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EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
_____________ , ____
Fleet Credit Card Master Trust II
$____________ Class __ [__%] [Floating Rate] Asset Backed
Certificates, Series ____-_
FLEET BANK (RI), NATIONAL ASSOCIATION
(AS SELLER AND SERVICER)
CLASS __ UNDERWRITING AGREEMENT
as Representative of the
Underwriter[s] set forth herein
c/o
Ladies and Gentlemen:
1. Introductory. Fleet Bank (RI), National Association, a
national banking association (the "Bank") proposes to cause
$____________aggregate principal amount of Fleet Credit Card Master Trust II
Class A [__%] [Floating Rate] Asset Backed Certificates, Series ____-_ the
"Class A Certificates") and $____________ aggregate principal amount of Fleet
Credit Card Master Trust II Class B [__%] [Floating Rate] Asset Backed
Certificates, Series 1____-_ (the "Class B Certificates,"and together with the
Class A Certificates, the "Certificates") to be issued under an Amended and
Restated Pooling and Servicing Agreement, between Bankers Trust Company, as
Trustee (the "Trustee") and the Bank (as Seller and Servicer and successor to
Advanta National Bank as provided in an Assignment and Assumption Agreement
dated as of February 20, 1998 (the "Assumption Agreement") among Advanta
National Bank, the Bank, Fleet Credit and LLC and the Trustee), dated as of
December 1, 1993 (as amended and restated as of May 23, 1994, as amended by
Amendment Number 1 to the Amended and Restated Pooling and Servicing Agreement
dated as of July 1, 1994, Amendment Number 2 to the Amended and Restated
Pooling and Servicing Agreement dated as of October 6, 1995 and Amendment
Number 3 to the Pooling and Servicing Agreement dated as of February 20, 1998),
as supplemented by the Series ____-__ Supplement with respect to the
Certificates, to be dated as of ___________ ___ (the "Series Supplement"). The
Amended and Restated Pooling and Servicing Agreement, as amended, together with
the Assumption Agreement and the Series
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Supplement is herein referred to as the "Pooling and Servicing Agreement"
(references herein to the Pooling and Servicing Agreement may, as the context
requires, include all supplements, including the Series Supplement, to the
Pooling and Servicing Agreement).
The Class __ Certificates are being sold concurrently herewith
pursuant to an underwriting agreement dated the date hereof (the "Class _
Underwriting Agreement"), among the Bank and the underwriter[s] named therein
(the "Class _ Underwriter[s]"). In addition, the Bank, the Trustee, the CIA
Lenders parties thereto, _________________ and _______________, as Cash
Collateral Depositor, will enter into a Loan Agreement, to be dated as of
____________ , ____ (the "Loan Agreement"), pursuant to which the CIA Lenders
(as such term is defined in the Loan Agreement) will purchase the Collateral
Interest relating to the Certificates and the Cash Collateral Depositor will
make the initial deposit into the Cash Collateral Account. The assets of the
Trust will include, among other things, certain amounts due (the "Receivables")
on a pool of VISA and MasterCard credit card accounts of the Bank (the
"Accounts"), the benefit of funds on deposit in the Cash Collateral Account and
recoveries on Defaulted Receivables. To the extent not defined herein,
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Bank hereby agrees with _________________, _____________,
______________ (the "Underwriter[s]") as follows:
2. Representations and Warranties of the Bank. The Bank
represents and warrants to, and agrees with, the Underwriter[s] that:
(a) The Bank is a national banking association duly
organized and validly existing in good standing under the laws of the United
States, and has all requisite corporate power, authority and legal right to own
its property and conduct its credit card business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement, the Class _
Underwriting Agreement, the Certificates and each of the Pooling and Servicing
Agreement and the Loan Agreement (the Pooling and Servicing Agreement and the
Loan Agreement, together, the "Transaction Documents").
(b) The execution and delivery of this Agreement, the
Class _ Underwriting Agreement, the Certificates, the Series Supplement, the
Loan Agreement and the Assumption Agreement, the incurrence of the obligations
herein and therein set forth and the consummation of the transactions
contemplated hereunder and thereunder have been duly authorized by the Bank by
all necessary action on the part of the Bank.
(c) This Agreement and the Class _ Underwriting Agreement
have been duly authorized and validly executed and delivered by the Bank.
(d) Each of the Series Supplement and the Loan Agreement
will be executed and delivered by the Bank on or before the Closing Date, and
when executed and delivered by the other parties thereto, each will constitute
a valid and binding agreement of the Bank,
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enforceable against the Bank in accordance with its terms, and the Pooling and
Servicing Agreement as previously executed and delivered by predecessors of the
Bank and the Assumption Agreement, previously executed by the Bank each
constitute a valid and binding agreement of the Bank, enforceable against the
Bank each in accordance with its terms, except, in each case, to the extent
that (i) the enforceability thereof may be subject to insolvency,
reorganization, moratorium, receivership or other similar laws now or hereafter
in effect relating to creditors' or other obligees' rights generally or the
rights of creditors or other obligees insured by the FDIC, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (iii) certain remedial provisions of
the Pooling and Servicing Agreement may be unenforceable in whole or in part
under the UCC, but the inclusion of such provisions does not render the other
provisions of the Pooling and Servicing Agreement invalid and, notwithstanding
that such provisions may be unenforceable in whole or in part, the Trustee, on
behalf of the Holders of the Certificates, will be able to enforce the remedies
of a secured party under the UCC.
(e) The Certificates will be issued pursuant to the terms
of the Pooling and Servicing Agreement and, when executed by the Bank and
authenticated by the Trustee in accordance with the Pooling and Servicing
Agreement and delivered pursuant to this Agreement and the Class _ Underwriting
Agreement, will be validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement. The Certificates will be in all
material respects in the form contemplated by the Pooling and Servicing
Agreement and will conform to the description thereof contained in the
Prospectus and Registration Statement, as amended or supplemented.
(f) The Bank is not in violation of any Requirement of
Law or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other instrument to
which it is a party or by which it is bound or to which any of its property is
subject, which violations or defaults separately or in the aggregate would have
a material adverse effect on the Bank or the Trust.
(g) Neither the issuance and sale of the Certificates,
nor the execution and delivery by the Bank of this Agreement, the Class _
Underwriting Agreement, the Certificates or the Transaction Documents, nor the
incurrence by the Bank of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or thereunder, nor the
fulfillment of the terms hereof or thereof does or will (i) violate any
Requirement of Law presently in effect, applicable to it or its properties or
by which it or its properties are or may be bound or affected, (ii) conflict
with, or result in a breach of, or constitute a default under, any indenture,
contract, agreement, deed, lease, mortgage or instrument to which it is a party
or by which it or its properties are bound, or (iii) result in the creation or
imposition of any Lien upon any of its property or assets, except for those
encumbrances created under the Pooling and Servicing Agreement.
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(h) All consents, approvals, authorizations, orders,
filings, registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body required in
connection with the execution and delivery by the Bank of this Agreement, the
Class _ Underwriting Agreement, the Certificates or the Transaction Documents,
or to the consummation of the transactions contemplated hereunder and
thereunder, or to the fulfillment of the terms hereof and thereof have been or
will have been obtained on or before the Closing Date.
(i) All actions required to be taken by the Bank as a
condition to the offer and sale of the Certificates as described herein or in
the Class _ Underwriting Agreement or the consummation of any of the
transactions described in the Prospectus and Registration Statement have been
or, prior to the Closing Date, will be taken.
(j) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939.
(k) The representations and warranties made by the Bank
in the Pooling and Servicing Agreement and made in any Officer's Certificate of
the Bank delivered pursuant to the Pooling and Servicing Agreement will be true
and correct at the time made and on and as of the Closing Date as if set forth
herein.
(l) The Receivables (including Receivables in Additional
Accounts the Receivables of which will not be conveyed to the Trust until the
Closing Date) had an aggregate outstanding balance determined as of
______________ in the amount set forth in the Prospectus.
(m) The Bank agrees it has not granted, assigned, pledged
or transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the
Receivables, except as provided in the Pooling and Servicing Agreement, and
agrees to take all action required by the Pooling and Servicing Agreement in
order to maintain the security interest in the Receivables granted pursuant to
the Pooling and Servicing Agreement.
(n) A registration statement on Form S-3 (No. __-_____),
including a form of prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Certificates and the offering
thereof in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), has been filed with, and has been declared effective by,
the Securities and Exchange Commission (the "Commission"). If any
post-effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. For
purposes of this Agreement, "Effective Time" means the date and time as of
which such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective Date"
means the date of the Effective Time. Such registration statement, as amended
at the Effective Time, is hereinafter referred to as the "Registration
Statement." The Bank proposes to file with the Commission pursuant to Rule
424(b) ("Rule 424(b)") under the Act a supplement (the "Prospectus Supplement")
to the
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prospectus included in the Registration Statement (such prospectus, in the form
it appears in the Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b), is hereinafter referred
to as the "Base Prospectus") relating to the Certificates and the method of
distribution thereof. The Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, are hereinafter
referred to as the "Prospectus".
(o) On the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission thereunder (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 and the Prospectus conform, and at the time of filing of the
Prospectus pursuant to Rule 424(b) the Registration Statement and the
Prospectus will conform, in all respects with the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
statements in or omissions from either of such documents based upon written
information furnished to the Bank by the Underwriter[s] specifically for use
therein.
(p) There has not been any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of the Bank or its subsidiaries, taken as a whole, from ______________.
3. Purchase, Sale, Payment and Delivery of the Certificates.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Bank agrees to sell to the Underwriter[s], and the Underwriter[s]
agree to purchase from the Bank, at a purchase price of ______ of the principal
amount thereof, ________ aggregate principal amount of the Class _
Certificates, each Underwriter to purchase the amounts shown on Schedule A
hereto.
(b) The Bank will deliver the Class _ Certificates to you
against payment of the purchase price in immediately available funds, drawn to
the order of the Bank, at the office of _______________, in _______________ at
10:00 A.M., New York City time, on ____________ , ____, or at such other time
not later than seven full business days thereafter as you and the Bank
determine, such time being herein referred to as the "Closing Date." Each of
the Class _ Certificates so to be delivered shall be represented by one or more
definitive certificates registered in the name of Cede & Co., as nominee for
The Depository Trust Company. The Bank shall make such definitive certificates
representing the Class _ Certificates available for inspection by the
Underwriter[s] at the office at which the Class _ Certificates are to be
delivered no later than five hours before the close of business in New York
City on the business day prior to the Closing Date.
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4. Offering by Underwriter[s]. It is understood that after the
Effective Date, the Underwriter[s] propose to offer the Class _ Certificates
for sale to the public (which may include selected dealers) as set forth in the
Prospectus.
5. Certain Agreements of the Bank. The Bank agrees with the
Underwriter[s] that:
(a) Immediately following the execution of this
Agreement, the Bank will prepare a Prospectus Supplement setting forth the
amount of Certificates covered thereby and the terms thereof not otherwise
specified in the Base Prospectus, the price at which such Certificates are to
be purchased by the Underwriter[s] and the Class _ Underwriter[s], the initial
public offering price, the selling concessions and allowances, and such other
information as the Bank deems appropriate. The Bank will transmit the
Prospectus, including such Prospectus Supplement, 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). The Bank will not file any amendment of the
Registration Statement with respect to the Class _ Certificates or supplement
to the Prospectus unless a copy has been furnished to you for your review a
reasonable time prior to the proposed filing thereof or to which you shall
reasonably object to in writing. The Bank will advise you promptly of (i) the
effectiveness of any amendment or supplementation of the Registration Statement
or Prospectus, (ii) any request by the Commission for any amendment or
supplementation of the Registration Statement or the Prospectus or for any
additional information, (iii) the receipt by the Bank of any notification with
respect to the suspension of qualification of the Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes and (iv) the institution by the Commission of any stop order
proceeding in respect of the Registration Statement, and will use their best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Act, the Bank promptly will prepare
and file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither your consent to, nor the Underwriter['s] delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(c) As soon as practicable, the Bank will cause the Trust
to make generally available to the Certificateholders an earnings statement or
statements of the Trust covering a period of at least 12 months beginning after
the Effective Date which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 of the Commission promulgated thereunder.
(d) The Bank will furnish to you copies of the
Registration Statement (one of which will be signed and will include all
exhibits), the Prospectus and all amendments and
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supplements to such documents, in each case as soon as available and in such
quantities as you reasonably request.
(e) The Bank will endeavor to qualify the Class _
Certificates for sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and the determination of the
eligibility for investment of the Class _ Certificates under the laws of such
jurisdictions as you may designate and will continue such qualifications in
effect so long as required for the distribution of the Class _ Certificates;
provided, however, that the Bank shall not be obligated to qualify to do
business in any jurisdiction where such qualification would subject the Bank,
as the case may be, to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) For a period from the date of this Agreement until
the retirement of the Class _ Certificates, the Bank, as Servicer, will furnish
to you copies of each certificate and the annual statements of compliance
delivered to the Trustee pursuant to Article III of the Pooling and Servicing
Agreement and the annual independent certified public accountant's servicing
reports furnished to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement, by first class mail as soon as practicable after such
certificates, statements and reports are furnished to the Trustee.
(g) So long as any Class _ Certificate is outstanding,
the Bank will furnish to you, by first-class mail as soon as practicable (i)
all documents concerning the Certificates distributed by the Bank to
Certificateholders, or filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) any order of the
Commission under the Act or the Exchange Act applicable to the Trust or to the
Bank as originators of the Trust, or pursuant to a "no-action" letter obtained
from the staff of the Commission by the Bank and affecting the Trust or the
Bank as originators of the Trust and (iii) from time to time, such other
information concerning the Trust as you may reasonably request.
(h) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated for any reason,
except a default by you hereunder, the Bank will pay [description of expenses
to be paid by Bank.]
(i) To the extent, if any, that any of the ratings
provided with respect to the Certificates by Moody's Investors Service, Inc. or
Standard & Poor's Ratings Services are conditional upon the furnishing of
documents or the taking of any other actions by the Bank, the Bank shall
furnish such documents and take any such other actions.
6. Conditions of the Obligations of the Underwriter[s]. The
obligation of the Underwriter[s] to purchase and pay for the Class _
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Bank herein, to the accuracy of the statements of
officers of the Bank made pursuant to the provisions hereof, to the performance
by the Bank of its obligations hereunder and to the following additional
conditions precedent:
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(a) On or prior to the date of this Agreement, you shall
have received a letter, dated the date of this Agreement, of ________________,
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder,
substantially in the form heretofore agreed to and otherwise in form and in
substance satisfactory to you and your counsel.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of
this Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Bank or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Bank which, in your judgment, materially impairs the
investment quality of the Certificates; (ii) any downgrading in the rating of
any debt securities of the Bank or Fleet Financial Group, Inc. ("Fleet
Financial") by any "nationally recognized statistical rating organization" (as
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 any
such debt securities (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading, of such
rating), (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the Bank or
Fleet Financial on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by Federal, Rhode Island or New York authorities;
or (v) any outbreak or escalation of major 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 your judgment, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Class _ Certificates.
(d) You shall have received an opinion, dated the Closing
Date, of __________ _________ General Counsel for the Bank, to the effect that:
(i) The Bank (x) has been duly chartered and is
validly existing as a national banking association under the laws of
the United States, with power and authority to own its properties and
conduct its business as described in the Prospectus; (y) is neither
required to qualify, nor to register as a foreign corporation, in any
state in order to conduct its credit card business, except where the
failure to so qualify or register would not have a material adverse
effect upon the Certificateholders; and (z) has the power, authority
and legal right to acquire, own and service the Accounts and the
Receivables;
(ii) The Bank has the power and authority to
execute and deliver this Agreement, the Class _ Underwriting
Agreement, the Series Supplement, the Loan Agreement and the
Certificates and to consummate the transactions contemplated herein
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and therein and the Bank, at the time of the Assignment Agreement, had
and at all times since has had and does now have the power and
authority to execute and deliver the Assignment Agreement and to
consummate the transactions contemplated by the Assignment Agreement
and the Pooling and Servicing Agreement.
(iii) Each of the Class _ Underwriting Agreement, the
Series Supplement, the Loan Agreement and the Certificates has been
duly authorized, executed and delivered by the Bank;
(iv) This Assignment Agreement has been duly
authorized, executed and delivered by the Bank;
(v) This Agreement has been duly authorized,
executed and delivered by the Bank;
(vi) The Registration Statement has become
effective under the Act and to the best of such counsel's knowledge no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or threatened under the Act; the Registration Statement,
the Prospectus and each amendment thereof or supplement thereto (other
than the financial and statistical information contained therein) on
their respective effective dates or dates of issuance appear on their
face to be appropriately responsive in all material respects to the
applicable requirements of the Act and the Rules and Regulations; such
counsel has no reason to believe that either the Registration
Statement or the Prospectus, or any such amendment or supplement, as
of such respective dates, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented as of the date of such
opinion, contains any untrue statement of a material fact or omits 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 (except that such counsel may express
no opinion as to (y) any financial statements, schedules or other
financial data included in the Registration Statement, the Prospectus,
or any such amendment or supplement, or (z) the exhibits to the
Registration Statement); and the summaries in the Registration
Statement and Prospectus of statutes, legal proceedings, contracts and
other documents are accurate and fairly present the information
required to be shown;
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(vii) No consent, approval, authorization or
order of, or filing of UCC financing statements with any court or
governmental agency or body having jurisdiction over the Bank is
required for the consummation of the transactions contemplated by this
Agreement, the Class _ Underwriting Agreement, the Pooling and
Servicing Agreement or the Loan Agreement, except for (x) filing of
UCC financing statements with respect to the transactions contemplated
in the Pooling and Servicing Agreement; (y) such consents, approvals,
authorizations, orders or filings as have been obtained under the Act;
and (z) such consents, approvals, authorizations, orders or filings as
may be required under blue sky laws of any jurisdiction;
(viii) The execution, delivery and performance by the
Bank of this Agreement, the Class _ Underwriting Agreement, the
Pooling and Servicing Agreement and the Loan Agreement, the transfer
of the Receivables to the Trust, the issuance and sale of the
Certificates and the consummation of any other of the transactions
contemplated herein or in the Pooling and Servicing Agreement or the
Loan Agreement will not conflict with, result in a breach of or a
violation of any of the terms of, or constitute a default under, (x)
the Articles of Association or By-Laws of the Bank or (y) any rule,
order, statute or regulation known to such counsel to be currently
applicable to the Bank, or (z) any agreement or other instrument,
known to such counsel, to which the Bank is a party or by which it is
bound; and
(ix) To such counsel's knowledge, there are no
actions, proceedings or investigations pending before any court,
administrative agency or other tribunal (w) asserting the invalidity
of this Agreement, the Class _ Underwriting Agreement, the Pooling and
Servicing Agreement, the Loan Agreement or the Certificates, (x)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement, the Class _ Underwriting Agreement, the Pooling and
Servicing Agreement or the Loan Agreement, (y) which might materially
and adversely affect the performance by the Bank of its obligations
under, or the validity or enforceability of, this Agreement, the Class
_ Underwriting Agreement, the Pooling and Servicing Agreement, the
Loan Agreement or the Certificates or (z) seeking adversely to affect
the federal income tax attributes of the Certificates as described in
the Prospectus under the headings "Summary of Terms -- Tax Status" and
"Federal Income Tax Consequences."
(e) You shall have received a letter of Edwards & Angell,
counsel for the Bank, to the effect that you may rely on those provisions of
their opinions to Moody's Investors Service, Inc. and Standard & Poor's Ratings
Services 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 with respect to other related matters.
(f) You shall have received an opinion dated the closing
date, of Orrick, Herrington & Sutcliffe LLP, special counsel to the Bank, to
the effect that
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(i) The Pooling and Servicing Agreement, including
the allocation of Collections provisions thereof, constitutes the
legal, valid and binding obligation of the Bank under the laws of the
State of New York, enforceable against the Bank in accordance with its
terms.
(ii) Each of this Agreement and the Class _
Underwriting Agreement constitutes the legal, valid and binding
obligation of the Bank under the laws of the State of New York,
enforceable against the Bank in accordance with its terms.
(iii) The Loan Agreement constitutes the legal,
valid and binding obligation of the Bank under the laws of the State
of New York, enforceable against the Bank in accordance with its
terms.
(iv) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the
Underwriter[s] in accordance with this Agreement, will be duly and
validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
(v) The statements in the Base Prospectus under the
headings "Certain Legal Aspects of the Receivables," "ERISA
Considerations" and "Federal Income Tax Consequences" and the
summaries thereof under the headings "Summary of Terms -- Tax Status"
and "--ERISA Considerations" in the Base Prospectus and "Summary of
Terms -- Tax Status" and "--ERISA Considerations" and "Federal Income
Tax Consequences" in the Prospectus Supplement, to the extent they
constitute matters of law or legal conclusions with respect thereto,
have been reviewed by us and are correct in all material respects.
(vi) This Agreement, the Pooling and Servicing
Agreement and the Certificates conform in all material respects to the
descriptions thereof contained in the Prospectus.
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not now, and immediately following the sale
of the Certificates pursuant to this Agreement will not be, required
to be registered under the Investment Company Act of 1940, as amended.
(viii) For federal income tax purposes the
Certificates will properly be characterized as indebtedness and for
purposes of Section 6.03(b)(vi) of the Pooling and Servicing Agreement
(a) the issuance of the Certificates will not adversely affect the tax
characterization as debt of Investor Certificates of any outstanding
Series or Class that were characterized as debt at the time of their
issuance, (b) following the issuance of the Certificates, the Trust
will not be an association (or publicly traded partnership) taxable as
a corporation and (c) the issuance of the Certificates will not cause
or constitute an event in which gain or loss would be recognized by
any Investor Certificateholder or the Trust. Although the foregoing
represents our views regarding the characteristics of the
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Trust and the Certificates for federal income tax purposes, we call
your attention to the discussion of alternative characterizations and
risks discussed in the Base Prospectus under the heading "Federal
Income Tax Consequences."
(h) You shall have received from ___________________,
special counsel for the Underwriter[s], such opinion or opinions, dated the
Closing Date, with respect to such matters relating to this transaction as you
may require, and the Bank shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(i) You shall have received a certificate from the Bank,
dated the Closing Date, of two Vice Presidents or more senior officers of the
Bank in which such officers, to the best of their knowledge after reasonable
investigation, shall state that (u) 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, (v) 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, (w) the representations and warranties of the
Bank, as a Seller and as Servicer, are true and correct as of the dates
specified in the Pooling and Servicing Agreement, (x) 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, (y) nothing has come to such officers' attention that would lead
such officers to believe that the Registration Statement or the Prospectus, and
any amendment or supplement thereto, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (z)
subsequent to the date of the Prospectus, 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 Prospectus or as
described in such certificate.
(j) You shall have received an opinion of White & Case,
counsel to the Trustee, addressed to you, dated the Closing Date, satisfactory
in form and substance to you and your counsel and substantially 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 to enter into and to
perform all actions required of it under the Pooling and Servicing
Agreement and the Loan Agreement;
(ii) Each of the Pooling and Servicing
Agreement and the Loan Agreement has been duly authorized, executed
and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except as such enforceability may be
limited by (y) bankruptcy, insolvency, liquidation, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights in general, as such laws would apply in the event
of a bankruptcy, insolvency, liquidation, reorganization, moratorium
or similar
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occurrence affecting the Trustee, and (z) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The Certificates have been duly authenticated
and delivered by the Trustee;
(iv) The execution and delivery of the Pooling
and Servicing Agreement and the Loan Agreement by the Trustee and the
performance by the Trustee of their terms does not conflict with or
result in a violation of (y) any law or regulation of the United
States of America or the State of New York governing the banking or
trust powers of the Trustee, or (z) the Certificate of Incorporation
or By-Laws of the Trustee; and
(v) No approval, authorization or other action
by, or filing with, any governmental authority of the United States of
America or the State of New York having jurisdiction over the banking
or trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and Servicing
Agreement and the Loan Agreement or the performance by the Trustee
thereunder.
(k) You shall have received an opinion of counsel to each
CIA Lender, addressed to you, dated the Closing Date, satisfactory to you and
your counsel and substantially to the effect that:
(i) The CIA Lender is validly existing as a
______________ under the laws of the _______________ and is duly
licensed to ___________________________.
(ii) The Loan Agreement has been duly authorized
by all necessary corporate action on the part of the CIA Lender.
(iii) The Loan Agreement has been duly executed and
delivered by the CIA Lender and, assuming due authorization, execution
and delivery of the Loan Agreement by the other parties thereto,
constitutes the legal, valid and binding obligation of the CIA Lender
enforceable against the CIA Lender in accordance with its terms under
the laws of the State of New York, except as such enforceability may
be limited by (w) bankruptcy, insolvency, receivership,
conservatorship, reorganization, liquidation, moratorium or other
similar laws affecting the enforcement of creditor's rights and
remedies in general, as such laws would apply in the event of the
bankruptcy, insolvency, reorganization or liquidation of, or other
similar occurrence with respect to, the CIA Lender, or in the event of
any moratorium or similar occurrence affecting the CIA Lender, (x) the
principles of law or equity relating to fraud, (y) general principles
of equity, including, but not limited to, the availability of certain
equitable remedies and (z) the refusal of a court to enforce a
covenant to indemnify on grounds that such covenant is contrary to
public policy.
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(iv) The ____________________ of the CIA Lender is
duly licensed to do business in the State of __________ and is subject
to regulation by the United States and the State of ______________.
The CIA Lender is subject to service of process in the State of New
York.
(v) No consent, license (other than the license
referred to in paragraph (iv)), or approval of any governmental
authority, agency or instrumentality of the United States or the State
of New York is required in connection with the validity of, or the
execution, delivery, performance or enforceability of, the Loan
Agreement.
[(l) You shall have received an opinion of foreign counsel
to each CIA Lender addressed to you, dated the Closing Date, satisfactory to
you and your counsel and substantially to the effect that:
(i) The CIA Lender is a banking corporation duly
organized and validly existing under the laws of the relevant foreign
jurisdiction. The CIA Lender has the corporate power and authority to
execute, deliver and perform, through its _______________ Branch, its
obligations under the Loan Agreement.
(ii) The Loan Agreement has been duly authorized by
the CIA Lender and, when duly executed and delivered by an authorized
officer of the CIA Lender, will constitute the legal, valid and
binding obligation of the CIA Lender enforceable against the CIA
Lender in accordance with its terms, except as limited by bankruptcy,
insolvency, liquidation, reorganization, moratorium or other similar
laws affecting generally the enforcement of creditors' rights and
remedies as the same may be applied in the event of the bankruptcy,
insolvency, liquidation, reorganization or similar situation of the
CIA Lender or a moratorium applicable to the CIA Lender. The
obligations of the CIA Lender under the Loan Agreement will rank
equally with general deposits and all other unsecured indebtedness of
the CIA Lender whether now or hereafter outstanding which are not
contractually subordinated to the payment of such obligations.
(iii) Any final money judgment for a fixed and
definite sum by a competent New York Court or United States Court
sitting in New York obtained against the CIA Lender and based upon the
Loan Agreement should, upon request, be declared valid and enforceable
by the competent courts of the relevant foreign jurisdiction, if such
judgment is not subject to appeal and is enforceable according to the
laws of New York; provided, however, that such judgment will not be
enforced if its contents are in violation of fundamental principles of
the relevant foreign jurisdiction's legal system or if it has been
rendered in violation of such principles. Such counsel knows of no
reason why recognition of such judgment would be deemed or held to the
contrary to the relevant foreign jurisdiction's legal system. In
addition, enforcement may be refused if the foreign state does not
observe reciprocity. Reciprocity is affirmed with regard to decisions
of United States courts and of courts of the State of New York. As a
general rule it can be stated that decisions of United States courts
and of courts of the State of New York are enforceable in the relevant
foreign jurisdiction.
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(iv) The parties to the Loan Agreement will
alternatively be able to proceed against the CIA Lender's head office
in the relevant foreign jurisdiction, if the CIA Lender defaults in
its obligations under the Loan Agreement.]
(m) You shall have received evidence satisfactory to you
that the Class _ Certificates shall be rated ____ by Moody's Investors Service,
Inc. and ____ by Standard & Poor's Ratings Services and that the Class _
Certificates shall be rated no lower than __ by Moody's Investors Service, Inc.
and no lower than __ by Standard & Poor's Ratings Services.
The Bank will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution. (a) The Bank will indemnify
and hold harmless the Underwriter[s] against any losses, claims, damages or
liabilities, joint or several, to which the Underwriters 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
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein r necessary to make
the statements therein not misleading, and will reimburse the Underwriter[s]
for any legal or other expenses reasonably incurred by the Underwriter[s] in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Bank will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Bank by the Underwriter[s] specifically for use therein.
(b) The Underwriter[s] agree [,severally and not
jointly,] to indemnify and hold harmless the Bank against any losses, claims,
damages or liabilities to which the Bank may become subject, under the Act or
otherwise and will reimburse any legal or other expenses reasonably incurred by
the Bank in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Bank
by the Underwriter[s] specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Bank in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
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(c) Promptly after receipt by an indemnified party under
this section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the indemnifying
party 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 subsection (a) or (b) above. 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 to participate therein and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (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 (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Bank on the one hand and the Underwriter[s] on the other from the
offering of the Class _ Certificates, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Bank on the one hand and the
Underwriter[s] on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the
Bank on the one hand and the Underwriter[s] on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) of the Class _ Certificates received by the Bank bear to
the total underwriting discounts and commissions received by the Underwriter[s]
with respect to the Class _ Certificates. The relative fault 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 or the
Underwriter[s] and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission with respect to the Class _ Certificates. 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 subsection (d) shall be deemed to
include any other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subdivision (d), the Underwriter[s] shall not be required to contribute any
amount in excess of the amount by which the total price at which the Class _
Certificates underwritten by the Underwriter[s] and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter[s] have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission with respect to the
Class _ Certificates. No person guilty of fraudulent
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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.
(e) The obligations of the Bank under this Section shall
be in addition to any liability which the Bank may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter[s] within the meaning of the Act; and the obligations
of the Underwriter[s] under this section shall be in addition to any liability
which the Underwriter[s] may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Bank, to each officer of the Bank
who has signed the Registration Statement and to each person, if any, who
controls the Bank within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or their officers and of the Underwriter[s] set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of the Underwriter[s], the Bank or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Class _ Certificates. If this
Agreement is terminated or if for any reason other than default by the
Underwriter[s] the purchase of the Class _ Certificates by the Underwriter[s]
is not consummated, the Bank shall remain responsible for the expenses to be
paid by it pursuant to Section 5 and the respective obligations of the Bank and
the Underwriter[s] pursuant to Section 7 shall remain in effect. If for any
reason the purchase of the Class _Certificates by the Underwriter[s] is not
consummated other than solely because of the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Bank will reimburse the
Underwriter[s] for all out-of-pocket expenses reasonably incurred by them in
connection with the offering of the Class _ Certificates.
9. Computational Materials and ABS Term Sheets. (a) Each
Underwriter agrees to provide to the Bank, not less than two Business Days
prior to the date on which the Bank is required to file the Prospectus
Supplement pursuant to Rule 424(b), any information used by it (in such written
or electronic format as required by the Bank) with respect to the offering of
the Class _ Certificates that constitutes "Computational Materials," as defined
in the Commission's No-Action Letter, dated May 20, 1994, addressed to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation (as made generally applicable to registrants,
issuers and underwriters by the Commission's response to the request of the
Public Securities Association dated May 27, 1994 (the "Kidder/PSA Letter")),
that is not contained in the Prospectus (without taking into account
information incorporated therein by reference).
(b) Each Underwriter agrees to provide to the Bank, not
less than two Business Days prior to the date on which the Bank is required to
file the Prospectus Supplement pursuant to Rule 424(b), any information used by
it (in such written or electronic format as required by the Bank) with respect
to the offering of the Class _ Certificates that constitutes "ABS Term Sheets",
as defined in the Commission's No-Action Letter, dated February 17, 1995,
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addressed to the Public Securities Association, that is not contained in the
Prospectus (without taking into account information incorporated therein by
reference).
(c) Each Underwriter severally agrees, assuming all
information provided by the Bank is accurate and complete in all material
respects, to indemnify and hold harmless the Bank, each of the officers and
directors of the Bank and each person who controls the Bank within the meaning
of Section 15 of the Act against any and all losses, claims, damages or
liabilities, joint or several, to which they 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
of a material fact contained in the Computational Materials or ABS Term Sheets,
if any, provided by the Underwriter, 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, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such loss, claim, damage, liability or
action as such expenses are incurred. The obligations of the Underwriter under
this Section 9(c) shall be in addition to any liability that the Underwriter
may otherwise have.
The procedures set forth in Sections 7(c) and 7(d) shall be
equally applicable to this Section 9(c).
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriter[s], will be mailed, delivered or telegraphed and
confirmed to:
11. Counterparts. 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 Agreement.
12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. Financial Services Act. Each Underwriter represents and
warrants to, and agrees with, the Bank that (w) it has complied and shall
comply with all applicable provisions of the Financial Services Act 1986 and
the Public Offers of Securities Regulations 1995 (the "Regulations") with
respect to anything done by it in relation to the Class _ Certificates in, from
or otherwise involving the United Kingdom; (x) it has only issued or passed on
and shall only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Class _ Certificates to a person who is
of a kind described in Article 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1995 or who is a person to whom
the document may otherwise lawfully be issued or passed on; (y) it has not
offered or sold and, during the period of six months from the date hereof, will
not offer or sell any Class _ Certificate to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing, or disposing of investments (as principal or agent) for the
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purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Regulations.
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If you are in agreement with the foregoing, please sign two
counterparts hereof and return one to the Bank whereupon this letter and your
acceptance shall become a binding agreement among the Bank and the
Underwriter[s].
Very truly yours,
FLEET BANK (RI),
NATIONAL ASSOCIATION
By
--------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
as [Representative of the]
Underwriter[s] set forth herein
By
--------------------------
Name:
Title:
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SCHEDULE A
Class _ Certificates
--------------------
Principal Amount of
Underwriters Class _ Certificates
------------ --------------------