FIRST NATIONAL BANK OF COMMERCE
First NBC Credit Card Master Trust
$259,500,000 6.15% Class A
Asset Backed Certificates - Series 1997-1
$21,000,000 6.35% Class B
Asset Backed Certificates - Series 1997-1
FORM UNDERWRITING AGREEMENT
July 31, 1997
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Representative of the Several Underwriters
Named in Schedule I hereto
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
First National Bank of Commerce ("First NBC" or the
"Transferor") proposes to convey, from time to time, the receivables (the
"Receivables") that are generated in a portfolio of revolving credit card
accounts and other rights to the First NBC Credit Card Master Trust (the
"Trust"), and the Transferor proposes to cause the Trust to sell to you and
the underwriters named in Schedule I hereto (the "Underwriters") for whom
you are acting as representatives (the "Representatives") $259,500,000
6.15% Class A Asset Backed Certificates, Series 1997-1 (the "Class A
Certificates") and $21,000,000 6.35% Class B Asset Backed Certificates,
Series 1997- 1 (the "Class B Certificates" and, together with the Class A
Certificates, the "Certificates") representing beneficial interests in the
Trust. The Receivables will from time to time be conveyed by the Transferor
to the Trust, and the Certificates will be issued, pursuant to the Pooling
and Servicing Agreement, to be dated as of August 1, 1997 (the "Pooling and
Servicing Agreement"), between First NBC, as Transferor and Servicer, and
The First National Bank of Chicago, as trustee (the "Trustee"), and the
Series 1997-1 Supplement to the Pooling and
Servicing Agreement, to be dated as of August 1, 1997 (the "Supplement"),
between First NBC, as Transferor and Servicer, and the Trustee.
The Certificates will be sold pursuant to this
Underwriting Agreement (this "Agreement") and will represent undivided
interests in certain assets of the Trust (as hereinafter described).
Capitalized terms used herein without definition shall
have the meanings set forth in the Pooling and Servicing Agreement and the
Supplement.
Section 1. Representations and Warranties of the Transferor.
(a) The Transferor represents and warrants to, and agrees
with, each Underwriter as set forth in this Section 1(a). Certain
terms used in this Section 1(a) are defined in the second
paragraph of subsection 1(a)(i) below.
(i) The Transferor meets the requirements for
use of Form S-3 under the Securities Act of 1933, as
amended (the "Act"), and has filed with the Securities
and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-24023), including a
related preliminary prospectus, on such Form S-3 for the
registration under the Act of the Certificates. The
Transferor may have filed one or more amendments thereto,
including the related preliminary prospectus, each of
which has previously been furnished to you. The
Transferor will next file with the Commission (A) prior
to the effectiveness of such registration statement, a
further amendment thereto (including the form of final
prospectus), (B) after effectiveness of such registration
statement, a final prospectus in accordance with Rules
430A and 424(b) or (C) after effectiveness of such
registration statement, a final prospectus relating to
the Certificates in accordance with Rules 415 and 424(b)
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 prospectuses with
respect to the Certificates and the offering thereof. As
filed, such amendment and form of final prospectus, or
such final prospectus, shall include all Rule 430A
Information 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 which 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 which 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 under the Act. "Exchange Act" means the
Securities and Exchange Act of 1934, as amended. "Execution
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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 relating to the Certificates referred to in the
preceding paragraph and, if clause (B) above is applicable, any preliminary
prospectus included in the Registration Statement which, as of the
Effective Date, omits Rule 430A Information. "Prospectus" shall mean the
prospectus relating to the Certificates that is first filed with the
Commission pursuant to Rule 424(b) and any prospectuses subsequently filed
pursuant to Rule 424 or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus 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 amendments, all documents incorporated or deemed to
be incorporated by reference therein, exhibits and financial statements, in
the form in which it has or shall become effective and, in the event that
any post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement
as amended or supplemented pursuant to the Act or rules thereunder or the
Exchange Act or rules thereunder. Such term shall include Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A. "Rule 424" and "Rule 430A" refer to such rules under the Act.
"Rule 430A Information" means information with respect to the Certificates
and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. All references
in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any document under the Exchange Act which
is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
(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 (and 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 or omit to state any
material fact required to be stated therein or necessary
in order to make the statements 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 (together with any
supplement 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
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thereto) in reliance upon and in conformity with
information furnished in writing to the Transferor by or
on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration
Statement or the Prospectus (or any supplements thereto).
The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and
will comply in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission under the Exchange Act,
and, when read together with the other information in the
Prospectus, at the time the Registration Statement and
any amendments thereto become effective and at the
Closing Date, will not contain an untrue statement of a
material fact or omit to state 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.
(iii) The Transferor is duly organized, validly
existing and in good standing as a national banking
association under the laws of the United States. The
Transferor has all requisite power and authority to own
its properties and conduct its business as presently
conducted and is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction which requires such qualification, except
where failure to have such requisite power and authority
or to be so qualified would not have a material adverse
effect on the business or consolidated financial
condition of the Transferor.
(iv) The Transferor is not in violation of its
charter or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is
a party or by which it may be bound, or to which any of
the property or assets of the Transferor is subject,
except where any such violation or default would not have
a material adverse effect on the transactions
contemplated by this Agreement.
(v) The execution, delivery and performance by
the Transferor of each of this Agreement, the Pooling and
Servicing Agreement, the Supplement, the Loan Agreement,
and the Depository Agreement, the issuance of the
Certificates and the consummation of the transactions
contemplated hereby and thereby have been duly and
validly authorized by all necessary action or proceedings
and will not conflict with or constitute a breach of, or
default under, or result in the creation 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 a party or by which
it may be bound, or to which any of the property or
assets of the Transferor is subject, nor will such action
result in any violation of the provisions of the charter
or by-laws of the Transferor or any applicable law,
administrative regulation or administrative or court
decree, except where any such conflict, breach, default,
encumbrance or violation would not have a material
adverse effect on the transactions contemplated by this
Agreement.
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(vi) This Agreement has been and the Pooling and
Servicing Agreement, the Supplement and the Loan
Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly executed and
delivered by the Transferor; and this Agreement
constitutes, and the Pooling and Servicing Agreement, the
Supplement and the Loan Agreement when executed and
delivered as contemplated herein will constitute, legal,
valid and binding instruments enforceable against the
Transferor in accordance with their respective terms,
subject as to enforceability (A) to applicable
bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally
and the rights and remedies of creditors of thrifts,
savings institutions or national banking associations,
(B) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity
or at law) and (C) with respect to rights of indemnity
under this Agreement or the Loan Agreement, to
limitations of public policy under applicable securities
laws.
(vii) The Transferor has authorized the
conveyance of the Receivables to the Trust; and the
Transferor has directed the Trust to issue and sell the
Certificates.
(viii) The Transferor will provide to the
Representatives complete and correct copies of publicly
available portions of the Consolidated Reports of
Condition and Income of the Transferor for the years
ended December 31, 1996 and 1995 as submitted to the
Comptroller of the Currency. Except as set forth or
contemplated in the Registration Statement and the
Prospectus, there has been no material adverse change in
the condition (financial or otherwise) of the Transferor
since the date of the last such publicly available
portion of Consolidated Reports of Condition and Income.
(ix) Any taxes, fees and other governmental
charges in connection with the execution, delivery and
performance of this Agreement, the Pooling and Servicing
Agreement, the Supplement, the Loan Agreement and the
Certificates shall have been paid or will be paid by the
Transferor at or prior to the Closing Date.
(x) The Certificates have been duly and validly
authorized, and, when validly executed, authenticated,
issued and delivered in accordance with the Pooling and
Servicing Agreement and the Supplement and as provided
herein will conform in all material respects to the
description thereof contained in the Prospectus and will
be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement and the
Supplement.
(xi) There are no legal or governmental
proceedings pending, or to the knowledge of the
Transferor threatened, to which the Transferor is a party
or of which any of its property is the subject, other
than proceedings which are not reasonably expected,
individually or in the aggregate, to have a material
adverse effect on the shareholder's equity or
consolidated financial position of such person
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and its subsidiaries taken as a whole, or which would
have a material adverse effect upon the consummation of
this Agreement.
(xii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is an independent
public accountant with respect to the Transferor.
(xiii) No consent, approval, authorization,
order, registration, filing, qualification, license or
permit of or with any court or governmental agency or
body of the United States is required for the issue and
sale of the Certificates, or the consummation by the
Transferor of the other transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the
Supplement, the Loan Agreement, or the Depository
Agreement, except for (A) the registration under the Act
of the Certificates, (B) such consents, approvals,
authorizations, orders, registrations, qualifications,
licenses or permits as have been obtained or as may be
required under State securities or Blue Sky laws, or the
laws of any foreign jurisdiction, in connection with the
purchase of the Certificates and the subsequent
distribution of the Certificates by the Underwriters or
(C) where the failure to obtain such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a
material adverse effect on the business or consolidated
financial condition of the Transferor and its
subsidiaries taken as a whole or the Transferor or the
transactions contemplated by such agreements.
(xiv) The Transferor will not conduct its
operations while any of the Certificates are outstanding
in a manner that would require the Transferor or the
Trust to be registered as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940
Act") as in effect on the date hereof.
(b) Any certificate signed by an officer on behalf of the
Transferor and delivered to the Underwriters or counsel for the
Underwriters in connection with an offering of the Certificates
shall be deemed a representation and warranty as to the matters
covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
Section 2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance
upon the covenants, representations and warranties herein set
forth, the Transferor agrees to sell to each of the Underwriters,
and each of the Underwriters agrees to purchase from the
Transferor, the Principal Amount of Class A Certificates set forth
opposite such Underwriter's name in Schedule I pursuant to the
terms of this Agreement at a purchase price equal to 99.56% of the
aggregate Principal Amount represented by the Class A
Certificates.
(b) Subject to the terms and conditions and in reliance
upon the covenants, representations and warranties herein set
forth, the Transferor agrees to sell to each of
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the Underwriters, and each of the Underwriters agrees to purchase
from the Transferor, the aggregate Principal Amount of Class B
Certificates set forth opposite such Underwriter's name in
Schedule I pursuant to the terms of this Agreement at a purchase
price equal to 99.619375% of the aggregate Principal Amount
represented by the Class B Certificates.
Section 3. Delivery and Payment.
(a) Delivery of and payment for the Certificates to be
purchased by the Underwriter in accordance with this Agreement
shall be made at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ in Chicago,
Illinois at 9:00 A.M. Chicago time on August 7, 1997, which date,
time or place may be postponed or changed by agreement between the
Representatives and the Transferor (such date and time of delivery
and payment for the Certificates being herein referred to as the
"Closing Date"). Delivery of one or more global certificates
representing the Certificates shall be made to the account of the
Underwriters against payment by the several Underwriters of the
purchase price therefor, to or upon the order of the Transferor by
one or more wire transfers in immediately available funds. The
global certificates to be so delivered shall be registered in the
name of Cede & Co., as nominee for The Depository Trust Company
("DTC"). The interests of beneficial owners of the Certificates
will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates
representing the Certificates will be available only under limited
circumstances as described in the Pooling and Servicing Agreement.
The Transferor agrees to have copies of the global
certificates or the Definitive Certificates available for
inspection, checking and packaging by the Representatives in
Chicago, Illinois, not later than 1:00 p.m., New York City time,
on the business day prior to the Closing Date.
Section 4. Offering by the Underwriters.
(a) It is understood that the Underwriters propose to
offer the Certificates for sale to the public as set forth in the
Prospectus.
(b) Each Underwriter severally represents and agrees that
(i) it has not offered or sold and, prior to the expiry of six
months from the Closing Date, will not offer or sell any
Certificates 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 purpose 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 Public
Offers of Securities Regulations 1996; (ii) it has complied and
will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation
to the Certificates in, from or otherwise involving the United
Kingdom; and (iii) it has only issued or passed on, and will only
issue or pass on, in the United Kingdom any document received by
it in connection with the issue of the Certificates, to a person
who is of a kind described in
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Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or to a person to whom
such document may otherwise lawfully be issued, distributed or
passed on.
(c) Each Underwriter, severally, represents and warrants
to the Transferor that it has not and will not use any information
that constitutes "Computational Materials", as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to
▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇ 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), with respect to the offering of
the Certificates without the prior written consent of the
Transferor to such use.
(d) Each Underwriter, severally, represents and warrants
to the Transferor that it has not and will not use any information
that constitutes "ABS Term Sheets", as defined in the commission's
No-Action Letter, dated February 17, 1995, addressed to the Public
Securities Association, with respect to the offering of the
Certificates without the prior written consent of the Transferor
to such use.
(e) Each Underwriter, severally, represents that, without
the prior written consent of the Transferor, it will not, at any
time that such Underwriter is acting as an "underwriter" (as
defined in Section 2(11) of the Act) with respect to the initial
offering of the Certificates, transfer, deposit or otherwise
convey any Certificates into a trust or other type of special
purpose vehicle that issues securities or other instruments backed
in whole or in part by, or that represents interest in, such
Certificates.
Section 5. Agreements. The Transferor covenants and agrees
with the several Underwriters that:
(a) 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 provide evidence satisfactory to the
Representatives of such timely filing. The Transferor will
promptly advise the Representatives (i) when the Registration
Statement shall have become effective, (ii) when any amendment
thereof shall have become effective, (iii) of any request by the
Commission for any amendment or supplement of the Registration
Statement or the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and
(v) of the receipt by the Transferor of any notification with
respect to the suspension of the qualification of the Certificates
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Transferor will not file any
amendment of the Registration Statement or supplement to the
Prospectus to which the Representatives reasonably object. The
Transferor will use
8
its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal
thereof.
(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 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 shall be required to notify the Representatives and
upon the Representatives' request to prepare and furnish without
charge to each Underwriter as many copies as such Underwriter may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which shall correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the Transferor will make
generally available to Certificateholders and to the
Representatives an earnings statement or statements of the Trust
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Transferor will furnish to the Representatives
and counsel for the Underwriters, without charge, signed copies of
the Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may
be required by the Act, as many copies of each Preliminary
Prospectus relating to the Certificates and the Prospectus and any
supplement thereto as the Underwriters may reasonably request.
(e) The Transferor agrees to pay all expenses incidental
to the performance of its obligations under this Agreement,
including without limitation (i) expenses of preparing, printing
and reproducing the Registration Statement, the Prospectus, this
Agreement, the Pooling and Servicing Agreement, the Supplement,
the Loan Agreement, the Depository Agreement and the Certificates,
(ii) any fees charged by any rating agency for the rating of the
Certificates, (iii) any expenses (including reasonable fees and
disbursements of counsel not to exceed $20,000) incurred by the
Underwriters in connection with qualification of the Certificates
for sale under the laws of such jurisdictions as the
Representatives designate, (iv) the fees and expenses of (A)
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ as special counsel for the Transferor, (B)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and (C) Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel
to the Collateral Interest Holder, (v) the fees and expenses of
the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the
Pooling and Servicing Agreement and the Certificates, and (vi)
fees of DTC in connection with the book-entry registration of the
Certificates (it being understood that, except as provided in this
paragraph (e) and in Sections 7 and 8 hereof, each of the
Underwriters will pay its own expenses, including the expense of
preparing, printing and reproducing this Agreement, the fees and
expenses of counsel for the Underwriters, any transfer taxes on
resale of any of the Certificates
9
by it and advertising expenses connected with any offers that the
Underwriters may make).
(f) The Transferor will take all reasonable actions
requested by the Underwriters to arrange for the qualification of
the Certificates for sale under the laws of such jurisdictions
within the United States or as necessary to qualify for the
Euroclear System or Cedel Bank, societe anonyme and as the
Representatives may designate prior to the Execution Time, will
maintain such qualifications in effect so long as required for the
distribution of the Certificates and will arrange for the
determination of the legality of the Certificates for purchase by
institutional investors.
(g) For so long as the Certificates are outstanding, the
Transferor (i) shall deliver to the Representatives by first-class
mail and as soon as practicable a copy of all reports and notices
delivered to the Trustee or the Certificateholders under the
Pooling and Servicing Agreement or the Supplement or to the
Collateral Interest Holder under the Loan Agreement, and (ii) as
promptly as available but in no event later than each Record Date,
shall give notice by facsimile, to the Representatives of the
Class A Pool Factor and Class B Pool Factor for such Record Date.
(h) For so long as the Certificates are outstanding, the
Transferor will furnish to the Representatives (i) as soon as
practicable after the end of each fiscal year, all documents
required to be distributed to Certificateholders and (ii) as soon
as practicable after filing, any other information concerning the
Transferor filed with any government or regulatory authority which
is otherwise publicly available, as the Representatives may
reasonably request.
(i) To the extent, if any, that any rating provided with
respect to the Certificates set forth in subsections 6(j) an (k)
hereof is conditional upon the furnishing of documents reasonably
available to the Transferor, the Transferor shall furnish such
documents.
(j) The Transferor, during the period when the Prospectus
is required to be delivered under the Act or the Exchange Act,
will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Act and the rules thereunder.
Section 6. Conditions of Closing; Termination of Rights
Under Section 2. The obligations of the Underwriters to purchase and pay
for the Certificates on the Closing Date shall be subject to the accuracy
of the representations and warranties of the Transferor contained herein as
of the Execution Time and as of the Closing Date, to the accuracy of the
statements of the Transferor made in any certificates delivered pursuant to
the provisions hereof, to the performance by the Transferor 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 Representatives
agree in writing to a later time, the
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Registration Statement shall have become effective not later than
12:00 Noon New York City time on the business day following the
day on which the public offering price was determined; if filing
of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus 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 threatened.
(b) The Transferor shall have delivered a certificate,
dated the Closing Date, signed by its President and Chief
Executive Officer, its Secretary or its Chief ALCO Officer to the
effect that the signer of such certificate, on behalf of the
Transferor, has carefully examined this Agreement, the Pooling and
Servicing Agreement, the Supplement, the Loan Agreement, the
Prospectus (and any supplements thereto) and the Registration
Statement, stating that:
(i) the representations and warranties of the
Transferor in this Agreement are true and correct at and
as of the date of such certificate as if made on and as
of such date (except to the extent they expressly relate
to an earlier date);
(ii) the Transferor has complied, in all
material respects, with all the agreements and satisfied
all the conditions on its part to be performed or
satisfied at or prior to the date of such certificate;
(iii) nothing has come to the attention of the
Transferor that would lead it to believe that the
Registration Statement contains any untrue statement of a
material fact or omits 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
(iv) 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 ▇▇▇▇▇▇, threatened.
(c) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel to the
Transferor, shall have delivered a favorable opinion with respect
to clauses (i), (ii), (v), (vi) and (viii) of this paragraph (c),
and ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Transferor, shall
have delivered a favorable opinion with respect to clauses (iii),
(iv), (vii) and (ix) through (xv) of this paragraph (c) (except
that, portions of the opinions provided for in clauses (xiii)
through (xv) concerning the UCC or tax laws of the State of
Louisiana shall be provided for by Jones, Walker, Waechter,
Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.) each opinion shall be dated
the Closing Date and satisfactory in form and substance to the
Representatives and counsel for the Underwriters, to the effect
that:
(i) the Transferor has been duly chartered as a
national banking association and is validly existing and
in good standing under the laws of the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, is duly qualified to do business and is in
good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases
material properties or conducts material business, and
has full power and authority to own its properties, and
to enter into and perform its obligations under the
Underwriting Agreement, the Loan Agreement, the
Depository Agreement, the Pooling and Servicing Agreement
and the Supplement and to consummate the transactions
contemplated hereby and thereby, except where failure to
have such power and authority or to be so qualified will
not have a material adverse effect on the business or
consolidated financial condition of the Transferor and
its subsidiaries taken as a whole;
(ii) the Underwriting Agreement, the Pooling and
Servicing Agreement, the Supplement, the Loan Agreement
and the Depository Agreement have been duly authorized,
executed and delivered by the Transferor;
(iii) each such agreement when executed by the
Trustee and the Collateral Interest Holder, when
required, constitutes the legal, valid and binding
agreement of the Transferor enforceable in accordance
with its terms subject, as to enforceability (A) to
applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors'
rights generally and the rights and remedies of creditors
of thrifts, savings institutions or national banking
associations, (B) to general principles of equity
(regardless of whether enforcement is sought in a
proceedings in equity or at law) and (C) with respect to
rights of indemnity under the Underwriting Agreement or
the Loan Agreement, to limitations of public policy under
applicable securities laws;
(iv) the Certificates have been duly created
and, when executed and authenticated in accordance with
the terms of the Pooling and Servicing Agreement and the
Supplement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly
issued and outstanding, enforceable in accordance with
their terms subject, as to enforceability (A) to
applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors'
rights generally and the rights and remedies of creditors
of thrifts, savings institutions or national banking
associations and (B) to general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law);
(v) neither the execution nor the delivery of
the Underwriting Agreement, the Loan Agreement, the
Depository Agreement, the Pooling and Servicing Agreement
or the Supplement nor the issuance or delivery of the
Certificates, nor the consummation of any of the
transactions contemplated herein or therein, nor the
fulfillment of the terms of the Certificates, the
Underwriting Agreement, the Loan Agreement, the
Depository Agreement, the Pooling and Servicing Agreement
or the Supplement will conflict with or violate any term
or provision of the charter or by-laws of the Transferor,
or result in a breach or violation of, or default under,
or result in the creation or imposition of any lien,
12
charge or encumbrance upon any property or assets of the
Transferor pursuant to, any material statute currently
applicable to the Transferor or any order or regulation
known to such counsel to be currently applicable to the
Transferor or any court, regulatory body, administrative
agency or governmental body having jurisdiction over the
Transferor, or the terms of any indenture or other
agreement or instrument known to such counsel to which
the Transferor, is a party or by which it or any of its
properties are bound, except where any such conflict,
breach, violation, default or encumbrance would not have
a material adverse effect on the transactions
contemplated by this Agreement;
(vi) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator with respect to the
Underwriting Agreement, the Trust, the Certificates, the
Loan Agreement, the Depository Agreement, the Pooling and
Servicing Agreement or the Supplement or any of the
transactions contemplated herein or therein or with
respect to the Transferor which, in the case of any such
action, suit or proceeding with respect to the Transferor
would have a material adverse effect on the
Certificateholders or the Trust or upon the ability of
the Transferor to perform its obligations under any of
such agreements, and there is no material contract,
franchise or document relating to the Trust or property
conveyed to the Trust which is not disclosed in the
Registration Statement or Prospectus; and the statements
included in the Registration Statement, Preliminary
Prospectus and Prospectus describing statutes (other than
those relating to tax and ERISA matters), legal
proceedings, contracts and other documents fairly
summarize the matters therein described;
(vii) the Registration Statement has become
effective under the Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424
has been made in the manner and within the time period
required by Rule 424; to the best knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no
proceedings for that purpose have been instituted or
threatened; the Registration Statement and the Prospectus
(and any supplements thereto) (other than financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements
of the Act and the rules thereunder;
(viii) no consent, approval, authorization,
order, registration, filing, qualification, license or
permit of or with any court, federal or state
governmental agency or regulatory body is required for
the Transferor to consummate the transactions
contemplated in the Underwriting Agreement, the Loan
Agreement, the Depository Agreement, the Pooling and
Servicing Agreement or the Supplement, except (A) such
consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses or
permits as have been made or obtained or as may be
required under the State securities or blue sky laws of
any jurisdiction in connection with the purchase of the
Certificates by the
13
Underwriters and the subsequent distribution of the
Certificates by the Underwriters or (B) where the failure
to have such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses or
permits would not have a material adverse effect on the
Trust's interests in the Receivables or the transactions
contemplated by such agreements;
(ix) the Certificates, the Underwriting
Agreement, the Loan Agreement, the Pooling and Servicing
Agreement and the Supplement conform in all material
respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(x) neither the Pooling and Servicing Agreement
nor the Supplement will be required to be qualified under
the Trust Indenture Act of 1939;
(xi) the statements in the Registration
Statement under the heading "Certain Legal Aspects of the
Receivables" to the extent that they constitute
statements of matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such
counsel or attorneys under the control of such counsel
and are correct in all material respects;
(xii) the Trust is not required to be registered
as an "investment company" under the 1940 Act;
(xiii) the assignment of the Receivables, all
documents and instruments relating thereto and all
proceeds thereof to the Transferor pursuant to the
Pooling and Servicing Agreement, either (A) vests in the
Trustee all right, title and interest of the Transferor
in and to the Receivables, free and clear of any liens,
security interests or encumbrances that have been
perfected or are known to such counsel except as
specifically permitted pursuant to the Pooling and
Servicing Agreement and the Supplement or (B) in the
event that a court were to conclude that such assignment
was not a sale pursuant to the Pooling and Servicing
Agreement and the Supplement, as the case may be, the
transactions provided for by the Pooling and Servicing
Agreement and the Supplement, as the case may be, would
constitute a grant of a valid security interest and,
together with the filing of the financing statements in
the State of Louisiana, create a first priority perfected
security interest within the meaning of Article 9 of the
Uniform Commercial Code in the Receivables and all
proceeds thereof (in rendering such opinion, counsel may
take such exceptions as are appropriate and reasonably
acceptable under the circumstances);
(xiv) No other filings or other actions, with
respect to the Trustee's interest in the Receivables, are
necessary to perfect the interest of the Trustee in the
Receivables, and proceeds thereof, against third parties,
except that appropriate continuation statements must be
filed in accordance with the applicable state's
requirements, which is presently at least every five
years; and
14
(xv) the statements in the Registration
Statement and Prospectus under the heading "Tax Matters"
accurately describe the material Federal, tax
consequences to holders of the Certificates and the
statements under the heading "ERISA Considerations", to
the extent that they constitute statements of matters of
law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately
describe the material consequences to holders of the
Certificates under ERISA.
In rendering such opinion, counsel may rely (A) as to
matters involving the application of the law of any jurisdiction other than
the State of New York and the United States Federal laws, to the extent
deemed proper and stated in such opinion, upon the opinion of other counsel
of good standing believed by such counsel to be reliable and acceptable to
you and your counsel, and (B) as to matters of fact, to the extent deemed
proper and as stated therein, on certificates of responsible officers of
the Trust, the Transferor and public officials. References to the
Prospectus in this paragraph (c) include any supplements thereto.
The opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ shall also contain a
statement (which may be subject to customary qualifications) to the effect
that such firm has no reason to believe that at the Effective Date the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (and any supplements thereto) includes any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein in light of the circumstances under which they were
made, not misleading (in each case, other than financial and statistical
information contained therein as to which such counsel need express no
view).
(d) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, shall have delivered a favorable opinion dated the
Closing Date with respect to the validity of the Certificates, the
Underwriting Agreement, the Pooling and Servicing Agreement, the
Supplement, the Registration Statement, the Prospectus and such
other related matters as the Representatives may reasonably
require and the Transferor shall have furnished to such counsel
such documents as they reasonably request for the purpose of
enabling them to pass on such matters. In giving their opinion,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may rely (i) as to matters of
Louisiana law upon the opinions of counsel delivered pursuant to
subsection (c) above, (ii) as to matters involving the application
of laws of any jurisdiction other than the State of New York and
the United States Federal laws, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable, and (iii) as to matters of
fact, to the extent deemed proper and as stated therein on
certificates of responsible officers of the Trust, the Transferor
and public officials.
(e) The Loan Agreement shall have been duly authorized,
executed and delivered by the Collateral Interest Holder; all fees
then due and payable to the Collateral Interest Holder shall have
been paid in full at or prior to the Closing Date, as the case may
be; and the Loan Agreement shall conform in all material respects
to the respective descriptions thereof in the Registration
Statement and the Prospectus.
15
(f) Counsel to the Collateral Interest Holder shall have
delivered a favorable opinion, dated the Closing Date, and
satisfactory in form and substance to the Representatives, counsel
for the Underwriters, the Transferor and their counsel.
(g) At the Execution Time and at the Closing Date, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP shall have furnished to the Representatives a letter
or letters, dated respectively as of the date of this Agreement
and the date of the Closing Date, in form and substance
satisfactory to the Representatives and counsel for the
Underwriters, confirming that they are (i) independent public
accountants within the meaning of the Act, the Exchange Act and
the rules and regulations promulgated thereunder and stating in
effect that they have performed certain specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Transferor) set forth in the
Registration Statement and the Prospectus (and any supplements
thereto), agrees with the accounting records of the Transferor,
excluding any questions of legal interpretation, and (ii) they
have performed certain specified procedures with respect to the
computer programs used to select the Eligible Accounts and to
generate information with respect to the Accounts set forth in the
Registration Statement and the Prospectus (and any supplements
thereto).
(h) The Representatives shall receive evidence
satisfactory to it that, on or before the Closing Date, UCC-1
financing statements are being filed in the office of the
Secretary of State of the State of Louisiana reflecting the
interest of the Trust in the Receivables and the proceeds thereof.
(i) Counsel to the Trustee shall have delivered a
favorable opinion, dated the Closing Date, and satisfactory in
form and substance to the Representatives and counsel for the
Underwriters, the Transferor and their counsel, to the effect
that:
(i) the Trustee has been duly incorporated and
is validly existing and in good standing as a national
banking association under the laws of the United States,
is duly qualified to do business in all jurisdictions
where the nature of its operations as contemplated by the
Pooling and Servicing Agreement, the Supplement and the
Loan Agreement requires such qualifications, and has the
power and authority (corporate and other) to issue, and
to take all action required of it under, the Pooling and
Servicing Agreement, the Supplement and the Loan
Agreement;
(ii) the execution, delivery and performance by
the Trustee of the Pooling and Servicing Agreement, the
Supplement and the Loan Agreement and the issuance of the
Certificates by the Trustee have been duly authorized by
all necessary corporate action on the part of the
Trustee, and under present laws do not and will not
contravene any law or governmental regulation or order
presently binding on the Trustee or the charter or the
by-laws of the Trustee or contravene any provision of or
constitute a default under any indenture, contract or
other instrument to which the Trustee is a party or by
which the Trustee is bound;
16
(iii) the execution, delivery and performance by
the Trustee of the Pooling and Servicing Agreement, the
Supplement and the Loan Agreement and the issuance of the
Certificates by the Trustee do not require the consent or
approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of any
Federal, state or other governmental agency or authority
which has not previously been effected;
(iv) each of the Certificates has been duly
authenticated and delivered by the Trustee and each of
the Pooling and Servicing Agreement, the Supplement and
the Loan Agreement constitute legal, valid and binding
agreements of the Trustee, enforceable against the
Trustee in accordance with its terms (subject to
applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally); 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 Illinois 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, the
Supplement and the Loan Agreement or the performance by
the Trustee of the terms of the Pooling and Servicing
Agreement, the Supplement and the Loan Agreement.
(j) The Class A Certificates shall be given the highest
investment grade rating by both ▇▇▇▇▇'▇ Investors Service, Inc.
("▇▇▇▇▇'▇"), and Standard & Poor's Corporation ("S&P") and neither
▇▇▇▇▇'▇ nor S&P shall have placed the Class A Certificates under
review with possible negative implications.
(k) The Class B Certificates shall be rated at least "A"
or its equivalent by both Moody's and S&P and neither Moody's nor
S&P shall have placed the Class B Certificates under review with
possible negative implications.
(l) 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 or the Transferor, the effect
of which, in any case referred to above, is, in the judgment of
the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Certificates as contemplated by the Registration
Statement and the Prospectus.
(m) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto
shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, and the
Representatives and counsel for the Underwriters shall have
received such information, certificates and documents as the
Representatives or counsel for the Underwriters may reasonably
request.
17
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 and certificates mentioned
above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Representatives and the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Trustee and the Transferor in writing or
by telephone or facsimile confirmed in writing.
Section 7. Reimbursement of Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition
to the Representatives' obligations set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Trustee or
the Transferor to perform any agreement herein or comply with any provision
hereof other than by reason of a default by the Representatives or the
Underwriters, the Transferor will reimburse the Underwriters severally upon
demand for all reasonable 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 Certificates.
Section 8. Indemnification and Contribution.
(a) Indemnification of Underwriters. The Transferor
agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereof),
including the Rule 430A Information or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Prospectus or the
Prospectus (or any supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 8(d)
below) (A) any such settlement is effected with the written
consent of the Transferor and (B) it is understood that any such
amounts paid in settlement are covered only by this clause (ii)
and not by clause (i) or clause (iii); and
18
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (x) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Transferor by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) and (y) such indemnity with respect to
any untrue statement or omission in the Preliminary Prospectus or the
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Certificates which are the subject
thereof if such person was not sent a copy of the Prospectus (or the
Prospectus as supplemented) at or prior to the confirmation of the sale of
such Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in any Preliminary Prospectus was corrected in the Prospectus (or
the Prospectus as supplemented).
(b) Indemnification of Transferor, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless
the Transferor, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Transferor within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Transferor by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions Against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably practicable
to each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
any proceeding hereunder any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the contrary, (ii)
the indemnifying party has failed within a reasonable time to retain
19
counsel reasonably satisfactory to the indemnified party or (iii) the named
parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified 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 to those available to the indemnifying party, in which case,
if such indemnified party notifies such indemnifying party in writing that
it elects to employ separate counsel at the expense of such indemnifying
party, such indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party (it being
understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for all indemnified parties, which firm shall be
designated in writing by the Representative, if the indemnified parties
under this Section 8 consist of any Underwriter or any of their respective
officers, employees or controlling persons, or by the Transferor, if the
indemnified parties under this Section 8 consist of the Transferor or the
Transferor's directors, officers, employees or controlling persons). It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm
for the parties indemnified pursuant to Section 8(a) above shall be
designated in writing by the Representatives, and any such separate firm
for the parties indemnified pursuant to Section 8(b) above shall be
designated in writing by the Transferor. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) Settlement without Consent if Failure to Reimburse.
If any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, an indemnifying
party shall not be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its consent if such indemnifying party
(i) reimburses such indemnified party in accordance with such request to
the extent it considers such request to be reasonable and (ii) provides
written notice to the indemnified party substantiating the unpaid balance
as unreasonable, in each case prior to the date of such settlement.
20
(e) Contribution. If the indemnification provided for in
this Section 8 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 Transferor on the one hand and the
Underwriters on the other from the offering of the 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 Transferor on the one
hand and the Underwriters 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 Transferor
on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Transferor
bears to the total underwriting discounts and commissions received
by the Underwriters. 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 Transferor or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The
Transferor and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (d). 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 legal or
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 subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which
the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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.
Section 9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Certificates
agreed to be purchased by such Underwriter or Underwriters hereunder on the
Closing Date and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Certificates set forth opposite
their names in Schedule I with respect to the Closing Date hereto bears to
the aggregate amount of Certificates set forth opposite the names of all
the remaining Underwriters) the Certificates which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the
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aggregate amount of Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Certificates set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Certificates, and if such
nondefaulting Underwriters do not purchase all the Certificates, the
obligations will terminate without liability of any nondefaulting
Underwriter, the Trust, or the Transferor. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Underwriters
shall determine in order that the required changes in the Registration
Statement and the Prospectus or in any other documents or arrangements may
be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Transferor and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
Section 10. Termination.
(a) Termination; General. The Representatives may
terminate this Agreement, by notice to the Transferor, at any time after
the execution of this Agreement and at or prior to Closing Time (i) if
there has been any material adverse change in or affecting particularly the
business or properties of the Transferor which materially impairs the
investment quality of the Certificates or makes it impractical or
inadvisable to market the Certificates on the terms and in the manner
contemplated in the Prospectus, or (ii) if there has occurred any material
adverse change in the financial markets of the United States, any outbreak
of hostilities or escalation thereof or other calamity or crisis or change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale
of the Securities, or (iii) if trading in any securities of the Transferor
has been suspended or materially limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or
in the NASDAQ Stock Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant
to this Section, such termination shall be without liability of any party
to any other party except as provided in Section 7 hereof, and provided
further that Sections 1, 10 and 11 shall survive such termination and
remain in full force and effect.
Section 11. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and
other statements of the Trust, the Transferor or the officers of each 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 the Underwriters or the Trust, the
Transferor or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment
22
for the 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 the
Representatives at ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
World Financial Center, 10281, Attention: General Counsel; if sent to the
Transferor, will be mailed, delivered or telegraphed and confirmed to them
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention
of Chief Administrative Officer of First Commerce Corporation.
SECTION 13. APPLICABLE LAW. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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. Counterparts. This Agreement may be executed
by one or more parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
Section 16. Miscellaneous. This Agreement supersedes all
prior agreements and understandings relating to the subject matter hereof.
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.
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If you are in agreement with the foregoing, please sign
and return one to the Transferor whereupon this letter and your acceptance
shall become a binding agreement among the Transferor and the several
Underwriters.
Very truly yours,
FIRST NATIONAL BANK OF COMMERCE
By:________________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed and
accepted as of the date hereof.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:______________________
Name:
Title:
For themselves and the other Several Underwriters named in
Schedule I to the foregoing Agreement.
Schedule I
CLASS A CERTIFICATES
Principal
Amount
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.............................. $ 64,875,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. .................................................... 64,875,000
▇▇▇▇▇▇ Brothers Inc............................................................. 64,875,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .............................................. 64,875,000
------------
Total............................................................... $259,500,000
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CLASS B CERTIFICATES
Principal
Amount
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.............................. $21,000,000
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