agreement, the Indenture and the other transaction documents referred to in
such opinion that are executed by the Bank, on its behalf and on behalf of
the Issuer as Administrator (the Indenture and such other transaction
documents being referred to herein as the "Trust Documents") and to
consummate the transactions contemplated herein and therein;
(iii) Each of the Trust Documents and the Collateral
Certificate has been duly authorized, executed and delivered by the Bank;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation by the Bank of the transactions contemplated herein or in
the Trust Documents, except for such consents, approvals, orders or filings
as may be required under federal or state securities laws and except for
such filings as may be required to perfect interests in the Receivables
pursuant to the Pooling and Servicing Agreement or the Collateral pursuant
to the Trust Agreement and the Indenture;
(v) Neither the execution, delivery and performance by the
Bank of its obligations under the Trust Documents, the transfer of the
Receivables to the Master Trust, the issuance and delivery of the
Collateral Certificate, the issuance and delivery of the Notes, nor the
consummation of any other of the transactions contemplated in the Trust
Documents will conflict with, result in a breach of or violation of any of
the terms of, or constitute a default under, the Articles of Association or
By-laws of the Bank, each as amended, or any rule, order, statute or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Bank or the terms of any
material indenture or other material agreement or instrument
12
known to such counsel to which the Bank is a party or by which it or its
properties are bound; and
(vi) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened before any court,
administrative agency or other tribunal (x) asserting the invalidity of any
Trust Document, the Collateral Certificate or the Notes, (y) seeking to
prevent the issuance of the Collateral Certificate or the Notes or the
consummation of any of the transactions contemplated by the Trust
Documents, the Collateral Certificate or the Notes, which might materially
and adversely affect the performance by the Bank of its obligations under,
or the validity or enforceability of, any Trust Document, the Collateral
Certificate or the Notes or (z) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Preliminary
Prospectus and the Prospectus under the headings "Prospectus Summary -- Tax
Status" and "Federal Income Tax Consequences."
(e) The Representative shall have received an opinion of Xxxxx
Day, special counsel for the Bank and the Issuer, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Registration Statement has become effective under
the Act and the Prospectus has been filed with the Commission, pursuant to
Rule 424(b) promulgated under the Act; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; and the
Registration Statement and the Prospectus (other than the financial and
statistical information therein as to which such counsel express no
opinion), as of their respective effective date or date of issuance,
complied as to form in all material respects with the requirements of the
Act and the rules and regulations promulgated thereunder;
(ii) This Agreement, the Pooling and Servicing Agreement,
the Indenture, the Collateral Certificate and the Notes conform in all
material respects to the descriptions thereof contained in the Registration
Statement, in the form in which it became effective, and the Prospectus;
(iii) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and neither
the Master Trust nor the Issuer is now, or immediately following the sale
of the Notes pursuant to this Agreement will be, required to be registered
under the Investment Company Act of 1940, as amended, and the Indenture has
been qualified under the Trust Indenture Act;
(iv) The Indenture is the legal, valid and binding
obligation of the Issuer, enforceable against the Issuer in accordance with
its terms;
(v) When the Notes have been duly executed and delivered by
the Issuer, and when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered and paid for by the Underwriters pursuant
to this Agreement, the
13
holder of record of any Note will be entitled to the benefits afforded by
the Indenture, and the Notes will constitute the legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance with
their terms;
(vi) The statements in the Preliminary Prospectus and the
Prospectus under the heading "Benefit Plan Investors," to the extent they
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material respects.
Such counsel also shall state that they have participated in
conferences with representatives of the Bank and its accountants, the
Underwriters and counsel to the Underwriters concerning the Registration
Statement, the Prospectus and the Preliminary Prospectus and have considered the
matters required to be stated therein and the matters stated therein, although
they are not independently verifying the accuracy, completeness or fairness of
such statements (except as stated in paragraph (vi) above) and based upon and
subject to the foregoing, nothing has come to such counsel's attention to cause
such counsel to believe that the Registration Statement (excluding any exhibits
filed therewith), at the time it became effective, contained an untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading,
that the Prospectus, as of its date or as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, or that the
Preliminary Prospectus, as of the Time of Sale, contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel has not been
requested to and does not make any comment in this paragraph with respect to the
financial statements, supporting schedules and other financial or statistical
information contained in the Registration Statement, the Prospectus or the
Preliminary Prospectus or, in the case of the Preliminary Prospectus, the
omission of pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus). References to the Preliminary
Prospectus or the Prospectus in this paragraph include any amendments or
supplements thereto.
(f) The Representative shall have received an opinion or opinions
of Xxxxx Day, special counsel for the Bank and the Issuer, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, (i) with respect to the perfection of the Master Trust Trustee's
interest in the Receivables and certain other matters relating to the applicable
Credit Enhancement, if any, (ii) with respect to the perfection of the Issuer's
interest in the Collateral Certificate and the Issuer Accounts, (iii) with
respect to certain matters relating to the transfer of the Collateral
Certificate and the applicable Credit Enhancement, if any, to the Indenture
Trustee, and (iv) with respect to the applicability of certain provisions of the
National Bank Act and the Federal Deposit Insurance Act, as amended by the
Financial Institutions, Reform, Recovery and Enforcement Act of 1989 with
respect to the effect of receivership of the Bank on such interest in the
Receivables and with respect to other related matters, in a form previously
approved by you and your counsel. In addition, the Representative shall have
received
14
a reliance letter with respect to any opinion that the Bank is required to
deliver to any Rating Agency.
(g) The Representative shall have received the opinion delivered
by Xxxxx Day, counsel to the Bank which opinion shall provide that:
(i) to the extent that the Notes are characterized as
indebtedness for federal income tax purposes, they will be characterized as
indebtedness for purposes of the Ohio franchise tax as measured by net
income;
(ii) to the extent that the Notes, when issued, will not
represent interests in an association taxable as a corporation for federal
income tax purposes, the Notes should not represent interests in a person
or entity (1) taxable as a corporation for purposes of the Ohio corporation
franchise tax measured by net income, (2) subject to the direct tax on an
Ohio "qualifying pass-through entity," (3) subject to the Ohio income tax
levied on individuals and estates, or (4) subject to the Ohio withholding
tax levied on "qualifying pass-through entity" or a "qualifying trust"; and
(iii) the statements in the Preliminary Prospectus and the
Prospectus under the heading "Federal Income Tax Consequences--State and
Local Taxation," to the extent they express legal conclusions with respect
to Ohio law, are correct in all material respects.
(h) The Representative shall have received an opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special tax counsel for the Bank and the Issuer
subject to customary qualifications, assumptions, limitations and exceptions,
dated the Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, to the effect that the statements in the
Preliminary Prospectus and the Prospectus under the heading "Federal Income Tax
Consequences," to the extent they constitute matters of law or legal conclusions
with respect thereto, have been reviewed by such counsel and are correct in all
material respects.
(i) The Representative shall have received an opinion from
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Bank and the
Issuer, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, with respect to (i) the
creation of a security interest in the Receivables in favor of the Master Trust
Trustee, (ii) the characterization of the Master Trust for federal income tax
purposes being determinative of the character of the Master Trust under the laws
of the State of Delaware concerning any tax imposed on or measured by income,
(iii) the Pooling and Servicing Agreement constituting the legal, valid and
binding obligation of the Bank under the laws of the State of Delaware, and
being enforceable against the Bank in accordance with its terms and (iv) when
authenticated and delivered in accordance with the terms of the Pooling and
Servicing Agreement, the Collateral Certificate will be duly and validly issued
and outstanding, fully paid and nonassessable, and will be entitled to the
benefits of the Pooling and Servicing Agreement.
(j) The Representative shall have received from Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Underwriters, such opinion
or opinions, dated the Closing
15
Date, with respect to such matters relating to this transaction as the
Representative may require, and the Seller shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(k) The Representative shall have received an opinion delivered
by Xxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx LLP (or such other counsel as may be
satisfactory to the Representative), as counsel to the Seller, which opinion
shall provide that the characterization of the Issuer for federal income tax
purposes will be determinative of the character of the Issuer under the laws of
the State of Michigan concerning any tax imposed on or measured by income.
(l) The Representative shall have received a certificate, dated
the Closing Date, of a Vice President or more senior officer of the Bank in
which such officer, to his or her knowledge after due inquiry, shall state that
the representations and warranties of the Bank in this Agreement are true and
correct in all material respects on and as of the Closing Date, that the Bank
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that the
representations and warranties of the Bank, as Seller and as Servicer, in the
Pooling and Servicing Agreement are true and correct in all material respects as
of the dates specified in the Pooling and Servicing Agreement, that the
Registration Statement has become effective, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are threatened by the Commission and
that, subsequent to the Time of Sale, there has been no material adverse change
in the financial position or results of operation of the Bank's credit card
business except as set forth in or contemplated by the Preliminary Prospectus.
(m) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx LLP, counsel to the Master Trust Trustee, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Master Trust Trustee is a Delaware banking
corporation duly incorporated and validly existing in good standing under
the laws of the State of Delaware and is authorized and qualified to accept
the trusts imposed by the Pooling and Servicing Agreement and to act as
Master Trust Trustee under the Pooling and Servicing Agreement;
(ii) The Agreement of Resignation, Appointment and
Acceptance of Trustee (the "Trustee Agreement"), under which agreement the
Master Trust Trustee accepted its appointment as successor Master Trust
Trustee under the Pooling and Servicing Agreement, has been duly
authorized, executed and delivered by the Master Trust Trustee;
(iii) The Master Trust Trustee has duly authenticated the
Collateral Certificate;
(iv) The execution and delivery of the Trustee Agreement
under which the Master Trust Trustee accepted its appointment as successor
Master Trust
16
Trustee under the Pooling and Servicing Agreement by the Master Trust
Trustee and the performance by the Master Trust Trustee of its obligations
under the Trustee Agreement and, as successor Master Trust Trustee, of its
obligations under the Pooling and Servicing Agreement do not conflict with
or result in a violation of (x) any existing law or regulation of the
United States of America or the State of Delaware governing the banking or
trust powers of the Master Trust Trustee, or (y) the certificate of
incorporation or by-laws of the Master Trust Trustee;
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of Delaware having jurisdiction over the banking or trust powers of
the Master Trust Trustee is required in connection with the execution and
delivery by the Master Trust Trustee of the Trustee Agreement under which
the Master Trust Trustee accepted its appointment as successor Master Trust
Trustee under the Pooling and Servicing Agreement or the performance of its
obligations thereunder or under the Pooling and Servicing Agreement; and
(vi) To the best knowledge of such counsel, there is no
action, suit or proceeding pending or threatened against the Master Trust
Trustee (as Master Trust Trustee under the Pooling and Servicing Agreement)
before or by any governmental authority that if adversely decided, would
materially adversely affect the ability of the Master Trust Trustee to
perform its obligations under the Pooling and Servicing Agreement.
(n) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer,
subject to customary qualifications, assumptions, limitations and exceptions,
dated the Closing Date, in form and substance satisfactory to the Representative
and its counsel, with respect to the creation of a security interest in the
Collateral Certificate in favor of the Issuer and with respect to the perfection
by filing of the Indenture Trustee's security interest, for the benefit of the
Noteholders, in the Collateral Certificate and the proceeds thereof.
(o) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, subject to
customary qualifications, assumptions, limitations and exceptions dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of the
State of Delaware.
(ii) The Owner Trustee has power and authority to execute,
deliver and perform its obligations under the Trust Agreement and to
consummate the transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation
17
of the Owner Trustee, enforceable against the Owner Trustee in accordance
with its terms.
(iv) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Trust Agreement, nor the consummation of the transactions by
the Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the State of
Delaware or the United States of America governing the banking or trust
powers of the Owner Trustee (other than the filing of the certificate of
trust with the Delaware Secretary of State, which certificate of trust has
been duly filed).
(v) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Trust Agreement, nor the consummation of the transactions by
the Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, contemplated thereby, is in violation of the charter or by
laws of the Owner Trustee or of any law, governmental rule or regulation of
the State of Delaware or of the United States of America governing the
banking or trust powers of the Owner Trustee or, to our knowledge, without
independent investigation, of any indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which it is
bound or, to our knowledge, without independent investigation, of any
judgment or order applicable to the Owner Trustee.
(vi) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
government authority which, if adversely determined, would materially and
adversely affect the ability of the Owner Trustee to carry out the
transactions contemplated by the Trust Agreement.
(p) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Bank and the
Issuer, subject to customary qualifications, assumptions, limitations and
exceptions dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel, substantially to the effect that:
(i) The Issuer has been duly created and is validly existing
in good standing as a statutory trust under the Delaware Statutory Trust
Act, 12 Del.C. Section 3801, et seq. (referred to in this subsection (p) as
the "Act");
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Owner Trustee and the Beneficiary (as defined in the
Trust Agreement), enforceable against the Owner Trustee and the
Beneficiary, in accordance with its terms;
18
(iii) The Trust Agreement and the Act authorize the Issuer
to execute and deliver the Indenture and the other transaction documents
referred to in such opinion (collectively referred to in this subsection
(p) as the "Trust Documents"), to issue the Notes and the Issuer's
certificate of beneficial interest (referred to in this subsection (p) as
the "Trust Certificate") and to grant the trust estate to the Indenture
Trustee as security for the Notes;
(iv) The Issuer has the power and authority, pursuant to the
Trust Agreement and the Act, to execute, deliver and perform its
obligations under the Trust Documents, the Notes and the Trust Certificate
and the execution and delivery of such agreements and obligations have been
duly authorized;
(v) The Trust Certificate has been validly issued and is
entitled to the benefits of the Trust Agreement;
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, the Notes or the Trust Certificate, nor the
consummation by the Issuer of any of the transactions by the Issuer
contemplated thereby, requires the consent or approval of, the withholding
of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware,
other than the filing of the certificate of trust of the Issuer with the
Delaware Secretary of State (which certificate of trust has been duly
filed) and the filing of any financing statements with the Delaware
Secretary of State in connection with the Trust Documents;
(vii) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, nor the consummation by the Issuer of the
transactions contemplated thereby, is in violation of the Trust Agreement
or of any law, rule or regulation of the State of Delaware applicable to
the Issuer;
(viii) Under Section 3805(b) of the Act, no creditor of the
holder of the Trust Certificate shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to, the
property of the Issuer except in accordance with the terms of the Trust
Agreement;
(ix) Under Section 3808(a) and (b) of the Act, the Issuer
may not be terminated or revoked by the Beneficiary (as defined in the
Trust Agreement), and the dissolution, termination or bankruptcy of any
holder of the Trust Certificate shall not result in the termination or
dissolution of the Issuer, except to the extent otherwise provided in the
Trust Agreement;
(x) The Owner Trustee is not required to hold legal title to
the owner trust estate in order for the Issuer to qualify as a statutory
trust under the Act;
(xi) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the perfection of a security interest
in the Collateral Certificate;
19
(xii) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the transfer of the Collateral
Certificate to or from the Issuer;
(xiii) The corpus of the Issuer is not subject to any
personal property or similar ad valorem tax imposed by the State of
Delaware;
(xiv) The characterization of the Issuer for federal income
tax purposes, whether as a trust, partnership or association taxable as a
corporation, is determinative of the character of the Issuer for State of
Delaware income tax purposes, and, if the Issuer is characterized as a
partnership for State of Delaware income tax purposes, no State of Delaware
income tax is imposed upon the Issuer. For State of Delaware income tax
purposes, taxable income would be derived from "federal taxable income,"
and for the purpose of ascertaining such taxable income for State of
Delaware income tax purposes, the amount of federal taxable income as
determined for federal income tax purposes would be determinative, whether
such amount of federal taxable income is determined upon a characterization
of the transaction as a sale or as a loan;
(xv) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the Notes;
(xvi) There is no income tax imposed by New Castle County,
Delaware, upon the Issuer and New Castle County, Delaware, is prohibited by
Delaware State law from imposing a personal property tax upon or measured
by the corpus of the Issuer; and
(xvii) The Beneficiary (as defined in the Trust Agreement)
is the sole beneficial owner of the Issuer.
(q) The Representative shall have received a certificate, dated
the Closing Date, of an authorized representative of the Issuer in which such
representative, to his or her knowledge after due inquiry, shall state that the
representations and warranties of the Issuer in this Agreement are true and
correct in all material respects on and as of the Closing Date, that the Issuer
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that the
representations and warranties of the Issuer in the Indenture are true and
correct in all material respects as of the dates specified in the Indenture,
that the Registration Statement has become effective, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been issued or are threatened by the
Commission and that, subsequent to the Time of Sale, there has been no material
adverse change in the financial position or results of operation of the Issuer's
business except as set forth in or contemplated by the Preliminary Prospectus.
(r) The Underwriters shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx LLP, counsel to the Indenture Trustee, subject to customary
qualifications, assumptions, limitations and exceptions dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
20
(i) The Indenture Trustee is a banking corporation organized
and validly existing and in good standing under the laws of the State of
New York and is authorized and qualified to accept the trusts imposed by
the Indenture and to act as Indenture Trustee under the Indenture;
(ii) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee;
(iii) The Indenture Trustee has duly executed and
authenticated the Notes on the Closing Date;
(iv) The execution and delivery of the Indenture by the
Indenture Trustee and the performance by the Indenture Trustee of the terms
of the Indenture do not conflict with or result in a violation of (x) any
law or regulation of the United States of America or the State of New York
governing the banking or trust powers of the Indenture Trustee, or (y) the
organization certificate or by-laws of the Indenture Trustee;
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers of
the Indenture Trustee is required in connection with the execution and
delivery by the Indenture Trustee of the Indenture or the performance by
the Indenture Trustee thereunder;
(vi) To the best knowledge of such counsel, there is no
action, suit or proceeding pending or threatened against the Indenture
Trustee (as Indenture Trustee under the Indenture or in its individual
capacity) before or by any governmental authority that if adversely
decided, would materially adversely affect the ability of the Indenture
Trustee to perform its obligations under the Indenture; and
(vii) The execution, delivery and performance by the
Indenture Trustee of the Indenture will not subject any of the property or
assets of the Issuer, or any portion thereof, to the imposition of any lien
which may be asserted against the Issuer by the Indenture Trustee in its
capacity as Indenture Trustee.
(s) The Representative shall receive evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been filed
in the office of the Secretaries of State of the states of Ohio and Delaware
(and such other states as may be necessary or desirable pursuant to applicable
state law) reflecting the interest of the Master Trust in the Receivables and
the proceeds thereof, and the interest of the Indenture Trustee in the
Collateral Certificate and the proceeds thereof, each as applicable.
(t) The Representative shall have received evidence satisfactory
to the Representative that the Class A Notes shall be rated "Aaa" by Xxxxx'x
Investors Service, Inc. ("Moody's"), "AAA" by Standard & Poor's Ratings Services
("Standard & Poor's") and "AAA" by Fitch, Inc. ("Fitch"), that the Class B Notes
shall be rated no lower than "A2" by Moody's, "A" by Standard & Poor's and "A"
by Fitch, and that the Class C Notes shall be rated no lower than "Baa2" by
Moody's, "BBB" by Standard & Poor's and "BBB" by Fitch.
21
The Bank will furnish you, or cause you to be furnished with, such
number of conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
11. (a) The Bank and the Issuer, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act as
follows: (i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus or the Prospectus, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (ii) against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Bank; and (iii) against any and all
expenses whatsoever (including, subject to Section 11(d) hereof, the reasonable
fees and disbursements of counsel chosen by you) as reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above; provided, however, that
the Bank and the Issuer will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any such documents in reliance upon and in conformity with written
information furnished to the Bank or the Issuer by the Underwriters expressly
for use therein. Each of the Bank and the Issuer acknowledges that information
relating to the Underwriters set forth in the first sentence under the heading
"Risk Factors--It May Not Be Possible to Find an Investor to Purchase Your
Notes" in the Preliminary Prospectus and the Prospectus and the information
under the heading "Underwriting" in the Preliminary Prospectus and the
Prospectus (other than the information in the last two paragraphs under such
heading) constitutes the only information furnished in writing by the
Underwriters or on behalf of the Underwriters for inclusion in the Preliminary
Prospectus and the Prospectus (the "Underwriters' Information").
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Bank and the Issuer against any losses, claims, damages or
liabilities to which the Bank or the Issuer may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement or
the Preliminary Prospectus or the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Bank or the Issuer by such Underwriter through the Representative
expressly for use in the Registration
22
Statement or the Preliminary Prospectus or the Prospectus, or any amendment or
supplement thereto.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Bank and the Issuer against any losses, claims,
damages or liabilities to which the Bank or the Issuer may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Underwriter
Free Writing Prospectus (as defined in Section 17(a) herein), or arising out of
or based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that such Underwriter will not be liable in any
such case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement in any Underwriter Free Writing Prospectus in reliance upon and in
conformity with (i) any written information furnished to such Underwriter by the
Bank or the Issuer expressly for use therein or (ii) the Preliminary Prospectus
or Prospectus, which information was not corrected by information subsequently
provided by the Bank or the Issuer to such Underwriter prior to the time of use
of such Underwriter Free Writing Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; provided, however, that the omission to so notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may otherwise have to any indemnified party other than under subsection
(a) or (b) above unless, to the extent the indemnifying party did not otherwise
learn of such action, such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest that cannot be waived, (ii) the actual or potential defendants in or
targets of any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize in writing the indemnified party to employ
separate counsel at the expense of the indemnifying party. The indemnifying
party shall not be liable for any settlement of any claim or proceeding effected
without its written consent. No indemnifying party shall, without the prior
written consent of the indemnified party,
23
effect any settlement of any pending or threatened action in respect of which
any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(e) For clarification purposes, in this Section 11 only, it is
understood that the terms "Preliminary Prospectus" and "Prospectus" include
static pool information required to be disclosed pursuant to Item 1105 of
Regulation AB under the Act, without regard to whether such information is
deemed to be a part of a prospectus under Item 1105(d) of Regulation AB under
the Act.
12. If the indemnification provided for in Section 11 is unavailable
or insufficient to hold harmless an indemnified party under subsection 11(a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection 11(a) or (b) above. In determining the
amount of contribution to which the respective parties are entitled, (i) there
shall be considered the relative benefits received by each party from the
offering of the Notes or, (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, there shall be considered not only the relative
benefits referred to in clause (i) above but also the relative fault of each
party in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities and expenses as well as any other
relevant equitable considerations. The relative benefits received by each party
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Bank or the Issuer
(including the proceeds of the offering of the Notes paid to the Bank by the
Issuer) bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault of each party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Bank, the Issuer or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. Each of the
Bank, the Issuer and each Underwriter agrees that it would not be equitable if
the amount of such contribution were determined by a pro rata, a per capita or
any other form of allocation that does not take into account these equitable
considerations. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
Section 12 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim that is the subject of this Section 12. Notwithstanding the
provisions of this Section 12, in no case shall any Underwriter (except as may
be provided in any agreement among the Underwriters relating to the offering of
the Notes) be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Notes purchased by such Underwriter
hereunder. Notwithstanding the provisions of this Section 12, no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation, pursuant to this
Section 12, to contribute are several in proportion to their respective
underwriting obligations and are not joint. For purposes of this Section 12,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act shall have the same rights to contribution as such Underwriter,
and each director of the Bank, each officer of the Bank who
24
signed the Registration Statement, and each person, if any, who controls the
Bank within the meaning of Section 15 of the Act shall have the same rights to
contribution as the Bank.
13. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Bank, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) there has occurred any material adverse change or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operation of National City Corporation or the
Bank and its subsidiaries, taken as a whole, the effect of which in the
reasonable judgment of the Representative materially impairs the investment
quality of the Notes; (ii) any downgrading in the rating of any outstanding
notes issued by the Issuer or any outstanding investor certificates issued by
the Master Trust, by any "nationally recognized statistical rating organization"
(as such term is defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of such notes or investor certificates (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) trading generally shall have been
suspended or materially limited on or by, as the case may be, the New York Stock
Exchange; (iv) a general moratorium on commercial banking activities in New
York, Michigan or Ohio shall have been declared by either Federal or New York,
Michigan or Ohio State authorities; or (v) there shall have occurred any
outbreak or escalation of hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impracticable or inadvisable to proceed with
completion of the sale and payment for the Notes.
14. If any Underwriter defaults in its obligations to purchase Notes
hereunder and the aggregate principal amount of the Notes that such defaulting
Underwriter agreed but failed to purchase does not exceed 10% of the total
principal amount of such Notes, you may make arrangements satisfactory to the
Bank for the purchase of such Notes by other persons, including the
non-defaulting Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated, in proportion to their
commitments hereunder, to purchase the Notes that such defaulting Underwriter
agreed but failed to purchase. If any Underwriter so defaults and the aggregate
principal amount of the Notes with respect to which such default or defaults
occur exceeds 10% of the total principal amount of such Notes and arrangements
satisfactory to you and the Bank for the purchase of such Notes by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Bank,
except as provided in Section 9 of this Agreement. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
15. If for any reason other than as set forth in Section 14 of this
Agreement the purchase of the Notes by the Underwriters is not consummated, the
Bank shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 9 of this Agreement and the respective obligations of the
Bank, the Issuer, and the Underwriters pursuant to Sections 11 and 12 of this
Agreement shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
occurrence
25
of any event specified in clauses (ii), (iii) or (iv) of Section 13 of this
Agreement, the Bank will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
16. Any action by the Underwriters hereunder may be taken by the
Representative on behalf of the Underwriters, and any such action taken by the
Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to [Name of Underwriter], as the
Representative, at [Address], Attention: [___], or to such other address as the
Representative may designate in writing to the Bank. Notices to the Bank shall
be given to it at 0000 Xxxx 0xx Xxxxxx Xxxxxxxxx, Xxxx 00000, Attention: [___].
17. (a) Each Underwriter, severally, represents, warrants and
covenants to the Bank and the Issuer that it has not prepared, made, used,
authorized, approved, disseminated or referred to and will not prepare, make,
use, authorize, approve, disseminate or refer to any "written communication" (as
defined in Rule 405 under the Act), other than the Preliminary Prospectus and
the Prospectus, that constitutes an offer to sell or solicitation of an offer to
buy the Notes, including but not limited to any "ABS informational and
computational materials" as defined in Item 1101(a) of Regulation AB under the
Act, unless such Underwriter has obtained the prior written approval of the Bank
and the Issuer; provided, however, that each Underwriter may prepare and convey
to one or more of its potential investors one or more "written communications"
(as defined in Rule 405 under the Act) containing no more than the following:
information contemplated by Rule 134 under the Act and included or to be
included in the Preliminary Prospectus or the Prospectus, as well as a column or
other entry showing the status of the subscriptions for the Notes and/or
expected pricing parameters of the Notes (each such written communication, an
"Underwriter Free Writing Prospectus").
(b) Each Underwriter severally represents, warrants and agrees
with the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it
will not, as of the date such Underwriter Free Writing Prospectus was
delivered to any prospective purchaser of Notes, include any untrue
statement of a material fact or omit any material fact necessary to make
the statements contained therein, in light of the circumstances under which
they were made, not misleading; provided, however, that no Underwriter
makes such representation, warranty or agreement to the extent such
misstatements or omissions were the result of any inaccurate information
which was included in the Preliminary Prospectus, the Prospectus or any
written information furnished to the related Underwriter by the Issuer or
the Bank expressly for use therein, which information was not corrected by
information subsequently provided by the Issuer or the Bank to the related
Underwriter prior to the time of use of such Underwriter Free Writing
Prospectus;
(ii) each Underwriter Free Writing Prospectus prepared by it
shall contain a legend substantially in the form of and in compliance with
Rule
26
433(c)(2)(i) of the Act, and shall otherwise conform to any requirements
for "free writing prospectuses" under the Act;
(iii) each Underwriter Free Writing Prospectus prepared by
it shall be delivered to the Issuer and the Bank no later than the time of
first use and, unless otherwise agreed to by the Issuer and the Bank and
the related Underwriter, such delivery shall occur no later than the close
of business for the Bank (Eastern Time) on the date of first use; provided,
however, if the date of first use is not a Business Day, such delivery
shall occur no later than the close of business for the Bank (Eastern Time)
on the first Business Day preceding such date of first use.
18. Each Underwriter, severally, represents that it will not, at any
time that such Underwriter is acting as an "underwriter" (as defined in Section
2(a)(11) of the Act) with respect to the Notes, transfer, deposit or otherwise
convey any Notes into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or that
represents interests in, such Notes without the prior written consent of the
Bank.
19. Each Underwriter, severally, represents and agrees (i) that it did
not enter into any contract of sale for any Notes prior to the Time of Sale and
(ii) that it will, at any time that such Underwriter is acting as an
"underwriter" (as defined in Section 2(a)(11) of the Act) with respect to the
Notes, convey to each investor to whom Notes are sold by it during the period
prior to the filing of the final Prospectus (as notified to the Underwriters by
the Bank), at or prior to the applicable time of any such contract of sale with
respect to such investor, the Preliminary Prospectus.
20. Each Underwriter, severally, represents and agrees that it has not
and will not, directly or indirectly, offer, sell or deliver any of the Notes or
distribute the Prospectus or any other offering materials relating to the Notes
in or from any jurisdiction except under circumstances that will, to the best of
its knowledge and belief, result in compliance by it with any applicable laws
and regulations thereof and that will, to the best of its knowledge and belief,
not impose any obligations on the Bank or the Issuer except as set forth herein.
21. This Agreement shall become effective upon its execution and
delivery.
22. The Bank and the Issuer acknowledge and agree that (i) the
transaction contemplated by this Agreement is an arm's-length commercial
transaction between the Bank and the Issuer, on the one hand, and the each of
the Underwriters, on the other, (ii) in connection therewith with respect to all
aspects of the transaction contemplated herein, each Underwriter is acting as a
principal and not the agent or fiduciary of the Bank and the Issuer and the Bank
hereby expressly disclaim any fiduciary relationship with respect thereto, and
(iii) none of the Underwriters has assumed an advisory responsibility in favor
of the Bank or the Issuer with respect to the transaction contemplated hereby or
the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Bank or the Issuer on other matters) or any
other obligation to the Bank or the Issuer except the obligations expressly set
forth in this Agreement.
27
23. This Agreement shall inure to the benefit of and be binding upon
the Bank, the Issuer, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Notes from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
28
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Bank, the Issuer and the
Underwriters in accordance with its terms.
Very truly yours,
NATIONAL CITY BANK,
as Originator, Beneficiary and Seller
By:
------------------------------------
Name: [________________________________]
Title: [_______________________________]
NATIONAL CITY CREDIT CARD MASTER NOTE
TRUST,
as Issuer
By: National City Bank,
not in its individual
capacity but solely as Administrator
on behalf of the Issuer
By:
------------------------------------
Name: [________________________________]
Title: [_______________________________]
[Signature Page to Series [_] Underwriting Agreement]
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written.
[_______________],
As Underwriter and as the Representative
of the several Underwriters named on Schedule A hereto
By:
---------------------------------
Name: [_____________________________]
Title:[_____________________________]
[Signature Page to Series [_] Underwriting Agreement]
SCHEDULE A
Class A Notes
Principal Amount of
Class A Underwriters Class A Notes
-------------------- -------------------
[_______________] $[_______________]
[_______________] $[_______________]
[_______________] $[_______________]
Total $[_______________]
Class B Notes
Principal Amount of
Class B Underwriters Class B Notes
-------------------- -------------------
[_______________] $[_______________]
Total $[_______________]
Class C Notes
Principal Amount of
Class C Underwriters Class C Notes
-------------------- -------------------
[_______________] $[_______________]
Total $[_______________]
