FIRST NATIONAL BANK OF COMMERCE
First NBC Credit Card Master Trust
$___________ [Floating Rate] [_____%] Class A
Asset Backed Certificates - Series 199[_-_]
$___________ [Floating Rate] [_____%] Class B
Asset Backed Certificates - Series 199[_-_]
FORM UNDERWRITING AGREEMENT
[___________ __], 199[__]
[Name and Address of Representatives]
Dear Sirs:
First National Bank of Commerce ("First NBC" or the "Transferor") [has
conveyed and] proposes to [further] 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") $____________ [Floating Rate] [____%] Class A Asset
Backed Certificates, Series 199[_-_] (the "Class A Certificates") and
$____________ [Floating Rate] [____%] Class B Asset Backed Certificates,
Series 199[_-_] (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, dated as of [________] __, 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 199_-_ Supplement to the Pooling and Servicing Agreement, dated as
of [________] __, 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.
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(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 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 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 proceeding 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.
(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, 199[_] and 199[_] 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 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.
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(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 [______]% 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 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 [______]% of the aggregate
Principal Amount represented by the Class B Certificates.
Section 3. Delivery and Payment.
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(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 [_________________________] 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 [________, ____________], 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.
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(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 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 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 $[________]) 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) [___________________]
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
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) and (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 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 signers 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., 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 United States, 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, 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 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
(xv) the statements in the Registration Statement and Prospectus
under the heading "Tax Matters" accurately describe the material
Federal, state and local income 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.
(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 (i)
they are 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 offices 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;
(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 Certificates and 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 ▇▇▇▇▇'▇ and S&P and neither ▇▇▇▇▇'▇ 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.
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 Certi-
ficates 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
(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 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. 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.
(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 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.
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(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 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
____________________________________________________; 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.
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.
[REPRESENTATIVE]
[------------------------]
By: [REPRESENTATIVE]
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
---------
[------------------------------] $[------------]
[------------------------------] [------------]
-----------
$[------------]
CLASS B CERTIFICATES
--------------------
Principal
Amount
---------
[-----------------------------] $[-------------]
[-----------------------------] [-------------]
-----------
$[-------------]