EXHIBIT 1.1
DRAFT 10/26/96
CITICORP SECURITIES, INC.
CHASE SECURITIES INC.
BRIDGESTONE/FIRESTONE MASTER TRUST
$200,000,000 CLASS A ASSET BACKED CERTIFICATES, SERIES 1996-1
$ 28,205,129 CLASS B ASSET BACKED CERTIFICATES, SERIES 1996-1
UNDERWRITING AGREEMENT
November __, 1996
Citicorp Securities, Inc.,
as Underwriter
399 Park Avenue
New York, New York 10043
Chase Securities Inc.,
as Underwriter
270 Park Avenue
New York, New York 10017-2070
Ladies and Gentlemen:
Firestone Retail Credit Corporation (the "Transferor"), on behalf of
Bridgestone/Firestone Master Trust (the "Trust"), has filed a Registration
Statement relating to the issuance and sale of Bridgestone/Firestone Master
Trust Asset Backed Certificates, Series 1996-1, Class A and Class B (the
"Offered Certificates"), having the principal amounts set forth above. The
Bridgestone/ Firestone Master Trust, Series 1996-1, Collateral Interest (the
"Collateral Interest") and Subordinated Transferor Certificate (the "Other
Interests") will also be issued but will not be offered hereby. The Offered
Certificates and the Other Interests are collectively known as the Series
1996-1 Certificates.
The Transferor, as purchaser, and Credit First National Association
("CFNA"), as originator and seller, entered into a Purchase and Sale
Agreement and several amendments thereto (the "Original Purchase Agreement")
with Bridgestone/Firestone, Inc. ("Bridgestone/Firestone"). Pursuant to the
Original Purchase Agreement, CFNA sold to the Transferor all of its right,
title and interest in and to all Receivables existing as of the date of such
Original Purchase Agreement and agreed to sell all of its
right, title and interest in and to all future Receivables created from time
to time until the Final Trust Termination Date. The Transferor in turn
transferred the Receivables to the Trust pursuant to a Pooling and Servicing
Agreement, dated November 1, 1992 (the "Original Pooling Agreement"), by and
among the Transferor, Bridgestone/Firestone, as servicer, and The Fuji Bank
and Trust Company, as trustee (the "Trustee").
In connection with the issuance of the Series 1996-1 Certificates, the
Transferor, CFNA and Bridgestone/Firestone will enter into a Restated
Purchase and Sale Agreement, dated as of October ___, 1996 (the "Purchase
Agreement"). The Series 1996-1 Certificates will be issued pursuant to a
Restated and Amended Pooling and Servicing Agreement, dated October ___, 1996
(the "PSA") and a Series 1996-1 Series Supplement, dated as of October ___,
1996 (the "Supplement"), each by and among the Transferor,
Bridgestone/Firestone and the Trustee. The PSA and the Supplement are
collectively referred to as the "Pooling and Servicing Agreement."
The Series 1996-1 Certificates are entitled to the benefit of two
letters of credit for the benefit of the holders of the Series 1996-1
Certificates and of other series of certificates issued by the Trust (an
"Enhancement"). With respect to such Enhancement, the Transferor and
Bridgestone/Firestone has entered into an agreement, as amended (the
"Enhancement Agreement") by and between the Transferor, Bridgestone/Firestone
and The Sumitomo Bank, Limited acting through its New York Branch (the
"Enhancement Provider").
In connection with the issuance of the Series 1996-1 Certificates, the
Collateral Interest will be sold to the Collateral Interest Holder pursuant
to a Loan Agreement, dated as of the Closing Date (the "Loan Agreement"), by
and among the Transferor, the Servicer, the Trustee and the Collateral
Interest Holder.
Upon the issuance of the Series 1996-1 Certificates, the Trust will
transfer the Series 1996-1 Certificates to the Transferor. The Transferor
proposes to sell the Offered Certificates to Citicorp Securities, Inc. and
Chase Securities Inc. (the "Underwriters"). The Series 1996-1 Certificates
will represent an undivided interest in certain assets of the Trust and the
Offered Certificates will be sold pursuant to this Agreement.
Capitalized terms used herein without definition shall have the meanings
set forth in the Pooling and Servicing Agreement.
Section 1. Representations and Warranties of the Transferor and
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Bridgestone/Firestone. (a) The Transferor represents and warrants to, and
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agrees with, the Underwriters as set forth in this Section 1(a). Certain
terms used in this Section 1 are defined in paragraph (i) below.
(i) The Transferor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (Registration No.
333-07185) on Form S-1 under the Securities Act of 1933, as amended (the
"Act"), including a related preliminary prospectus, for registration
under the Act of the Offered Certificates. The Transferor may have
filed one or more amendments to such registration statement, including
the related preliminary prospectus, each of which amendments has
previously been furnished to you. The Transferor will next file with
the Commission either (A) prior to the effectiveness of such
registration statement, a further amendment thereto (including the form
of final prospectus) or (B) after the effectiveness of such registration
statement, a final prospectus in accordance with Rules 430A and
424(b)(1) or (4) under the Act. In the case of clause (B), the
Transferor has included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Prospectus with respect to issuance, offering and sale of the Offered
Certificates. As filed, such amendment and form of final prospectus
shall include all Rule 430A Information, together with all other such
required information with respect to the issuance, offering and sale of
the Offered Certificates and, except to the extent the Underwriters
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained
in the latest preliminary prospectus that has previously been furnished
to you) as the Transferor has advised you, prior to the Execution Time,
will be included or made therein.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred to in
the preceding paragraph and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information. "Prospectus" shall mean the prospectus relating to the Offered
Certificates that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
prospectus relating to the Offered Certificates included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to in
the preceding paragraph and any registration statement required to be filed
under the Act or rules thereunder, including incorporated documents, exhibits
and financial statements, in the form in which it has or shall become
effective and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended. Such term shall include Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. "Rule 430A Information" means information with
respect to the Offered Certificates and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A.
(ii) On the Effective Date, the Registration Statement did or will
comply in all material respects with the applicable requirements of the
Act and the rules thereunder; on the Effective Date and when the
Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date, the Prospectus (as amended and together with
any supplements thereto) will comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact and did not and will not omit to
state any material fact therein not misleading; and, on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Prospectus (as amended and together with any
supplements thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Transferor makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectus (or any supplements thereto) in reliance upon and in
conformity with information furnished in writing to the Transferor by or
on behalf of the Underwriters specifically for use in connection with
the preparation of the Registration Statement or the Prospectus (or any
supplements thereto).
(iii) As of the Closing Date, the representations and warranties of the
Transferor in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(iv) The Transferor is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Massachusetts, has all requisite power and authority (corporate
and other) to own its properties and conduct its business as presently
conducted and to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby.
(v) The execution, delivery and performance by the Transferor of the
Pooling and Servicing Agreement, the Purchase Agreement, the
Participation Agreement, the Loan Agreement and the issuance of the
Series 1996-1 Certificates and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by
all necessary actions or proceedings and are legal, valid and binding
obligations of the Transferor, enforceable against the Transferor except
(y) the enforceability thereof may be subject to bankruptcy, fraudulent
transfer, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect related to creditors' rights generally and
(z) as to enforceability, to general principles of equity (whether
considered in a suit at law or in equity).
(vi) This Agreement has been duly authorized, executed and delivered by
the Transferor and constitutes a legal, valid and binding agreement of
the Transferor, enforceable against the Transferor in accordance with
its terms, subject (x) to applicable bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or other similar laws now
and hereafter in effect affecting creditors' rights generally, (y) as to
enforceability, to general principles of equity (whether considered in a
suit at law or in equity), and (z) as to enforceability may be limited
under certain circumstances with respect to provisions indemnifying a
party against liability where such indemnification is contrary to public
policy under applicable securities laws.
(vii) The performance by the Transferor of all of the provisions of its
obligations under the Pooling and Servicing Agreement, the Purchase
Agreement, the Participation Agreement, the Loan Agreement, the
Enhancement Agreement and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by
which it is bound or any order, decree or regulation applicable to the
Transferor of any Federal or state court, regulatory board or body or
administrative agency having jurisdiction over the Transferor or its
property, nor will any such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the
Transferor.
(viii) On the Closing Date, with respect to Receivables created on or
prior to, and outstanding on, such date the Transferor (i) had good and
marketable title to the Receivables transferred by it to the Trustee
pursuant to the Original Pooling Agreement, free and clear of any Lien,
except to the extent permitted in the Original Pooling Agreement, (ii)
did not assign to any person any of its right, title or interest in such
Receivables or in the Original Pooling Agreement, except (x) for its
right, title and interest heretofore transferred to the Trustee pursuant
to the Original Pooling Agreement and (y) for the rights transferred to
Bridgestone/Firestone pursuant to the Participation Agreement and (iii)
had the power and authority to transfer the Receivables to the Trust,
and upon execution and delivery of the Original Pooling Agreement by the
Trustee, the Trust obtained good and marketable title to, or a perfected
first priority security interest in, the Receivables, free of Liens
other than any Lien permitted under the Original Pooling Agreement. On
any date on which any Receivables are created and transferred to the
Transferor and transferred by the Transferor to the Trustee after the
Closing Date, the Transferor shall be deemed to represent and warrant
that it (i) will have good and marketable title to the Receivables being
transferred by it to the Trustee pursuant to the Pooling and Servicing
Agreement, free and clear of any Lien, except to the extent permitted in
the Pooling and Servicing Agreement, (ii) will not have assigned to any
person any of its right, title or interest in such Receivables or in the
Pooling and Servicing Agreement, except for its right, title and
interest heretofore transferred to the Trustee pursuant to the Pooling
and Servicing Agreement and except for the rights transferred to
Bridgestone/Firestone pursuant to the Participation Agreement and (iii)
will have the power and authority to transfer such Receivables to the
Trust, and the Trust will have good and marketable title to, or a
perfected first priority security interest in, the Receivables, free of
Liens other than any Lien permitted under the Pooling and Servicing
Agreement.
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the execution, delivery or performance of this Agreement,
the Pooling and Servicing Agreement, the Purchase Agreement, the Loan
Agreement and the Series 1996-1 Certificates by the Transferor or the
consummation by the Transferor of the transactions contemplated hereby
and thereby, except such as have been obtained under the Act and such as
may be required under the Securities Exchange Act of 1934 ("Exchange
Act") and state securities or blue sky laws in connection with the
purchase and distribution of the Offered Certificates by the
Underwriters.
(x) There is no action, suit or proceeding pending against or, to the
knowledge of the Transferor, threatened against or affecting, the
Transferor before any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which (a) is
reasonably likely to materially adversely affect the business, financial
position or results of operations of the Transferor, or (b) which is
reasonably likely to result in any material provisions of this
Agreement, the Pooling and Servicing Agreement, the Purchase Agreement,
the Loan Agreement, the Enhancement Agreement or the Series 1996-1
Certificates becoming invalid.
(xi) The Transferor has authorized the purchase and conveyance of the
Receivables to the Trust, and the Transferor has authorized the sale of
the Offered Certificates to the Underwriters.
(xii) Any taxes, fees and other governmental charges owed by the
Transferor in connection with the execution, delivery and performance of
this Agreement, the Pooling and Servicing Agreement, the Enhancement
Agreement, the Purchase Agreement and the Loan Agreement and the Series
1996-1 Certificates shall have been paid or will be paid by the
Transferor (or by Bridgestone/Firestone on behalf of the Transferor) at
or prior to the Closing Date to the extent then due.
(xiii) The direction of the Transferor to the Trustee to authenticate
the Series 1996-1 Certificates has been duly authorized by the
Transferor, and when the Series 1996-1 Certificates have been duly and
validly executed, authenticated and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement and when the Offered
Certificates have been sold to the Underwriters as provided herein, the
Series 1996-1 Certificates will conform in all material respects to the
descriptions thereof contained in the Prospectus and will be validly
issued and outstanding and entitled to the benefits and security
provided by the Pooling and Servicing Agreement.
(xiv) This Agreement, the Pooling and Servicing Agreement, the Purchase
Agreement, the Loan Agreement, the Enhancement Agreement and the Series
1996-1 Certificates will conform in all material respects to the
descriptions thereof in the Prospectus.
(xv) Neither the Transferor nor the Trust will be subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(xvi) Except as described in or contemplated by the Prospectus,
subsequent to October __, 1996, there has not been any change in the
capital stock of the Transferor, or any material adverse change, or any
development involving a prospective material adverse change, which is
reasonably likely to materially adversely affect the ability of the
Transferor to perform its obligations under the Pooling and Servicing
Agreement, the Purchase Agreement, the Loan Agreement or this Agreement.
(b) Bridgestone/Firestone represents and warrants to, and agrees with,
the Underwriters as set forth in this Section 1(b).
(i) Bridgestone/Firestone is duly organized and validly existing as a
corporation in good standing under the laws of the State of Ohio, and
has all requisite power and authority to own its properties and conduct
its business as presently conducted and to execute, deliver and perform
this Agreement and to consummate the transactions contemplated hereby
and is duly qualified to transact business as a foreign corporation in
good standing under the laws of each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification and where the failure to be so qualified is reasonably
likely to have a material adverse effect on the ability of
Bridgestone/Firestone to perform its obligations under this Agreement,
the Pooling and Servicing Agreement, the Participation Agreement or the
Loan Agreement.
(ii) As of the Closing Date, the representations and warranties of
Bridgestone/Firestone in the Pooling and Servicing Agreement will be
true and correct.
(iii) The execution, delivery and performance by Bridgestone/Firestone
of the Pooling and Servicing Agreement, the Purchase Agreement and the
Loan Agreement and the issuance of the Series 1996-1 Certificates and
the consummation of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary action or
proceedings and are legal, valid and binding obligations of
Bridgestone/Firestone, enforceable against Bridgestone/Firestone except
(y) the enforceability thereof may be subject to bankruptcy, fraudulent
transfer, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect related to creditors' rights generally and
(z) as to enforceability, to general principles of equity (whether
considered in a suit at law or equity).
(iv) This Agreement has been duly authorized, executed and delivered by
Bridgestone/Firestone and constitutes a legal, valid and binding
agreement of Bridgestone/Firestone, enforceable against
Bridgestone/Firestone in accordance with its terms, subject (x) to
applicable bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other similar laws now and hereafter in effect affecting
creditors' rights generally, (y) as to enforceability, to general
principles of equity (whether considered in a suit at law or in equity),
and (z) as to enforceability may be limited under certain circumstances
with respect to provisions indemnifying a party against liability where
such indemnification is contrary to public policy under applicable
securities laws.
(v) The performance by Bridgestone/Firestone of all of the provisions of
its obligations under the Pooling and Servicing Agreement, the Purchase
Agreement, the Loan Agreement, the Enhancement Agreement and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any terms
or provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which Bridgestone/Firestone is a party or by which
Bridgestone/Firestone is bound or to which any of its property or assets
is subject, or any order, decree or regulation applicable to
Bridgestone/Firestone of any Federal or state court, regulatory board or
body or administrative agency having jurisdiction over
Bridgestone/Firestone or its property, nor will any such action result
in any violation of the provisions of the certificate of incorporation
or by-laws of Bridgestone/Firestone.
(vi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the execution, delivery or performance of this Agreement,
the Pooling and Servicing Agreement, the Participation Agreement, the
Loan Agreement, the Enhancement Agreement and the Certificates by
Bridgestone/Firestone or the consummation by Bridgestone/Firestone of
the transactions contemplated hereby and thereby, except such as have
been obtained under the Act and such as may be required under the
Exchange Act and state securities or blue sky laws in connection with
the purchase and distribution of the Offered Certificates by the
Underwriters.
(vii) Except as described or referred to in the Prospectus, there is no
action, suit or proceeding pending against or, to the knowledge of
Bridgestone/Firestone, threatened against or affecting, Bridgestone/
Firestone before any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which
(a) is reasonably likely to materially adversely affect the business,
financial position or results of operations of Bridgestone/
Firestone, or (b) is reasonably likely to result in any
material provisions of this Agreement, the Pooling and Servicing
Agreement, the Purchase Agreement, the Participation Agreement, the Loan
Agreement, the Enhancement Agreement or the Series 1996-1 Certificates
becoming invalid.
(viii) Any taxes, fees and other governmental charges owed by
Bridgestone/Firestone in connection with the execution, delivery and
performance of this Agreement, the Pooling and Servicing Agreement, the
Purchase Agreement, the Participation Agreement, the Loan Agreement and
the Enhancement Agreement shall have been paid or will be paid by
Bridgestone/Firestone at or prior to the Closing Date to the extent then
due.
(ix) The Series 1996-1 Certificates will be duly and validly
authorized, and when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement, will
conform in all material respects to the descriptions thereof contained
in the Prospectus and will be validly issued and outstanding and
entitled to the benefits and security provided by the Pooling and
Servicing Agreement.
(x) This Agreement, the Pooling and Servicing Agreement, the Purchase
Agreement, the Loan Agreement, the Enhancement Agreement and the Series
1996-1 Certificates will conform in all material respects to the
descriptions thereof in the Prospectus.
(xi) The Trust will not be subject to registration as an "investment
company" under the 1940 Act.
(xiv) Except as described in or contemplated by the Prospectus,
subsequent to October __, 1996, there has not been any material adverse
change, or any development involving a prospective material adverse
change, which is reasonably likely to materially adversely affect the
business, management, financial position, net worth, results of
operations or prospects of Bridgestone/Firestone.
Section 2. Purchase and Sale. Subject to the terms and conditions and
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in reliance upon the covenants, representations and warranties herein set
forth, the Transferor agrees to sell to the Underwriters, and each of the
Underwriters, severally and not jointly, agree to purchase from the
Transferor, at the purchase price described herein, the respective principal
amount of the Offered Certificates set forth opposite the name of each
Underwriter on Schedule A hereto. The purchase price for the Class A
Certificates shall be equal to _______% of the aggregate initial principal
amount thereof. The purchase price for the Class B Certificates shall be
equal to ______% of the aggregate initial principal amount thereof. There
will be added to the purchase price of the Offered Certificates an amount
equal to interest accrued thereon pursuant to the terms thereof from _______,
1996.
Section 3. Delivery and Payment. Delivery of and payment for the
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Offered Certificates shall be made at the offices of Brown & Wood LLP on
November __, 1996, or at such later date as the Underwriters shall designate,
which date and time may be postponed by agreement between the Underwriters,
the Transferor and Bridgestone/Firestone (such date and time of delivery and
payment for the Offered Certificates being hereinafter referred to as the
"Closing Date"). Delivery of the Offered Certificates shall be made against
payment by the Underwriters of the purchase price therefor to or upon the
order of the Transferor by one or more wire transfers or checks in Federal
(same day) Funds. The Offered Certificates to be so delivered will initially
be represented by one or more Offered Certificates registered in the name of
Cede & Co., as nominee for The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Offered Certificates will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Certificates representing the Offered Certificates will
be available only under limited circumstances.
Section 4. Offering by Underwriters. It is understood that you propose
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to offer the Offered Certificates for sale to the public as set forth in the
Prospectus.
Section 5. Agreements. (a) The Transferor covenants and agrees with
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the Underwriters that:
(i) The Transferor will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution
Time, to become effective. If the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Transferor will file the
Prospectus, properly completed, pursuant to Rule 424(b) within the time
period prescribed and will promptly notify the Underwriters of such
timely filing. The Transferor will promptly advise the Underwriters (A)
when the Registration Statement, and any amendment thereto, shall have
become effective, (B) when the Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b),
(C) of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for any additional
information and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threat of any proceeding for that purpose. The
Transferor will not file any amendment of the Registration Statement
or supplement to the Prospectus unless a copy of the proposed amendment
or supplement has been furnished to you a reasonable time in advance of
such filing, and it will not file any such amendment or supplement to
which the Underwriters or their counsel shall reasonably object. The
Transferor will promptly advise the Underwriters of the institution by
the Commission of any stop order proceeding with respect to the
Registration Statement and will use its reasonable
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a Prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs
as a result of which such Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to supplement such Prospectus to comply with the Act or the
rules thereunder, the Transferor promptly will prepare and file with the
Commission, subject to paragraph (i) of this Section 5, a supplement
that will correct such statement or omission or an amendment that will
effect such compliance. Consent by the Underwriters to any such
supplement or amendment shall not constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(iii) As soon as practicable, the Transferor will make generally
available to Certificateholders and to you all financial reports and
information required to be provided to Certificateholders pursuant to
the terms of the Pooling and Servicing Agreement.
(iv) The Transferor will furnish to the Underwriters and counsel for
the Underwriters, without charge, a signed copy of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriters may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Underwriters may reasonably request. If
necessary, the Transferor will furnish or cause to be furnished to you
copies of all reports on Form SR required by Rule 463 under the Act.
(v) The Transferor will arrange or cooperate in the arrangements for
the qualification of the Offered Certificates for sale under the blue
sky laws of such jurisdictions as you may designate, will maintain such
qualifications in effect so long as the Prospectus is required to be
delivered under the Act; provided that the Transferor shall not be
required to qualify as a foreign corporation in any jurisdiction or
shall not be required to consent to service of process in any
jurisdiction other than with respect to a claim arising out of or in
connection with the offering or sale of the Offered Certificates.
(vi) For so long as the Offered Certificates are outstanding, the
Transferor will furnish to you (A) as soon as practicable after the end
of each fiscal year, all documents required to be distributed to
Certificateholders or filed with the Commission and (B) as soon as
practicable after filing, such other publicly available document
concerning the Transferor filed by the Transferor with any government or
regulatory authority, as you may reasonably request. If required by
Section 12(g) of the Securities Exchange Act of 1934, the Transferor
will register the Offered Certificates under the Exchange Act within 120
days after the end of the fiscal year of the Trust during which the
offering of the Offered Certificates to the public occurred.
(vii) To the extent, if any, that any rating provided with respect to
the Offered Certificates set forth in Section 6(p) hereof is conditional
upon the furnishing of documents reasonably available to the Transferor,
the Transferor shall furnish such documents.
(b) Bridgestone/Firestone covenant and agree with the Underwriters,
with respect to the Series 1996-1 Certificates, that:
(i) Bridgestone/Firestone will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at
the Execution Time, to become effective. If the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), Bridgestone/
Firestone will cause the Prospectus to be filed, properly completed,
pursuant to Rule 424(b) within the time period prescribed and will
promptly notify the Underwriters of such timely filing.
Bridgestone/Firestone will promptly advise the Underwriters (A) when the
Registration Statement, and any amendment thereto, shall have become
effective, (B) when the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b), (C) of any
request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional
information and (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the institution or threat of any proceeding for that purpose.
Bridgestone/Firestone will not cause any amendment of the Registration
Statement or supplement to the Prospectus to be filed unless a copy has
been furnished to you a reasonable time in advance of such filing, and
will not file any such amendment or supplement to which the Underwriters
or their counsel shall reasonably object. Bridgestone/Firestone will
promptly advise the Underwriters of the institution by the Commission of
any stop order proceeding with respect to the Registration Statement of
which it has knowledge and use its reasonable efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a Prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs
with respect to the Series 1996-1 Certificates, as a result of which
such Prospectus as then supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to supplement
such Prospectus to comply with the Act or the rules thereunder,
Bridgestone/Firestone promptly will prepare and use its best efforts to
cause to be filed with the Commission, subject to paragraph (i) of this
Section 5(b), a supplement that will correct such statement or omission
or an amendment that will effect such compliance.
(iii) If the Transferor has not done so, Bridgestone/Firestone will
furnish to the Underwriters and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by the Underwriters
may be required by the Act, as many copies of each Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request. If necessary,
Bridgestone/Firestone will furnish or cause to be furnished to you
copies of all reports on Form SR required by Rule 463 under the Act.
(iv) To the extent, if any, that any rating provided with respect to the
Offered Certificates set forth in Section 6(p) hereof is conditional
upon the furnishing of documents reasonably available to
Bridgestone/Firestone, Bridgestone/Firestone shall furnish such
documents.
Section 6. Conditions of Underwriters' Obligation. The obligation of
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the Underwriters to purchase and pay for the Offered Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Transferor and Bridgestone/Firestone contained herein as of
the Execution Time and the Closing Date, to the performance by the Transferor
and Bridgestone/Firestone of their obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00
p.m., New York City time, on the date of determination of the public offering
price, if such determination occurs at or prior to 3:00 p.m., New York City
time, on such date or (ii) 12:00 noon on the business day following the day
on which the public offering price was determined, if such determination
occurs after 3:00 p.m., New York City time, on such date; if filing of the
Prospectus, or any supplements thereto, is required pursuant to Rule 424(b),
the Prospectus, and any supplements thereto, shall have been filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Transferor or Bridgestone/Firestone, threatened by the
Commission.
(b) The Transferor shall have delivered to you a certificate, dated the
Closing Date, signed by an authorized signatory to the effect that the signer
of such certificate has carefully examined the Underwriting Agreement, the
Pooling and Servicing Agreement, the Purchase Agreement, the Participation
Agreement, the Loan Agreement, the Enhancement Agreement and any other
documents to which the Transferor is a party, the Prospectus (and any
supplements thereto) and the Registration Statement and that:
(i) the representations and warranties of the Transferor in this
Agreement are true and correct at and as of the Closing Date as if made
on and as of the Closing Date (except to the extent they expressly
relate to an earlier date, in which case the representations and
warranties of the Transferor are true and correct as of such earlier
date);
(ii) the Transferor has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied under this
Agreement at or prior to the Closing Date; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the signer, threatened by the
Commission.
(c) Bridgestone/Firestone shall have delivered to you a certificate,
dated the Closing Date, signed by an authorized signatory to the effect that
the signer of such certificate has carefully examined the Underwriting
Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the
Loan Agreement, the Enhancement Agreement and any other documents to which it
is a party, the Prospectus (and any supplements thereto) and the Registration
Statement and that:
(i) the representations and warranties of Bridgestone/Firestone in this
Agreement are true and correct at and as of the Closing Date as if made
on and as of the Closing Date (except to the extent they expressly
relate to an earlier date, in which case the representations and
warranties of Bridgestone/Firestone are true and correct as of such
earlier date);
(ii) Bridgestone/Firestone has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
under this Agreement at or prior to the Closing Date; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the signer, threatened by the
Commission.
(d) CFNA shall have delivered to you a certificate, dated the Closing
Date, signed by an authorized signatory to the effect that the signer of such
certificate has carefully examined the Underwriting Agreement and the
Purchase Agreement and any other documents to which it is a party, the
Prospectus (and any supplements thereto) and the Registration Statement and
that the representations and warranties of CFNA in the Purchase Agreement are
true and correct at and as of the Closing Date as if made on and as of the
Closing Date (except to the extent they expressly relate to an earlier date,
in which case the representations and warranties of CFNA are true and correct
as of such earlier date);
(e) The Underwriters shall have received an opinion of Stroock &
Stroock & Lavan, special counsel to Bridgestone/Firestone, dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement, the Purchase
Agreement, the Participation Agreement, the Loan Agreement and this
Agreement is a valid and binding obligation of the Transferor and
Bridgestone/Firestone enforceable against each of the Transferor and
Bridgestone/Firestone in accordance with its terms, subject to
(I) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and court decisions with respect thereto;
(II) to the understanding that no opinion is expressed as to the
application of equitable principles in any proceeding, whether at law or
in equity; (III) to limitations or public policy under applicable
securities laws as to rights of indemnity and contributions thereunder.
(ii) The Series 1996-1 Certificates, when executed and authenticated as
specified in the Pooling and Servicing Agreement and delivered and paid
for pursuant to this Agreement, will be validly issued and entitled to
the benefits of the Pooling and Servicing Agreement.
(iii) The Pooling and Servicing Agreement creates a valid security
interest in favor of the Trustee in the Receivables and other property
included in the Trust on the date hereof, which security interest of the
Trustee in the Receivables and the Trust will be perfected and will
constitute a first perfected security interest upon the filing of the
UCC-1 financing statement (the "Financing Statement") in respect of the
Receivables in the offices of the (Secretary of State) of Massachusetts
(and the timely filing of continuation statements with respect to such
Financing Statement); provided, however, that such counsel may take
customary exceptions acceptable to you.
(iv) No consent, approval, authorization or order of, or filing with,
any New York (or Massachusetts) governmental agency or body having
jurisdiction over the Transferor is required for the valid
authorization, issuance and sale of the Series 1996-1 Certificates,
except for (a) filings of Uniform Commercial Code financing statements
with respect to the transfer of the Receivables from the Transferor to
the Trust pursuant to the Pooling and Servicing Agreement; (b) such
other consents, approvals, authorizations, order or filings as have been
obtained, and (c) such consents, approvals, authorizations, order or
filings as may be required under the securities or blue sky laws of any
jurisdiction, as to which no opinion need be expressed.
(v) The Registration Statement has become effective under the Act. To
the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Act and no
proceedings therefore have been initiated or threatened by the
Commission.
(vi) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
(vii) The Trust created by the Pooling and Servicing Agreement is not,
and will not solely as a result of the offer and sale of the Offered
Certificates as contemplated in the Prospectus and in this Agreement
become, an "investment company" as such term is defined in the 1940 Act.
(viii) The statements in the Prospectus under the caption "Description
of the Offered Certificates and the Agreement," insofar as such
statements purport to summarize certain provisions of the Offered
Certificates and the Pooling and Servicing Agreement, fairly summarize
such provisions.
(ix) The Registration Statement and the Prospectus (other than the
financial statements and other financial, statistical and numerical
information included or incorporated by reference therein, in each case
as to which no opinion need be rendered) as of their respective
effective or issue dates, complied as to form in all material respects
with the requirements of the Act and the Regulations thereunder.
Such counsel shall deliver to you such additional opinions addressing
the transfer of the Receivables by the Transferor to the Trustee of its
right, title and interest in and to the Receivables and other property
included in the Trust on the Closing Date as may be required by each Rating
Agency rating the Series 1996-1 Certificates.
Such counsel shall state that it has participated in conferences with
representatives of Bridgestone/Firestone, CFNA and with your representatives,
at which the contents of the Registration Statement, the Prospectus and
related matters were discussed and, although it is no passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except
to the extent set forth in paragraph (viii) above), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of Bridgestone/Firestone and CFNA), no
facts have come to its attention which would lead it to believe that the
Registration Statement at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, on the date hereof, contains any untrue statement of
a material fact necessary or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need express no view with respect to the financial statements and
other financial and statistical information contained in or incorporated by
reference into the Registration Statement or the Prospectus.
(f) the Underwriters shall receive an opinion of Saul Solomon, General
Counsel to Bridgestone/Firestone dated the Closing Date and satisfactory in
form and in substance to the Underwriters and counsel to the Underwriters
substantially to the effect that:
(i) Bridgestone/Firestone has been duly organized and is validly
existing as a corporation in good standing under the laws of the state
of Ohio.
(ii) Bridgestone/Firestone has the corporate power and corporate
authority to carry on its business as described in the Prospectus and to
own and operate its properties in connection therewith, and had at all
relevant times and now has, the power, authority and legal right to
service the Receivables.
(iii) Bridgestone/Firestone is qualified to do business, and is in good
standing, as a foreign corporation in the State of Tennessee.
(iv) Each of the Pooling and Servicing Agreement, the Participation
Agreement, the Purchase Agreement and the Loan Agreement has been duly
authorized, executed and delivered by Bridgestone/ Firestone.
(v) The execution and delivery by Bridgestone/Firestone of the Pooling
and Servicing Agreement, the Participation Agreement, the Purchase
Agreement and the Loan Agreement and the signing of the Registration
Statement are within the corporate power of Bridgestone/Firestone and
have been duly authorized by all necessary corporate action on the part
of Bridgestone/Firestone; neither the issue and sale of the Series 1996-
1 Certificates nor the consummation of the transactions contemplated
herein nor the fulfillment of the terms hereof will, to the best of my
knowledge, conflict with or constitute a breach of, or default under,
or, other than the security interest created by the Purchase Agreement
or the Pooling and Servicing Agreement, result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of Bridgestone/ Firestone pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instruments to
which Bridgestone/Firestone is a party or by which it is bound or to
which the property or assets of Bridgestone/ Firestone are subject
(which contracts, indentures, mortgages, loan agreements, notes, leases
and other such instruments have been identified by Bridgestone/
Firestone to such counsel), nor will such action result in any violation
of the provisions of the certificate of incorporation or by-laws of
Bridgestone/Firestone or, to the best of such counsel's knowledge, any
administrative or court decree.
Such counsel shall also state that in connection with the preparation of
Registration Statement No. 33-07185 (the "Registration Statement") and the
Prospectus (the "Prospectus") contained therein, he has participated in
conferences with representatives of CFNA, the Underwriter and counsel to the
Underwriter at which the contents of the Registration Statement and the
Prospectus were discussed. In such discussion, nothing has come to my
attention which would lead me to believe that either the Registration
Statement, as of its effective date or the Prospectus, as of the date hereof,
contained an 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 have made, not misleading. In making the
above statements, I assume no responsibility for factual accuracy,
completeness or fairness of the statements contained in the Registration
Statement or in the Prospectus and I have made no independent check or
verification for the purpose of expressing such statements. Furthermore, I
am not expressing any view whatsoever with respect to the financial and
statistical data included in the Registration Statement and Prospectus.
(g) The Underwriters shall receive an opinion of Ropes & Grey, counsel
to the Transferor dated the Closing Date and satisfactory in form an in
substances to the Underwriters and counsel to the Underwriters substantially
to the effect that:
(i) The Transferor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Massachusetts.
(ii) The Transferor has all the requisite corporate power and authority
to carry on its business as described in the Prospectus and to own and
operate its properties in connection therewith, and had at all relevant
times and now has, the power and authority to acquire and own the
Receivables.
(iii) Each of the Pooling and Servicing Agreement, the Purchase
Agreement, the Participation Agreement, the Loan Agreement and this
Agreement has been duly authorized, executed and delivered by the
Transferor.
(iv) The execution and delivery by the Transferor of this Agreement,
the Pooling and Servicing Agreement, the Participation Agreement, the
Purchase Agreement and the Loan Agreement and the signing of the
Registration Statement by the Transferor are within the corporate
power of the Transferor and have been duly authorized by all necessary
corporate action on the part of the Transferor; and neither the
issue and sale of the Series 1996-1 Certificates, nor the
consummation of the transactions contemplated herein nor the fulfillment
of the terms hereof will, to the best of such counsel's knowledge,
conflict with or constitute a breach of, or default under, or other than
the security interest created by the Purchase Agreement or the Pooling
and Servicing Agreement, result in the crease or imposition of any lien,
charge or encumbrance upon any property or assets of the Transferor
pursuant to any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Transferor is bound or to which
the property or assets of the Transferor are subject (which contracts,
indentures, mortgages, loan agreements, notes, leases and other such
instruments have been identified by the Transferor to such counsel),
nor will such action result in any violation of the provisions of
the certificate of incorporation or by-laws of the Transferor
or, to the best of such counsel's knowledge, any administrative or court
decree.
(v) The Series 1996-1 Certificates have been duly authorized by the
Transferor.
(h) The Underwriters shall receive an opinion of (counsel to CFNA),
dated the Closing Date and satisfactory in form and in substance to the
Underwriters and counsel to the Underwriters, substantially to the effect
that:
(i) CFNA has been duly organized and is validly existing as a (national
banking association).
(ii) CFNA has the corporate power and corporate authority to carry on
its business as described in the Prospectus and to own and operate its
properties in connection therewith, and had at all relevant times and
now has, the power, authority and legal right to create and own the
Receivables.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by CFNA, and is a valid and binding obligation of CFNA
enforceable against CFNA in accordance with its terms, except for (a)
filings of Uniform Commercial Code financing statements with respect to
the transfer of the Receivables from CFNA to the Transferor pursuant to
the Purchase Agreement; (b) such other consents, approvals,
authorizations, order or filings as have been obtained, and (c) such
consents, approvals, authorizations, order or filings as may be required
under the securities or blue sky laws of any jurisdiction, as to which
no opinion need be expressed.
(iv) The execution and delivery by CFNA of the Purchase Agreement is
within the corporate power of CFNA and have been duly authorized by all
necessary corporate action on the part of CFNA; will not, to the best of
our knowledge, conflict with or constitute a breach of, or default
under, or, other than the security interest created by the Purchase
Agreement result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of CFNA pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or other
instruments to which CFNA is a party or by which it is bound or to which
the property or assets of CFNA are subject (which such contracts,
indentures, mortgages, loan agreements, notes, leases and other such
instruments have been identified by CFNA to us), nor will such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of CFNA or, to the best of such counsel's
knowledge, any administrative or court decree.
Such counsel shall deliver to you such additional opinions addressing
the transfers of the Receivables by CFNA to the Transferor of its right,
title and interest and to the Receivables and other property transferred to
the Transferor on the Closing Date as may be required by each Rating Agency
rating the Series 1996-1 Certificates.
(i) The Underwriters shall have received from Brown & Wood LLP, in its
capacity as counsel for the Underwriters, a favorable opinion dated the
Closing Date, with respect to the issuance and sale of the Offered
Certificates, the Pooling and Servicing Agreement, the Registration
Statement, the Prospectus and such other related matters as the Underwriters
may reasonably require, including:
(i) The Registration Statement has become effective under the Act and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened; and the
Registration Statement and the Prospectus (other than financial,
numerical and statistical information contained therein as to which such
counsel need express no opinion), at the time the Registration Statement
became effective, complied as to form in all material respects with the
applicable requirements of the Act and the rules thereunder.
(ii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(iii) The Trust is not now, and following the sale of the Series 1996-1
Certificates to the Underwriters will not be, required to be registered
under the Investment Company Act of 1940, as amended.
In giving its opinion, Brown & Wood LLP may rely as to matters involving
the application of laws of any jurisdiction other than the State of New York,
the United States or the General Corporation Law of the State of Delaware, to
the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable, and as to matters of
fact, to the extent deemed proper and as stated therein on certificates of
responsible officers of the Trust, Transferor, Bridgestone/Firestone,
Citicorp and public officials. References to the Prospectus in this
paragraph (h) include any supplements thereto.
(j) The Underwriters shall have received an opinion or opinions of
_________________, special counsel for the Transferor, dated the Closing
Date, in form and substance satisfactory to the Underwriters and their
counsel, with respect to certain matters relating to the transfer of the
Receivables to the Trust, with respect to the perfection of the Trust's
interest in the Receivables and certain other matters relating to the
applicable Enhancement, if any, in a form previously approved by you and your
counsel. In addition, the Underwriters shall have received a reliance letter
with respect to any opinion that the Transferor is required to deliver to the
Rating Agency.
(k) The Underwriters shall have received an opinion from Brown & Wood
LLP, special tax counsel to the Transferor, with respect to the Federal
income tax treatment of the Certificates in form and substance satisfactory
to the Underwriters. The Underwriters shall have also received an opinion of
Jones, Day, Reavis & Pogue, special Ohio tax counsel to the Transferor, with
respect to treatment of the Certificates under the Ohio corporation franchise
tax measured by net income in form and substance satisfactory to the
Underwriters.
(l) The Underwriters, Transferor and Bridgestone/Firestone shall have
received an opinion of Shearman and Sterling, counsel to the Trustee, dated
the Closing Date and satisfactory in form and substance to the Underwriters
and counsel for the Underwriters and to the Transferor and
Bridgestone/Firestone and their counsel, to the effect that:
(i) The Trustee has been duly incorporated and is validly existing as a
banking corporation under the laws of the State of New York, and has the
power and authority (corporate and other) to enter into, and to take all
action required of it under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and each of the documents
comprising the Pooling and Servicing Agreement constitutes a legal,
valid and binding agreement of the Trustee, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, liquidation,
reorganization, moratorium or other similar laws affecting the enforce-
ment of rights of creditors against the Trustee generally, as such laws
would apply in the event of bankruptcy, insolvency, fraudulent transfer,
liquidation or reorganization or any moratorium or similar occurrence
affecting the Trustee, and the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Series 1996-1 Certificates have been duly authenticated and
delivered by the Trustee.
(iv) The execution and delivery of the Pooling and Servicing Agreement
by the Trustee and the performance by the Trustee of the terms of each
do not conflict with or result in a violation of (A) any law of the
United States of America or the State of New York or any regulation
governing the banking or trust powers of the Trustee, or (B) the
Organization Certificate or by-laws of the 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
Trustee is required in connection with its execution and delivery of the
Pooling and Servicing Agreement or the performance by the Trustee of the
terms of the Pooling and Servicing Agreement.
(m) The applicable rating agencies shall have affirmed the rating of
the Bridgestone/Firestone Master Trust, Series 1992-B Certificates.
(n) The Class A Certificates shall be rated at least "AAA" by Standard
& Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.
("S&P") and "Aaa" by Moody's Investors Service, Inc. ("Moody's"). The Class
B Certificates shall be rated at least "A" by S&P and "A3" by Moody's.
Neither S&P nor Moody's shall have placed the Offered Certificates under
review with possible negative implications.
(o) You shall have received from Deloitte & Touche or other independent
certified public accountants acceptable to you, a letter, dated as of the
date hereof and as of the applicable Closing Date, delivered at such times,
in the form heretofore agreed to.
(p) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been
any change, or any development involving a prospective change, in or
affecting the business or properties of the Trust, the Transferor or
Bridgestone/Firestone, the effect of which, in any case referred to above,
taken as a whole from that set forth in or contemplated by the Registration
Statement or the Prospectus (as amended to the date hereof), which is, in the
reasonable judgment of the Underwriters (after consultation with the
Transferor and Bridgestone/Firestone), so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the delivery of
the Offered Certificates as contemplated by the Registration Statement and
the Prospectus (and any supplements thereto).
(q) The Underwriters and counsel for the Underwriters shall have
received such information, opinions, certificates and documents as the
Underwriters or counsel for the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions or certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all your obligations hereunder may be canceled at, or at any
time prior to, the Closing Date by you. Notice of such cancellation shall be
given to the Trust, the Transferor and Bridgestone/Firestone in writing or by
telephone or telegraph confirmed in writing.
Section 7. Expenses; Reimbursement of Expenses. (a) The Transferor
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will pay all expenses incidental to the performance of the obligations under
this Agreement, including, without limitation, (i) the filing of the
Registration Statement and all amendments thereto, (ii) the printing and
delivery to the Underwriters, in such quantities as you may reasonably
request, of copies of this Agreement, (iii) any fees charged by any rating
agency for the rating of the Series 1996-1 Certificates, (iv) any expenses
(not including fees and disbursements of counsel) incurred by the
Underwriters in connection with qualification of the Series 1996-1
Certificates for sale under the laws of such jurisdictions as the
Underwriters designates, (v) the fees and expenses of the Trustee and its
counsel and (vi) the fees and expenses of Brown & Wood LLP, as special
federal income tax counsel to the Transferor (it being understood that,
except as provided in Sections 7 and 8 hereof, the Underwriters will pay
its own expenses, the fees and expenses of Brown & Wood LLP in its role as
counsel for the Underwriters).
(b) If the sale of the Offered Certificates provided for herein is not
consummated because any condition to your obligations set forth in Section 6
hereof is not satisfied, or because of any refusal, inability or failure on
the part of the Transferor or Bridgestone/Firestone to perform any agreement
herein or to comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Transferor and Bridgestone/Firestone,
jointly and severally, will reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Series 1996-1 Certificates.
Section 8. Indemnification and Contribution. (a) The Transferor and
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Bridgestone/Firestone, jointly and severally, agree to indemnify and hold
harmless the Underwriters and each person who controls the Underwriters
within the meaning of the Act against any and all losses, claims, damages or
liabilities to which it may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact, with respect to the Transferor
and Bridgestone/Firestone contained in the Registration Statement for the
registration of the Offered Certificates as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agree to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) neither the Transferor, nor
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Bridgestone/Firestone will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Transferor or Bridgestone/Firestone by or on behalf of the
Underwriters specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to any untrue statement or omission in
any Preliminary Prospectus or the Prospectus shall not inure to the benefit
of the Underwriters (or any person controlling any of the Underwriters) from
whom the person asserting any such loss, claim, damage or liability purchased
the Offered Certificates which is the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as supplemented),
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of the Offered Certificates to such person in any
case where such delivery is required by the Act and the untrue statement
or omission of a material fact contained in any Preliminary Prospectus
was corrected in the Prospectus (or the Prospectus as supplemented). This
indemnity agreement is independent of any liability which the Transferor
or Bridgestone/Firestone may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Transferor or Bridgestone/Firestone, each of their respective directors,
each of the officers who signs the Registration Statement, and each person
who controls either the Transferor or Bridgestone/Firestone within the
meaning of the Act, to the same extent as the foregoing indemnities from the
Transferor and Bridgestone/Firestone to the Underwriters, including the
reimbursement of each indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, but only with
reference to written information relating to such Underwriter furnished to
the Transferor or Bridgestone/Firestone by or on behalf of such Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Underwriters may otherwise have. The Transferor and
Bridgestone/Firestone each acknowledge that the statements relating to the
Underwriters and this Agreement set forth in the (last paragraph of the cover
page), and the statements under the heading "Underwriting" in any Preliminary
Prospectus and the Prospectus constitute the only information furnished in
writing by or on behalf of any Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus, and the Underwriters confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled, jointly with
any other indemnifying party similarly notified, to appoint counsel
reasonably satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that if the defendants
-------- -------
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional in any material respect to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of
such counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses
in accordance with the proviso to the next preceding sentence or (ii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that
such liability shall be only in respect of the counsel referred to in
such clause (i) or (ii). It is understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph
(a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action.
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraphs (a) and (b) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable on grounds of policy or otherwise, the Transferor and
Bridgestone/Firestone, on the one hand, and the Underwriters, on the other,
shall contribute to the losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating
or defending same) to which the Transferor and Bridgestone/Firestone and the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to
the public offering price appearing thereon and the Transferor and
Bridgestone/Firestone are jointly and severally responsible for the balance;
provided, however, that (i) in no case shall the Underwriters be responsible
- -------- -------
for any amount in excess of the underwriting discount applicable to the
Offered Certificates purchased by the Underwriters hereunder and (ii) 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. For
purposes of this Section 8, each person who controls the Underwriters
within the meaning of the Act shall have the same rights to
contribution as the Underwriters, and each person who controls each of the
Transferor and Bridgestone/Firestone within the meaning of the Act,
each officer of each of the Transferor and Bridgestone/Firestone who
shall have signed the Registration Statement and each director of each of
the Transferor and Bridgestone/Firestone shall have the same rights to
contribution as each of the Transferor and Bridgestone/Firestone, as the
case may be, subject in each case to clauses (i) and (ii) of this paragraph
(d). Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against any
other party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
Section 9. Termination. This Agreement shall be subject to termination
-----------
in the absolute discretion of the Underwriters, by notice given to the
Transferor and Bridgestone/Firestone prior to delivery of and payment for the
Offered Certificates, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States of America is such as to make it,
in the reasonable judgment of the Underwriters, impractical or inadvisable to
market the Offered Certificates.
Section 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the applicable Closing Time to purchase the
Offered Certificates which it or they are obligated to purchase hereunder
(the "Defaulted Certificates"), then such of you as are named herein shall
have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Certificates in such
amounts as may be agreed upon and upon the terms herein set forth. If,
however, you have not completed such arrangements within such 24-hour period,
then:
(a) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered Certificates
to be purchased hereunder, the non-defaulting Underwriters named hereunder
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Offered Certificates to be
purchased hereunder, this Agreement shall terminate, without any liability on
the part of any non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability with respect to any default of such Underwriters
under this Agreement.
In the event of a default by any Underwriters as set forth in this
Section, either you or the Transferor shall have the right to postpone the
applicable Closing Time for a period of time not exceeding seven days in
order that any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements may be effected.
Section 11. Representations and Indemnities To Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of
the Transferor and Bridgestone/Firestone or the officers of any of them and
of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or
on behalf of you or the Trust, the Transferor and Bridgestone/Firestone or
any of the officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Series 1996-1
Certificates. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
Section 12. Notices. All communications hereunder shall be in writing
-------
and effective only on receipt, and, if sent to the Underwriters, will be
mailed, delivered or telegraphed and confirmed to it at: c/o Citibank, N.A.,
399 Park Avenue, New York, New York 10043, Attention: __________; if sent to
the Transferor, will be mailed, delivered or telegraphed and confirmed to it
at: c/o JH Management Corporation, One International Place Suite 520,
Boston, Massachusetts 02110; if sent to Bridgestone/Firestone, will be
mailed, delivered or telegraphed and confirmed to it at:
Bridgestone/Firestone, Inc., 50 Century Boulevard, Nashville, Tennessee
37214, Attention: Saul Soloman.
Section 13. Applicable Law. This Agreement will be governed by and
--------------
construed in accordance with the laws of the State of New York. This
Agreement supersedes all prior agreements and understandings relating to the
subject matter hereof.
Section 14. Successors. This Agreement will inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors
and the officers, directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
Section 15. Execution in Counterpart. This Agreement may be executed
------------------------
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
Section 16. No Bankruptcy Action Against the Transferor. The
-------------------------------------------
Transferor hereby agrees not to take any voluntary action to seek bankruptcy
protection unless there are no Series 1996-1 Certificates outstanding.
Bridgestone/Firestone and each Underwriter hereby agree not to take any
action to commence or participate in any involuntary bankruptcy action
against the Transferor unless there are no Series 1996-1 Certificates
outstanding.
Section 17. Miscellaneous. Neither this Agreement nor any term hereof
-------------
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
If you are in agreement with the foregoing, please sign and return a
counterpart hereof to the Transferor and Bridgestone/Firestone, whereupon
this letter along with all counterparts shall become a binding agreement
among the Transferor, Bridgestone/Firestone and the Underwriters in
accordance with its terms.
Very truly yours,
FIRESTONE RETAIL CREDIT CORPORATION
by
____________________________________________
Name:
Title:
BRIDGESTONE/FIRESTONE, INC.
by
___________________________________________
Name:
Title:
ACCEPTED AND AGREED AS OF
THE DATE FIRST ABOVE WRITTEN:
CITICORP SECURITIES, INC.
by
_________________________
Name:
Title:
CHASE SECURITIES INC.
by
_________________________
Name:
Title:
SCHEDULE A
----------
Purchase Price as a Percentage of the
Aggregate Principal Aggregate Original
Amount Class A Principal Amount of the
Certificates to be Class A
Underwriter Purchased Certificates
- ----------- ---------------------- -----------------------
Citicorp Securities, Inc. . . . . . . . . . . . . . $__________ _____%
Chase Securities Inc.. . . . . . . . . . . . . . . $__________ _____%
Total . . . . . . . . . . . . . . . . . . $200,000,000
Purchase Price as a
Percentage of the
Aggregate Principal Aggregate Original
Amount Class B Principal Amount of the
Certificates to be Class B
Underwriter Purchased Certificates
- ----------- -------------------- ------------------------
Citicorp Securities, Inc. . . . . . . . . . . . . . $_________ _________%
Chase Securities Inc.. . . . . . . . . . . . . . . $_________ _________%
Total . . . . . . . . . . . . . . . . . . $28,205,129