EXHIBIT 1.1
[Form of Underwriting Agreement]
Fleet Credit Card Master Trust II
$__________ Class A [Floating Rate] [__%]
Certificates, Series 200_-_
$__________ Class B [Floating Rate] [__%]
Certificates, Series 200_-_
FLEET BANK (RI), NATIONAL ASSOCIATION
(AS ACCOUNT OWNER AND AS SERVICER)
FLEET CREDIT CARD FUNDING TRUST
(AS TRANSFEROR)
UNDERWRITING AGREEMENT
--------------------------------
as Representative
(the "Representative") of the
Underwriters set forth herein
--------------------------------
Ladies and Gentlemen:
1. Introductory. Fleet Credit Card Funding Trust, a Delaware business
trust ("FCCF") proposes to cause $___________ aggregate principal amount of
Class A [Floating Rate] [__%] Asset-Backed Certificates, Series 200_-_ (the
"Class A Certificates"), $____________ aggregate principal amount of Class B
[Floating Rate] [__%] Asset-Backed Certificates, Series 200_-_ (the "Class B
Certificates, and together with the Class A Certificates, the "Certificates")
and a $___________ Collateral Interest, Series 200_-_ (the "Collateral
Interest") to be issued under an Amended and Restated Pooling and Servicing
Agreement dated as of December 1, 1993 (as amended and restated as of January 1,
2002, the "Amended and Restated Pooling and Servicing Agreement"), among FCCF,
as Transferor, Fleet Bank (RI), National Association, a national banking
association (the "Bank"), as Servicer and Bankers Trust Company, as Trustee (the
"Trustee") as supplemented by the Series 200_-_ Supplement with respect to the
Certificates to be dated as of __________ __, 200_ (the "Series Supplement" and
together with the Amended and Restated Pooling and Servicing Agreement, the
"Pooling and
Servicing Agreement"). To the extent not defined herein, capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The assets of the Trust will include, among other things, certain
amounts due (the "Receivables") with respect to a pool of VISA and MasterCard
credit card accounts owned by the Bank and designated to the Trust (the
"Accounts"), and recoveries on Defaulted Receivables.
FCCF and the Bank have entered into a Receivables Purchase Agreement
dated as of January 1, 2002 (the "Receivables Purchase Agreement") pursuant to
which the Bank has sold to FCCF all of the Bank's right, title and interest in
the Receivables existing or arising in the Accounts.
FCCF and the Bank each hereby agrees with the underwriters for the
Class A Certificates listed on Schedule A hereto (the "Class A Underwriters")
and the underwriters for the Class B Certificates listed on Schedule A hereto
(the "Class B Underwriters," and together with the Class A Underwriters, the
"Underwriters") as follows:
2. Representations and Warranties of FCCF. FCCF represents and warrants
to, and agrees with, the Underwriters that:
(a) FCCF is a business trust duly formed and validly existing
in good standing under the laws of the State of Delaware and has all
requisite power, authority and legal right to own its property and
conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement, the Certificates, the Receivables
Purchase Agreement and the Pooling and Servicing Agreement.
(b) The execution and delivery by FCCF of this Agreement, the
Certificates, the Series Supplement, the Receivables Purchase Agreement
and the Amended and Restated Pooling and Servicing Agreement, the
incurrence by FCCF of the obligations herein and therein set forth and
the consummation by FCCF of the transactions contemplated hereunder and
thereunder have been duly authorized by FCCF by all necessary action on
the part of FCCF.
(c) This Agreement has been duly authorized, executed and
delivered by FCCF.
(d) The Series Supplement will be executed and delivered by
FCCF on or before the Closing Date, and when executed and delivered by
the other parties thereto, will constitute a valid and binding
agreement of FCCF, enforceable against FCCF in accordance with its
terms, and the Receivables Purchase Agreement and the Amended and
Restated Pooling and Servicing Agreement each as previously executed
and delivered by FCCF, each constitute a valid and binding agreement of
FCCF, enforceable against FCCF, each in accordance with its terms,
except, in each case, to the extent that (i) the enforceability thereof
may be subject to insolvency, reorganization, moratorium, receivership
or other similar laws now or hereafter in effect relating to creditors
or other
2
obligees' rights generally, (ii) the enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity) and (iii) certain remedial provisions of the Receivables
Purchase Agreement and the Amended and Restated Pooling and Servicing
Agreement may be unenforceable in whole or in part under the UCC, but
the inclusion of such provisions does not render the other provisions
of the Receivables Purchase Agreement or the Amended and Restated
Pooling and Servicing Agreement invalid and, notwithstanding that such
provisions may be unenforceable in whole or in part, the Trustee will
be able to enforce the remedies of a secured party under the UCC.
(e) The Certificates will be issued pursuant to the terms of
the Pooling and Servicing Agreement and, when executed by FCCF and
authenticated by the Trustee in accordance with the Pooling and
Servicing Agreement and delivered pursuant to this Agreement, will be
validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement. The Certificates will be in all
material respects in the form contemplated by the Pooling and Servicing
Agreement and will conform to the description thereof contained in the
Prospectus and the Registration Statement, as amended or supplemented.
(f) FCCF is not in violation of any Requirement of Law or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease or other instrument to which
it is a party or by which it is bound or to which any of its property
is subject, which violations or defaults separately or in the aggregate
would have a material adverse effect on FCCF or the Trust.
(g) Neither the issuance and sale of the Certificates, nor the
execution and delivery by the FCCF of this Agreement or the
Certificates, nor the incurrence by FCCF of the obligations herein and
therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment by FCCF of
the terms hereof or thereof does or will (i) violate any Requirement of
Law presently in effect, applicable to it or its properties or by which
it or its properties are or may be bound or affected, (ii) conflict
with, or result in a breach of, or constitute a default under, any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other instrument to which it is a party or by which it or its
properties are bound, or (iii) result in the creation or imposition of
any Lien upon any of its property or assets, except for those
encumbrances created under the Pooling and Servicing Agreement.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body
required in connection with the execution and delivery by FCCF of this
Agreement, the Certificates, the Receivables Purchase Agreement or the
Pooling and Servicing Agreement, or to the consummation by FCCF of the
transactions contemplated hereunder and thereunder, or to the
fulfillment by FCCF of the terms hereof and thereof have been or will
have been obtained on or before the Closing Date.
3
(i) All actions required to be taken by FCCF as a condition to
the offer and sale of the Certificates as described herein or the
consummation by FCCF of any of the transactions described in the
Prospectus and the Registration Statement have been or, prior to the
Closing Date, will be taken.
(j) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939.
(k) The representations and warranties made by FCCF in the
Pooling and Servicing Agreement and made in any Officer's Certificate
of FCCF delivered pursuant to the Pooling and Servicing Agreement were
true and correct at the time made and will be true and correct on and
as of the Closing Date as if set forth herein.
(l) The Receivables (including Receivables in the Additional
Accounts, the Receivables of which have been or are expected to be
conveyed to the Trustee during the period from _____________ through
the Closing Date) had an aggregate outstanding balance determined as of
_______________ in the amount set forth in the Prospectus.
(m) FCCF agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any
Person a security interest in, or any other right, title or interest
in, the Receivables, except as provided in the Pooling and Servicing
Agreement, and agrees to take all action required by the Pooling and
Servicing Agreement in order to maintain the security interest in the
Receivables granted pursuant to the Pooling and Servicing Agreement.
(n) A registration statement on Form S-3 (Nos. 333-_________
and 333-________), including a form of prospectus and such amendments
thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed
with, and has been declared effective by, the Securities and Exchange
Commission (the "Commission"). If any post-effective amendment to such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such
amendment has been declared effective by the Commission. For purposes
of this Agreement, "Effective Time" means the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission,
and "Effective Date" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, is
hereinafter referred to as the "Registration Statement." FCCF proposes
to file with the Commission pursuant to Rule 424(b) ("Rule 424(b)")
under the Act a supplement (the "Prospectus Supplement") to the
prospectus included in the Registration Statement (such prospectus, in
the form it appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule 424(b),
is hereinafter referred to as the "Base Prospectus") relating to the
Certificates and the method of distribution thereof. The Base
Prospectus and the Prospectus Supplement, together with any amendment
thereof or supplement thereto, are hereinafter referred to as the
"Prospectus". For purposes of this Agreement, "Certificate Term Sheet"
means that
4
certain term sheet dated as of _________ __, 200_ and delivered by FCCF
to each Underwriter, which term sheet has been or will be filed by FCCF
on a Form 8-K in accordance with all applicable no-action letters, as
published by the Commission.
(o) On the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "Rules and
Regulations") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the
date of this Agreement, the Registration Statement and the Prospectus
conform, and at the time of filing of the Prospectus pursuant to Rule
424(b), the Registration Statement and the Prospectus will conform in
all respects with the requirements of the Act and the Rules and
Regulations and neither of such documents includes, or will include,
any untrue statement of a material fact, and such documents do not
omit, and will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in
or omissions from such documents based upon written information
furnished to FCCF or to the Bank by the Underwriters specifically for
use therein. FCCF hereby acknowledges that (i) the only information
provided by the Class A Underwriters for inclusion in the Registration
Statement, the Certificate Term Sheet and the Prospectus is set forth
on the cover page of the Prospectus Supplement in the table under the
heading "Class A Certificates" and on the line across from "Price to
public per certificate," in the last sentence under the caption "Risk
Factors' Ability to Resell Series 200_-_ Certificates Not Assured" in
the Prospectus Supplement, in the table listing the Class A
Underwriters and the Principal Amount of Class A Certificates and in
the paragraph immediately following such table under "Underwriting" in
the Prospectus Supplement and in the final paragraph under
"Underwriting" in the Prospectus Supplement (the "Class A Underwriters'
Information"); and (ii) the only information provided by the Class B
Underwriters for inclusion in the Registration Statement, the
Certificate Term Sheet and the Prospectus is set forth on the cover
page of the Prospectus Supplement in the table under the heading "Class
B Certificates" and on the line across from "Price to public per
certificate," in the last sentence under the caption "Risk Factors'
Ability to Resell Series 200_-_ Certificates Not Assured" in the
Prospectus Supplement, in the table listing the Class B Underwriters
and the Principal Amount of Class B Certificates and in the paragraph
immediately following such table under "Underwriting" in the Prospectus
Supplement and in the final paragraph under "Underwriting" in the
Prospectus Supplement (the "Class B Underwriters' Information").
(p) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of FCCF, taken as a whole, from _________, 200_.
5
3. Representations and Warranties of the Bank. The Bank represents and
warrants to, and agrees with, the Underwriters that:
(a) The Bank is a national banking association duly organized
and validly existing in good standing under the laws of the United
States, and has all requisite corporate power, authority and legal
right to own its property and conduct its credit card business as such
properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under
this Agreement, the Receivables Purchase Agreement and the Pooling and
Servicing Agreement.
(b) The execution and delivery by the Bank of this Agreement,
the Receivables Purchase Agreement, the Amended and Restated Pooling
and Servicing Agreement and the Series Supplement, the incurrence by
the Bank of the obligations herein and therein set forth and the
consummation by the Bank of the transactions contemplated hereunder and
thereunder have been duly authorized by the Bank by all necessary
action on the part of the Bank.
(c) This Agreement has been duly authorized, executed and
delivered by the Bank.
(d) The Series Supplement will be executed and delivered by
the Bank on or before the Closing Date, and when executed and delivered
by the other parties thereto, will constitute a valid and binding
agreement of the Bank, enforceable against the Bank in accordance with
its terms, and the Receivables Purchase Agreement and the Amended and
Restated Pooling and Servicing Agreement each as previously executed
and delivered by the Bank each constitute a valid and binding agreement
of the Bank, enforceable against the Bank, each in accordance with its
terms, except, in each case, to the extent that (i) the enforceability
thereof may be subject to insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect relating
to creditors' or other obligees' rights generally or the rights of
creditors or other obligees insured by the FDIC, (ii) the
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity) and (iii) certain remedial
provisions of the Receivables Purchase Agreement and of the Amended and
Restated Pooling and Servicing Agreement may be unenforceable in whole
or in part under the UCC, but the inclusion of such provisions does not
render the other provisions of the Receivables Purchase Agreement or
the Amended and Restated Pooling and Servicing Agreement invalid and,
notwithstanding that such provisions may be unenforceable in whole or
in part, the Trustee will be able to enforce the remedies of a secured
party under the UCC.
(e) The Bank is not in violation of any Requirement of Law or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
instrument to which it is a party or by which it is bound or to which
any of its property is subject, which violations or defaults separately
or in the aggregate would have a material adverse effect on the Bank,
the Accounts or the Receivables.
6
(f) Neither the execution and delivery by the Bank of this
Agreement, nor the incurrence by the Bank of the obligations herein set
forth, nor the consummation by the Bank of the transactions
contemplated hereunder, nor the fulfillment by the Bank of the terms
hereof does or will (i) violate any Requirement of Law presently in
effect, applicable to it or its properties or by which it or its
properties are or may be bound or affected, (ii) conflict with, or
result in a breach of, or constitute a default under, any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other instrument to which it is a party or by which it or its
properties are bound, or (iii) result in the creation or imposition of
any Lien upon any of its property or assets, except for those
encumbrances created under the Receivables Purchase Agreement.
(g) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body
required in connection with the execution and delivery by the Bank of
this Agreement, the Receivables Purchase Agreement or the Pooling and
Servicing Agreement, or to the consummation by the Bank of the
transactions contemplated hereunder and thereunder, or to the
fulfillment by the Bank of the terms hereof and thereof have been or
will have been obtained on or before the Closing Date.
(h) All actions required to be taken by the Bank as a
condition to the offer and sale of the Certificates as described herein
or the consummation of any of the transactions described in the
Prospectus and the Registration Statement have been or, prior to the
Closing Date, will be taken.
(i) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939.
(j) The representations and warranties made by the Bank in the
Receivables Purchase Agreement and those made by the Bank in the
Pooling and Servicing Agreement and made in any Officer's Certificate
of the Bank delivered pursuant to the Receivables Purchase Agreement or
pursuant to the Pooling and Servicing Agreement were true and correct
at the time made and will be true and correct on and as of the Closing
Date as if set forth herein.
(k) The Receivables (including Receivables in the Additional
Accounts, the Receivables of which have been or are expected to be
conveyed to FCCF during the period from ___________ through the Closing
Date) had an aggregate outstanding balance determined as of
_____________ in the amount set forth in the Prospectus.
(l) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any
Person a security interest in, or any other right, title or interest
in, the Receivables, except as provided in the Receivables Purchase
Agreement, and agrees to take all action required by the Receivables
Purchase Agreement in order to maintain the security interest in the
Receivables granted pursuant to the Receivables Purchase Agreement.
7
(m) On the date of this Agreement and at the time of filing of
the Prospectus pursuant to Rule 424(b), the Prospectus does not include
and will not include, any untrue statement of a material fact, and the
Prospectus does not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to
statements in or omissions from such documents based upon the Class A
Underwriters Information or the Class B Underwriters Information.
(n) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Bank or its subsidiaries, taken as a whole, from
___________.
4. Purchase, Sale, Payment and Delivery of the Certificates.
(a) On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, FCCF agrees to sell to the Class A
Underwriters, and the Class A Underwriters agree to purchase from FCCF,
at a purchase price of _________% of the principal amount thereof,
$___________ aggregate principal amount of the Class A Certificates,
each Class A Underwriter to purchase the amounts shown on Schedule A
hereto.
(b) On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, FCCF agrees to sell to the Class B
Underwriters, and the Class B Underwriters agree to purchase from FCCF,
at a purchase price of ________% of the principal amount thereof,
$___________ aggregate principal amount of the Class B Certificates,
each Class B Underwriter to purchase the amounts shown on Schedule A
hereto.
(c) FCCF will deliver the Certificates to you against
payment of the purchase price in immediately available funds, drawn to
the order of FCCF, at the office of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
in New York, New York at 10:00 A.M., New York City time, on _________
__, 200_, or at such other time not later than seven full business days
thereafter as you and FCCF determine, such time being herein referred
to as the "Closing Date." Each of the Class A Certificates and the
Class B Certificates so to be delivered shall be represented by one or
more definitive certificates registered in the name of Cede & Co., as
nominee for The Depository Trust Company. FCCF shall make such
definitive certificates representing the Class A Certificates and the
Class B Certificates available for inspection by the Underwriters at
the office at which the Certificates are to be delivered no later than
five hours before the close of business in New York City on the
business day prior to the Closing Date.
5. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Certificates for sale to the public
(which may include selected dealers) as set forth in the Prospectus.
8
6. Certain Agreements of FCCF. FCCF agrees with the Underwriters that:
(a) Immediately following the execution of this
Agreement, FCCF will prepare a Prospectus Supplement setting forth the
amount of Certificates covered thereby and the terms thereof not
otherwise specified in the Base Prospectus, the price at which such
Certificates are to be purchased by the Underwriters, the initial
public offering price, the selling concessions and allowances, and such
other information as FCCF deems appropriate. FCCF will transmit the
Prospectus, including such Prospectus Supplement, to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in
filing with the Commission pursuant to Rule 424(b). FCCF will also file
the Certificate Term Sheet with the Commission on Form 8-K within the
time periods prescribed by the Commission's No-Action Letter, dated
April 5, 1996, addressed to Greenwood Trust Company and the
Commission's No-Action Letters referred to in Section 11 hereof. FCCF
will not file any amendment of the Registration Statement with respect
to the Certificates or supplement to the Prospectus unless a copy has
been furnished to you for your review a reasonable time prior to the
proposed filing thereof or to which you shall reasonably object in
writing. FCCF will advise you promptly of (i) the effectiveness of any
amendment or supplementation of the Registration Statement or the
Prospectus, (ii) any request by the Commission for any amendment or
supplementation of the Registration Statement or the Prospectus or for
any additional information, (iii) the receipt by FCCF of any
notification with respect to the suspension of qualification of the
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes and (iv) the
institution by the Commission of any stop order proceeding in respect
of the Registration Statement, and will use their best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If at any time when a prospectus relating to the
Certificates is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
FCCF promptly will notify the Representative of such event and promptly
will prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 8 of
this Agreement.
(c) As soon as practicable, FCCF will cause the Trust
to make generally available to the Certificateholders an earnings
statement or statements of the Trust covering a period of at least 12
months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
9
(d) FCCF will furnish to you copies of the
Registration Statement (one of which will be signed and will include
all exhibits), the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such
quantities as you reasonably request.
(e) FCCF will endeavor to qualify the Certificates
for sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and the determination of the eligibility
for investment of the Certificates under the laws of such jurisdictions
as you may designate and will continue such qualifications in effect so
long as required for the distribution of the Certificates; provided,
however, that FCCF shall not be obligated to qualify to do business in
any jurisdiction where such qualification would subject FCCF to general
or unlimited service of process in any jurisdiction where it is not now
so subject.
(f) So long as any Certificate is outstanding, FCCF
will furnish to you, by first-class mail as soon as practicable (i) all
documents concerning the Certificates distributed by FCCF to the
Certificateholders, or filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii)
any order of the Commission under the Act or the Exchange Act
applicable to the Trust or to FCCF as originator of the Trust, or
pursuant to a "no-action" letter obtained from the staff of the
Commission by FCCF and affecting the Trust or FCCF as originator of the
Trust and (iii) from time to time, such other information concerning
the Trust as you may reasonably request.
7. Certain Agreements of the Bank and FCCF. The Bank and FCCF agree
with the Underwriters that:
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated for any
reason, except a default by you hereunder, each of the Bank and FCCF
will pay all expenses incident to the performance of its obligations
under this Agreement (except as otherwise agreed in writing between the
Bank and the Representatives of the Underwriters) and will reimburse
the Underwriters for any expenses incurred by them in connection with
qualification of the Certificates for sale and determination of the
eligibility of the Certificates for investment under the laws of such
jurisdictions as you designate and for any fees charged by investment
rating agencies for the rating of the Certificates and for any filing
fee of the National Association of Securities Dealers, Inc. relating to
the Certificates, except that mailing expenses incurred in distributing
the Prospectus, other than in connection with an amendment or
supplement thereto, shall be borne by the Underwriters. FCCF, the Bank
and the Underwriters will each bear their own respective fees and
disbursements of counsel (which in the case of the FCCF will include
all legal fees relating to Blue Sky matters).
(b) To the extent, if any, that any of the ratings provided
with respect to the Certificates by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), Fitch, Inc. ("Fitch") or Standard & Poor's Ratings
Services ("S&P") are conditional upon the furnishing of
10
documents or the taking of any other actions by the Bank or by FCCF,
the Bank or FCCF, as appropriate, shall furnish such documents and take
any such other actions.
(c) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank, as long as it is the
Servicer, will furnish to you copies of each certificate and the annual
statements of compliance delivered to the Trustee pursuant to Article
III of the Amended and Restated Pooling and Servicing Agreement and the
annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to Article III of the Amended and
Restated Pooling and Servicing Agreement, by first-class mail as soon
as practicable after such certificates, statements and reports are
furnished to the Trustee.
8. Conditions of the Obligations of the Underwriters. The obligation of
the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of
FCCF and of the Bank herein, to the accuracy of the statements of officers of
FCCF and of the Bank made pursuant to the provisions hereof, to the performance
by FCCF and by the Bank of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the Closing Date, you shall have received a
letter of PricewaterhouseCoopers LLP, confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder, substantially in
the form heretofore agreed to and otherwise in form and in substance
satisfactory to you and your counsel.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 6(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of FCCF or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of FCCF or of the Bank which,
in your judgment, materially impairs the investment quality of the
Certificates; (ii) any downgrading in the rating of any debt securities
of the Bank or FleetBoston Financial Corporation by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such
debt securities (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Bank or FleetBoston Financial
Corporation on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal, Rhode Island or New York
authorities; or (v) any outbreak or escalation of major hostilities in
11
which the United States is involved, or any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the Representative's judgment, the effect of such
occurrence or event is to make it impractical or inadvisable to proceed
with completion of the sale of and payment for the Certificates.
(d) You shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, Executive Vice President, Secretary
and General Counsel for the Bank and Vice President, Secretary and
General Counsel for FCCF, to the effect that and subject to the
qualification that with respect to matters of Delaware law, such
counsel may rely upon an opinion of special Delaware counsel:
(i) The Bank (x) has been duly chartered and is
validly existing as a national banking association under the
laws of the United States, with power and authority to own its
properties and conduct its business as described in the
Prospectus; (y) is neither required to qualify, nor to
register as a foreign corporation, in any state in order to
conduct its credit card business, except where the failure to
so qualify or register would not have a material adverse
effect upon the Certificateholders; and (z) has the power,
authority and legal right to acquire and own the Accounts and
to sell and service the Receivables;
(ii) The Bank has the power and authority to execute
and deliver this Agreement and the Series Supplement and to
consummate the transactions contemplated herein and therein
and the Bank, at the time of execution of the Receivables
Purchase Agreement and the Amended and Restated Pooling and
Servicing Agreement, had the power and authority to execute
and deliver the Receivables Purchase Agreement and the Amended
and Restated Pooling and Servicing Agreement and had and at
all times since has had and does now have the power to
consummate the transactions contemplated by the Receivables
Purchase Agreement and the Amended and Restated Pooling and
Servicing Agreement;
(iii) Each of the Receivables Purchase Agreement, the
Amended and Restated Pooling and Servicing Agreement and the
Series Supplement has been duly authorized, executed and
delivered by the Bank;
(iv) This Agreement has been duly authorized,
executed and delivered by the Bank;
(v) Each of the Receivables Purchase Agreement, the
Amended and Restated Pooling and Servicing Agreement and the
Series Supplement has been duly executed and delivered by
FCCF;
(vi) This Agreement has been duly executed and
delivered by FCCF;
(vii) The Registration Statement has become effective
under the Act and to the best of such counsel's knowledge no
stop order suspending the
12
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened under the Act;
(viii) No consent, approval, authorization or order
of, or filing of any UCC financing statements with, any court
or governmental agency or body having jurisdiction over the
Bank or FCCF is required for the consummation of the
transactions contemplated by this Agreement, the Receivables
Purchase Agreement or the Pooling and Servicing Agreement,
except for (x) filing of UCC financing statements with respect
to the transactions contemplated in the Receivables Purchase
Agreement and the Pooling and Servicing Agreement; (y) such
consents, approvals, authorizations, orders or filings as have
been obtained under the Act; and (z) such consents, approvals,
authorizations, orders or filings as may be required under the
state securities or blue sky laws of any jurisdiction;
(ix) The execution, delivery and performance by the
Bank of this Agreement, the Receivables Purchase Agreement and
the Pooling and Servicing Agreement, the transfer of the
Receivables to FCCF and the consummation by the Bank of any
other of the transactions contemplated herein, in the
Receivables Purchase Agreement, or in the Pooling and
Servicing Agreement will not conflict with, result in a breach
of or a violation of any of the terms of, or constitute a
default under, (x) the Articles of Association or By-Laws of
the Bank, or (y) any rule, order, statute or regulation known
to such counsel to be currently applicable to the Bank, or (z)
any agreement or other instrument, known to such counsel, to
which the Bank is a party or by which it is bound;
(x) The execution, delivery and performance by FCCF
of this Agreement, the Receivables Purchase Agreement and the
Pooling and Servicing Agreement, the transfer of the
Receivables to the Trustee, the issuance and sale of the
Certificates and the consummation by FCCF of any other of the
transactions contemplated herein, in the Receivables Purchase
Agreement or in the Pooling and Servicing Agreement will not
conflict with, result in a breach of or a violation of any of
the terms of, or constitute a default under (y) any rule,
order, statute or regulation known to such counsel to be
currently applicable to FCCF, or (z) any agreement or other
instrument, known to such counsel to which FCCF is a party or
by which it is bound; and
(xi) To such counsel's knowledge, there are no
actions, proceedings or investigations pending before any
court, administrative agency or other tribunal (v) which are
required to be disclosed in the Prospectus and are not
disclosed therein, (w) asserting the invalidity of this
Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement or the Certificates, (x) seeking to
prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, the
Receivables Purchase Agreement or the Pooling and Servicing
Agreement, (y) which might materially and adversely affect the
performance by the Bank or by FCCF of their obligations
13
under, or the validity or enforceability of, this Agreement,
the Receivables Purchase Agreement, the Pooling and Servicing
Agreement or the Certificates or (z) seeking adversely to
affect the federal income tax attributes of the Certificates
as described in the Prospectus Supplement under the heading
"Summary of Terms-Tax Status" and in the Base Prospectus under
the heading "Federal Income Tax Consequences."
(e) You shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to
FCCF, to the effect that:
(i) FCCF has been duly created and is validly
existing in good standing as a business trust under the laws
of the State of Delaware;
(ii) Under the Delaware Business Trust Act (12 Del.
C.ss.3801, et seq.) (the "Trust Act"), the Trust Agreement of
FCCF (the "Trust Agreement") and [name of authorizing consent]
(the "Consent"), FCCF has all necessary trust power and
authority to execute and deliver this Agreement, the
Certificates, the Receivables Purchase Agreement, the Amended
and Restated Pooling and Servicing Agreement and the Series
Supplement (collectively, for purposes of this Section 8(e),
the "Transaction Documents"), and to perform its obligations
thereunder;
(iii) Under the Trust Act, the Trust Agreement and
the Consent, the execution and delivery by FCCF of the
Transaction Documents, and the performance by FCCF of its
obligations thereunder, have been duly authorized by all
necessary trust action on the part of FCCF. [Under the Trust
Act, the Trust Agreement and the Consent, the Transaction
Documents have been duly executed by FCCF;]
(iv) The Trust Agreement constitutes a legal, valid
and binding agreement of Fleet Credit Card Services, L.P., as
sole beneficial owner of FCCF (the "Beneficial Owner"), and is
enforceable against the Beneficial Owner, in accordance with
its terms;
(v) If properly presented to a Delaware court, a
Delaware court applying Delaware law, would conclude that (i)
in order for a Person (as defined in the Trust Agreement) to
file a voluntary bankruptcy petition on behalf of FCCF, the
prior unanimous written consent of the Beneficial Owner and
all members of the Board (as defined in the Trust Agreement)
(including all Independent Trustees (as defined in the Trust
Agreement)), as provided for in Section 3.3(c) of the Trust
Agreement, is required, and (ii) such provision, contained in
Section 3.3(c) of the Trust Agreement, that requires the prior
unanimous written consent of the Beneficial Owner and all
members of the Board (as defined in the Trust Agreement)
(including all Independent Trustees (as defined in the Trust
Agreement)), in order for a Person (as defined in the Trust
Agreement) to file a voluntary bankruptcy petition on behalf
of FCCF, constitutes a legal, valid and
14
binding agreement of the Beneficial Owner, and is enforceable
against the Beneficial Owner in accordance with its terms;
(vi) Under Section 3808(b) of the Trust Act and the
Trust Agreement, the Bankruptcy (as defined in the Trust
Agreement)of the Beneficial Owner shall not, by itself, result
in the termination or dissolution of FCCF;
(vii) Under Section 3805(b) of the Trust Act, no
creditor of the Beneficial Owner shall have any right to
obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of FCCF, except in
accordance with the terms of the Trust Agreement;
(viii) Under the Trust Act FCCF constitutes a
separate legal entity, separate and distinct from the
Beneficial Owner;
(ix) No authorization, consent, approval or order of
any Delaware court or any Delaware governmental or
administrative body is required by FCCF solely in connection
with the execution and delivery by FCCF of the Transaction
Documents, or the performance by FCCF of its obligations
thereunder;
(x) The execution and delivery by FCCF of the
Transaction Documents, and the performance by FCCF of its
obligations thereunder, do not violate (i) any Delaware law,
rule or regulation, or (ii) the certificate of trust of FCCF
or the Trust Agreement;
(xi) There is no excise or other tax imposed by the
State of Delaware upon the perfection of a security interest
in the Receivables;
(xii) There is no excise or other similar tax imposed
by the State of Delaware upon the transfer of the Receivables
to or from FCCF;
(xiii) There is no personal property tax imposed by
the State of Delaware upon or measured by the assets of the
Trust;
(xiv) The characterization of FCCF and the Trust for
federal income tax purposes, whether as a security device,
disregarded entity or partnership will be determinative of the
character of each of FCCF and the Trust under the laws of the
State of Delaware concerning any tax imposed on or measured by
income; and
(xv) Assuming neither FCCF nor the Trust will not be
taxed as an association or a publicly traded partnership
taxable as a corporation for federal income tax purposes, (i)
there will be no income or franchise tax imposed by the State
of Delaware upon the Trust, and (ii) there will be no income
tax imposed by the State of Delaware upon FCCF.
(f) You shall have received a letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
counsel for the Bank, to the effect that you may rely on those
provisions of their opinions to
15
▇▇▇▇▇'▇, Fitch and S&P with respect to certain matters relating to the
transfer of the Receivables by the Bank to FCCF, with respect to the
perfection of FCCF's interest in the Receivables and with respect to
other related matters.
(g) You shall have received a letter of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, P.A., special Delaware counsel for FCCF, to the effect that you
may rely on those provisions of their opinions to ▇▇▇▇▇'▇, Fitch and
S&P with respect to certain matters relating to the transfer of the
Receivables by FCCF to the Trustee, with respect to the perfection of
the Trustee's interest in the Receivables and with respect to other
related matters.
(h) You shall have received an opinion dated the closing date,
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Bank, to
the effect that
(i) The Receivables Purchase Agreement and the
Pooling and Servicing Agreement, including the allocation of
Collections provisions in the Pooling and Servicing Agreement,
each constitutes the legal, valid and binding obligation of
the Bank and of FCCF under the laws of the State of New York,
enforceable against the Bank and against FCCF in accordance
with its terms.
(ii) This Agreement constitutes the legal, valid and
binding obligation of the Bank and of FCCF under the laws of
the State of New York, enforceable against the Bank and
against FCCF in accordance with its terms.
(iii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the
Underwriters in accordance with this Agreement will be duly
and validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement.
(iv) The statements in the Base Prospectus under the
headings "Material Legal Aspects of the Receivables," "ERISA
Considerations" and "Federal Income Tax Consequences" and the
statements in the Prospectus Supplement under the headings
"Risk Factors - If a Conservator or Receiver Is Appointed for
the Bank, Payment of Your Certificates May Be Delayed or
Reduced," "Federal Income Tax Consequences" and "ERISA
Considerations" and the summaries thereof under the headings
"Summary of Terms - Tax Status" and "-- ERISA Considerations"
in the Prospectus Supplement to the extent they constitute
matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material
respects.
(v) This Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement and the
Certificates conform in all material respects to the
descriptions thereof contained in the Prospectus.
(vi) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not
16
now, and immediately following the sale of the Certificates
pursuant to this Agreement will not be, required to be
registered under the Investment Company Act of 1940, as
amended.
(vii) For federal income tax purposes the
Certificates will properly be characterized as indebtedness
and for purposes of Section 6.03(b)(vi) of the Pooling and
Servicing Agreement (a) the issuance of the Certificates and
the Collateral Interest will not adversely affect the tax
characterization as debt of Investor Certificates of any
outstanding Series or Class that were characterized as debt at
the time of their issuance, (b) following the issuance of the
Certificates and the Collateral Interest, the Trust will not
be an association (or publicly traded partnership) taxable as
a corporation and (c) the issuance of the Certificates and the
Collateral Interest will not cause or constitute an event in
which gain or loss would be recognized by any Investor
Certificateholder or the Trust; provided, however, that such
counsel may give the foregoing opinions subject to the
discussion of alternative characterizations and risks
discussed in the Base Prospectus under the heading "Federal
Income Tax Consequences."
(viii) The Registration Statement and the Prospectus
(other than the financial and statistical information
contained therein) on their respective effective dates or
dates of issuance appear on their face to be appropriately
responsive in all material respects to the applicable
requirements of the Act and the Rules and Regulations; such
counsel has no reason to believe that the Registration
Statement or the Prospectus, as of their respective dates,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary in order to make the statements therein, and, in the
case of the Prospectus, in light of the circumstances under
which they were made, not misleading, or that the Prospectus,
as amended or supplemented as of the date of such opinion,
contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading
(except that such counsel may express no opinion as to (x) any
financial statements, supporting schedules or other financial
or statistical information included in the Registration
Statement or the Prospectus or (y) the exhibits to the
Registration Statement).
(i) You shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters relating to this transaction
as you may require, and FCCF and the Bank shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(j) You shall have received a certificate from the Bank, dated
the Closing Date, of two Vice Presidents or more senior officers of the
Bank in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (u) the representations and
warranties of the Bank in this Agreement are true and correct in all
17
material respects on and as of the Closing Date, (v) the Bank has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date,
(w) the representations and warranties of the Bank, as seller under the
Receivables Purchase Agreement and as Servicer under the Pooling and
Servicing Agreement, are true and correct as of the dates specified in
the Receivables Purchase Agreement and in the Pooling and Servicing
Agreement, (x) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission, (y)
nothing has come to either of the officer's attention that would lead
such officer to believe that the Registration Statement or the
Prospectus, and any amendment or supplement thereto, as of its date and
as of the Closing Date, contained an untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (z) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Bank's credit card business
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(k) You shall have received a certificate from FCCF, dated the
Closing Date, of two Vice Presidents or more senior officers of FCCF in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that (u) the representations and warranties
of FCCF in this Agreement are true and correct in all material respects
on and as of the Closing Date, (v) FCCF has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (w) the
representations and warranties of FCCF, as purchaser under the
Receivables Purchase Agreement and as Transferor under the Pooling and
Servicing Agreement are true and correct as of the dates specified in
the Receivables Purchase Agreement and in the Pooling and Servicing
Agreement, (x) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission, (y)
nothing has come to either of the officer's attention that would lead
such officer to believe that the Registration Statement or the
Prospectus, and any amendment or supplement thereto, as of its date and
as of the Closing Date, contained an untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (z) subsequent to the date of the
Prospectus, there has been no material adverse change in the Trust
Assets except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(l) You shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
LLP, counsel to the Trustee, addressed to you, dated the Closing Date,
satisfactory in form and substance to you and your counsel and
substantially to the effect that:
(i) The Trustee is a banking corporation and is
validly existing under the laws of the State of New York;
18
(ii) The Series Supplement has been duly executed and
delivered by the Trustee, and the Pooling and Servicing
Agreement constitutes a legal, valid and binding obligation of
the Trustee, enforceable against the Trustee in accordance
with its terms, except that certain of the obligations may be
enforceable solely against the Trust Assets and except that
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, and by general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The Certificates delivered on the date hereof
have been duly authenticated and delivered by the Trustee in
accordance with the terms of the Series Supplement;
(iv) The execution and delivery of each of the
transaction documents and the performance by the Trustee of
the terms of each of the transaction documents does not
conflict with or result in a violation of (y) any law or
regulation of the United States of America or the State of New
York governing the banking or trust powers of the Trustee, or
(z) the Certificate of Incorporation or By-Laws of the
Trustee; and
(v) No approval, authorization or other action by, or
filing with, any governmental authority of the United States
of America or the State of New York having jurisdiction over
the banking or trust powers of the Trustee is required in
connection with the execution and delivery by the Trustee of
each of the transaction documents or the authentication and
delivery of the Certificates.
(m) You shall have received evidence satisfactory to you that
the Class A Certificates shall be rated "Aaa" by ▇▇▇▇▇'▇, "AAA" by
Fitch and "AAA" by S&P and that the Class B Certificates shall be rated
no lower than "A2" by ▇▇▇▇▇'▇, "A" by Fitch and "A" by S&P.
(n) You shall have received evidence satisfactory to you that
the Prospectus was timely filed with the Commission pursuant to Rule
424(b).
FCCF will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably
request.
9. Indemnification and Contribution. (a) The Bank and FCCF will jointly
and severally indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Certificate Term Sheet, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the
19
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that with respect to
any untrue statement or alleged untrue statement in or omission or alleged
omission from the Certificate Term Sheet the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Certificates concerned, if such untrue statement or omission or alleged
statement or omission in the Certificate Term Sheet is eliminated or remedied in
the Prospectus (as amended or supplemented if the Bank or FCCF shall have
furnished any amendments or supplements thereto) and, if required by law, a copy
of the Prospectus (as so amended or supplemented) shall not have been furnished
to such person by the Underwriters at or prior to the written confirmation of
the sale of the Certificate to that person; provided further, however, neither
FCCF nor the Bank will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with the Class A
Underwriters' Information or the Class B Underwriters' Information.
(b) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Bank and FCCF against any losses, claims,
damages or liabilities to which the Bank or FCCF may become subject, under the
Act or otherwise and will reimburse any legal or other expenses reasonably
incurred by the Bank or FCCF in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that, with
respect to each of the Class A Underwriters and the Class B Underwriters, such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with the Class A Underwriters'
Information or the Class B Underwriters' Information, respectively, and will
reimburse any legal or other expenses reasonably incurred by the Bank or FCCF in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
20
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of additional
counsel for the indemnified party or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Bank and FCCF 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 Bank and FCCF 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 Bank
and FCCF 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) of the Certificates received by FCCF bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Certificates. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by FCCF or the Bank or information supplied by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission with
respect to the Certificates. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim
21
which is the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), the Underwriters shall not be required to contribute any
amount in excess of the amount by which the total underwriting discount as set
forth on the cover page of the Prospectus Supplement exceeds the amount of
damages which the Underwriters have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission with
respect to the Certificates. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) are
several in proportion to their respective underwriting obligations and are not
joint.
(e) The obligations of the Bank and FCCF under this Section 9
shall be in addition to any liability which the Bank or FCCF may otherwise have
and shall extend, upon the same terms and conditions, to the directors and
officers of the Underwriters and each Person, if any, who controls the
Underwriters within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director and each officer of the Bank and each director and
each officer of FCCF, to each director and each officer of FCCF who has signed
the Registration Statement and to each Person, if any, who controls the Bank or
FCCF within the meaning of the Act.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Bank and FCCF or their officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Underwriters, the Bank, FCCF or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Certificates. If this Agreement is terminated or if for any
reason the purchase of the Certificates by the Underwriters is not consummated,
the Bank and FCCF shall remain responsible for the expenses to be paid by it
pursuant to subsection 7(a) and the respective obligations of FCCF, the Bank and
the Underwriters pursuant to Section 9 shall remain in effect, except that in
such circumstances, neither FCCF nor the Bank will not be responsible for the
expenses pursuant to subsection 7(a) to be paid by it to any defaulting
Underwriter or be obligated to indemnify any defaulting Underwriter pursuant to
Section 9. If for any reason the purchase of the Certificates by the
Underwriters is not consummated other than solely because of the occurrence of
any event specified in clause (iii), (iv) or (v) of subsection 8(c), the Bank or
FCCF will reimburse the Underwriters for all out-of-pocket expenses reasonably
incurred by them in connection with the offering of the Certificates.
11. Computational Materials and ABS Term Sheets. Each Underwriter
represents and warrants that it has not used any "Computational Materials" (as
defined in the Commission's No-Action Letter, dated May 20, 1994, addressed to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & 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)) or "ABS Term
Sheets" (as defined in the Commission's No-Action Letter, dated February 17,
1995, addressed to the Public
22
Securities Association) in connection with the offering of the Certificates
(other than the Certificate Term Sheet).
12. Electronic Distribution of Certificate Term Sheet. Each Underwriter
represents that if it furnished an electronic copy of the Certificate Term Sheet
used in connection with the Certificates to any person, such Underwriter has
furnished a printed copy of the Certificate Term Sheet to all persons to whom it
previously sent an electronic copy and to whom it will send a written
confirmation of sale.
13. Default by One or more of the Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase the Certificates hereunder
on the Closing Date and the aggregate principal amount of the Certificates that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of the Certificates that the
Underwriters are obligated to purchase on the Closing Date, the Representative
may make arrangements satisfactory to FCCF for the purchase of such Certificates
by other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
such Certificates that such defaulting Underwriters agreed but failed to
purchase on the Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Certificates with respect to which such
default or defaults occur exceeds 10% of the total principal amount of the
Certificates that the Underwriters are obligated to purchase on the Closing Date
and arrangements satisfactory to the Representative and FCCF for the purchase of
such Certificates by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Bank or FCCF except as provided in Section 10.
As used in this Agreement, the term "Underwriter" includes any person
substituted for a defaulting Underwriter under this Section 13. Nothing
contained in this Section 13 will relieve a defaulting Underwriter from
liability in respect of its default.
14. Limited Recourse. Any amounts to be paid by FCCF under this
Agreement shall only be made in accordance with this Section 14 and only from
the Funds (as defined herein). The Underwriters acknowledge that the only
recourse it has under this Agreement for such payments from FCCF is to the
Funds. Payments to be made under this Agreement by FCCF shall be made by FCCF
from funds paid or payable to FCCF pursuant to the Pooling and Servicing
Agreement including funds paid or payable in respect of the Transferors'
Interest and that are not required by the terms of the Pooling and Servicing
Agreement to be used by FCCF for any other purpose and the payment of which to
the Underwriters pursuant to this Agreement would not cause a Pay Out Event or a
default by FCCF to occur under the Pooling and Servicing Agreement or any
supplement thereto (the "Funds"). The Underwriters agree that failure of FCCF to
make any payment to Underwriters under this Agreement shall not constitute a
"claim" (as defined in Section 101 of the United States Bankruptcy Code) against
FCCF.
15. Nonpetition Covenant. Notwithstanding any prior termination of this
Agreement, the Underwriters shall not, prior to the date which is one year and
one day after the termination of this Agreement, acquiesce, petition or
otherwise invoke or cause FCCF to invoke the process of any Governmental
Authority for the purpose of commencing or sustaining a case against FCCF
23
under any Debtor Relief Law or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of FCCF or
any substantial part of its property or ordering the winding-up or liquidation
of the affairs of FCCF.
16. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to:
[Address of Underwriter]
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
18. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19. Financial Services Act. Each Underwriter represents and warrants
to, and agrees with, the Bank and FCCF that (x) it has complied and shall comply
with all applicable provisions of the Financial Services and Markets ▇▇▇ ▇▇▇▇
("FSMA") and the Public Offers of Securities Regulations 1995 (the
"Regulations") with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom; (y) it has only
communicated or caused to be communicated and it will only communicate or cause
to be communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of FSMA) received by it in connection with the
issue or sale of any Certificates in circumstances in which section 21(1) of the
FSMA does not apply to FCCF or the Bank; and (z) it has not offered or sold and,
prior to the date which is six months after the date of issue of the
Certificates will not offer or sell any Certificate to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing, or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which do not
constitute an offer to the public in the United Kingdom for purposes of the
Regulations.
24
If you are in agreement with the foregoing, please sign three
counterparts hereof and return one to FCCF whereupon this letter and your
acceptance shall become a binding agreement among FCCF, the Bank and the
Underwriters.
Very truly yours,
FLEET CREDIT CARD FUNDING TRUST
By__________________________
Name:
Title:
FLEET BANK (RI),
NATIONAL ASSOCIATION
By__________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[REPRESENTATIVE]
as a Representative of the
Underwriters set forth herein
By____________________________
Name:
Title:
SCHEDULE A
Class A Certificates
Principal Amount of
Underwriters Class A Certificates
Total $
Class B Certificates
Principal Amount of
Underwriters Class B Certificates
Total $
Schedule A, Page 1