EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
MBNA CREDIT CARD MASTER NOTE TRUST
MBNA AMERICA BANK, NATIONAL ASSOCIATION
(Originator, Seller and Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
, 2001
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[ ]
As Underwriter or as the Representative
of the Underwriters named in the
Terms Agreement
Dear Sirs:
MBNA Credit Card Master Note Trust, a Delaware business trust (the
"Issuer"), proposes to, and MBNA America Bank, National Association, a national
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banking association (the "Bank"), as originator (in such capacity, the
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"Originator") and beneficiary (in such capacity, the "Beneficiary") of the
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Issuer, proposes to cause the Issuer to sell the notes of the series, classes
and tranches designated in the applicable Terms Agreement (as hereinafter
defined) (the "Notes"). The Notes will be issued pursuant to the Indenture,
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dated as of , 2001, as supplemented by the Indenture Supplement and a
Class [ . ] Terms Agreement having the dates stated in the applicable Terms
Agreement (as so supplemented and as otherwise modified or amended from time to
time, the "Indenture"), between the Issuer and The Bank of New York, as trustee
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(in such capacity, the "Indenture Trustee"). The Issuer is operated pursuant to
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a Trust Agreement, dated as of _________ __, 2001 (the "Trust Agreement"),
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between the Bank, as Beneficiary, and Wilmington Trust Company, as owner trustee
(the "Owner Trustee"). The Notes will be secured by certain assets of the
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Issuer, including the Collateral Certificate referred to below (collectively,
the "Collateral").
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The Bank has transferred and proposes to continue to transfer credit
card receivables to the MBNA Master Credit Card Trust II (the "Master Trust")
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pursuant to a Pooling and Servicing Agreement, dated as of August 4, 1994, as
amended as of March 11, 1996, June 2, 1998, January 10, 1999, October 2, 2000
and March 30, 2001, and as supplemented by the Series Supplement
having the date stated in the applicable Terms Agreement (as so amended and
supplemented and as otherwise modified or amended from time to time, the
"Pooling and Servicing Agreement"), between The Bank, as seller (in such
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capacity, the "Seller") and as servicer (in such capacity, the "Servicer"), and
The Bank of New York, as trustee (in such capacity, the "Master Trust Trustee").
The assets of the Master Trust include, among other things, certain amounts due
on a pool of MasterCard(R) and VISA(R) revolving credit card accounts of the
Bank (the "Receivables"), proceeds of credit insurance policies relating to the
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Receivables and the benefit of a Credit Enhancement (as hereinafter defined), if
any. Pursuant to the Pooling and Servicing Agreement, the Bank has caused the
Master Trust to issue to the Issuer a collateral certificate (the "Collateral
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Certificate"). The Collateral Certificate is an investor certificate under the
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Pooling and Servicing Agreement that represents undivided interests in certain
assets of the Master Trust.
The Notes designated in the applicable Terms Agreement will be sold in
a public offering by the Issuer (as hereinafter defined) through [ ],
as underwriter, or through certain underwriters which include [ ],
one or more of which may with [ ] act as the representative of such
underwriters listed on Schedule I to the applicable Terms Agreement (any
underwriter through which Notes are sold shall be referred to herein as an
"Underwriter" or, collectively, all such Underwriters may be referred to as the
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"Underwriters"; each representative thereof may be referred to herein together
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as "Representative," which, if the context herein does require, shall include
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[ ] in its capacity as Underwriter of any Notes or as Representative).
Notes sold to the Underwriters for which [ ] is the Representative
shall be sold pursuant to a Terms Agreement by and between the Bank and the
Representative, a form of which is attached hereto as Exhibit A (a "Terms
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Agreement"), which incorporates by reference this Underwriting Agreement (the
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"Agreement," which may include the applicable Terms Agreement if the context so
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requires). Any Notes sold pursuant to any Terms Agreement may include the
benefits of a reserve account, letter of credit, surety bond, cash collateral
account, cash collateral guaranty, collateral interest, guaranteed rate
agreement, maturity guaranty facility, tax protection agreement, interest rate
swap, spread account or other contract or agreement for the benefit of the
Noteholders of such Series ("Credit Enhancement"). The term "applicable Terms
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Agreement" means the Terms Agreement dated the date hereof. To the extent not
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defined herein, capitalized terms used herein have the meanings assigned to such
terms in the Indenture or the Pooling and Servicing Agreement. Unless otherwise
stated herein or in the applicable Terms Agreement, as the context otherwise
requires or if such term is otherwise defined in the Indenture or the Pooling
and Servicing Agreement, each capitalized term used or defined herein or in the
applicable Terms Agreement shall relate only to the Notes designated in the
applicable Terms Agreement and no other series, class or tranche of notes issued
by the Issuer.
The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
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Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a shelf registration statement
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on Form S-3 (having the registration number stated in the applicable Terms
Agreement), including a form of prospectus, relating to the Notes and the
Collateral Certificate. The registration statement as amended has been declared
effective by the Commission. If any post-effective
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amendment has been filed with respect thereto, prior to the execution and
delivery of the applicable Terms Agreement, the most recent such amendment has
been declared effective by the Commission. Such registration statement, as
amended at the time of effectiveness, including all material incorporated by
reference therein and including all information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is referred to in this Agreement as the "Registration Statement."
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The Bank proposes to file with the Commission pursuant to Rule 424(b) ("Rule
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424(b)") under the Act a supplement (the "Prospectus Supplement") to the
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prospectus included in the Registration Statement (such prospectus, in the form
it appears in the Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b) is hereinafter referred to
as the "Basic Prospectus") relating to the Notes and the method of distribution
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thereof. The Basic Prospectus and the Prospectus Supplement, together with any
amendment thereof or supplement thereto, is hereinafter referred to as the
"Prospectus."
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Upon the execution of the applicable Terms Agreement, the Bank agrees
with the Underwriters as follows:
1. Subject to the terms and conditions herein set forth and in the
applicable Terms Agreement, the Bank agrees to cause the Issuer to sell and
deliver the Notes to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Issuer the respective principal amount of
the Notes set forth opposite such Underwriter's name in the applicable Terms
Agreement. The Notes are to be purchased by the Underwriters at the purchase
price(s) set forth in such Terms Agreement.
2. The Bank understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Notes as soon after the
Registration Statement and this Agreement and the applicable Terms Agreement
have become effective as in the judgment of the Representative is advisable and
(ii) initially to offer the Notes upon the terms set forth in the Prospectus.
3. Unless otherwise provided in the applicable Terms Agreement,
payment for the Notes shall be made to the Bank or to its order by wire transfer
of same day funds at 9:00 A.M., New York City time, on the Closing Date (as
hereinafter defined), or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Representative and the Bank
may agree upon in writing. The time and date of such payment for the Notes are
referred to herein as the "Closing Date." As used herein, the term "Business
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Day" means any day other than a day on which banks are permitted or required to
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be closed in New York City.
Unless otherwise provided in the applicable Terms Agreement, payment
for the Notes shall be made against delivery to the Representative for the
respective accounts of the several Underwriters of the Notes registered in the
name of Cede & Co. as nominee of The Depository Trust Company and in such
denominations as the Representative shall request in writing not later than two
full Business Days prior to the Closing Date, with any transfer taxes payable in
connection with the
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transfer to the Underwriters of the Notes duly paid by the Bank. The Notes will
be made available for inspection and packaging by the Representative at the
office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date.
4. Upon the execution of the applicable Terms Agreement, the Bank
represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having the
registration number stated in the applicable Terms Agreement), including the
Prospectus and such amendments thereto as may have been required on the date of
the applicable Terms Agreement, relating to the Notes, has been filed with the
Commission and such Registration Statement as amended has become effective. The
conditions to the use of a shelf registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, have been satisfied
with respect to the Bank and the Registration Statement;
(b) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Bank, threatened by the Commission, and on the
effective date of the Registration Statement, the Registration Statement and the
Prospectus conformed in all respects to the requirements of the Act and the
rules and regulations of the Commission under the Act (the "Rules and
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Regulations"), and did not include any untrue statement of a material fact or
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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 the applicable
Terms Agreement, the Registration Statement and the Prospectus conform, and at
the time of filing of the Prospectus pursuant to Rule 424(b) such documents will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents will include on the date of
the applicable Terms Agreement and on the Closing Date 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; provided, however,
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that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Bank in writing by such Underwriter through the
Representative expressly for use therein;
(c) As of the Closing Date, the representations and warranties of
the Bank, as Seller and Servicer, in the Pooling and Servicing Agreement and the
representations and warranties of the Issuer in the Indenture will be true and
correct in all material respects;
(d) The Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and to execute, deliver and
perform this Agreement and the applicable Terms Agreement and to authorize the
sale of the Notes, and to consummate the transactions contemplated by this
Agreement and the applicable Terms Agreement and has been duly qualified as a
foreign corporation for the
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transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Bank and its subsidiaries, taken as a whole;
(e) The Collateral Certificate has been duly authorized, executed,
authenticated, issued and delivered and is entitled to the benefits provided by
the Pooling and Servicing Agreement. Each increase in the Investor Interest of
the Collateral Certificate will have been authorized and effected in accordance
with the Pooling and Servicing Agreement as of the applicable settlement date of
each Note; each of the Pooling and Servicing Agreement, this Agreement and the
applicable Terms Agreement have been duly authorized by the Bank and, when
executed and delivered by the Bank, as Seller and Servicer, and the Master Trust
Trustee (in the case of the Pooling and Servicing Agreement), each of the
Pooling and Servicing Agreement, this Agreement and the applicable Terms
Agreement will constitute a valid and binding agreement of the Bank; and the
Collateral Certificate and the Pooling and Servicing Agreement conform to the
descriptions thereof in the Prospectus in all material respects;
(f) The Issuer has been duly formed and is validly existing as a
business trust in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as described
in the Prospectus and to execute, deliver and perform the Indenture, and to
authorize the issuance of the Notes, and to consummate the transactions
contemplated by the Indenture.
(g) The Notes have been duly authorized, and, when executed,
issued and delivered pursuant to the Indenture, duly authenticated by the
Indenture Trustee and paid for by the Underwriters in accordance with this
Agreement and the applicable Terms Agreement, will be duly and validly executed,
authenticated, issued and delivered and entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized by the Issuer and, when
executed and delivered by the Issuer and the Indenture Trustee (in the case of
the Indenture), each of the Indenture, this Agreement and the applicable Terms
Agreement will constitute a valid and binding agreement of the Issuer; and the
Notes and the Indenture conform to the descriptions thereof in the Prospectus in
all material respects;
(h) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or governmental body is required to be
obtained or made by the Bank or the Issuer for the consummation of the
transactions contemplated by this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement or the Indenture, except such as have been
obtained and made under the Act, such as may be required under state securities
laws and the filing of any financing statements required to perfect the Master
Trust's interest in the Receivables or the Indenture Trustee's interest in the
Collateral;
(i) The Bank and the Issuer are not in violation of their
respective organizational documents or in default in their respective
performance or observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument to which they
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are a party or by which they or their properties are bound which would have a
material adverse effect on the transactions contemplated herein or in the
Pooling and Servicing Agreement or the Indenture. The execution, delivery and
performance of this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement and the Indenture, and the issuance and delivery of the
Collateral Certificate and the Notes and compliance with the terms and
provisions thereof will not result in a material breach or violation of any of
the terms and provisions of, or constitute a material default under, any
statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Bank, the Issuer or any of their respective
properties or any agreement or instrument to which the Bank or the Issuer is a
party or by which the Bank or the Issuer is bound or to which any of the
properties of the Bank or the Issuer is subject, or the respective
organizational documents of the Bank or the Issuer; and the Bank has full power
and authority to authorize and issue the Collateral Certificate, and to sell the
Notes, as contemplated by this Agreement and the applicable Terms Agreement and
to enter into this Agreement, the applicable Terms Agreement and the Pooling and
Servicing Agreement; and the Issuer has full power and authority to authorize,
issue and sell the Notes as contemplated by this Agreement, the applicable Terms
Agreement and the Indenture and to enter into the Indenture;
(j) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Bank, threatened to which any of the Bank or its subsidiaries is or may be a
party or to which any property of the Bank or its subsidiaries is or may be the
subject which, if determined adversely to the Bank, could individually or in the
aggregate reasonably be expected to have a material adverse effect on (i) the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Bank and its subsidiaries,
taken as a whole, and the interests of the holders of the Notes, or (ii) the
interests of the holders of the Notes; and there are no contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the Basic
Prospectus which are not filed or described as required; and
(k) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Bank and when executed and
delivered by the Bank, each of this Agreement and the applicable Terms Agreement
will constitute a valid and binding agreement of the Bank.
5. Upon the execution of the applicable Terms Agreement, the Bank
covenants and agrees with the several Underwriters that:
(a) Immediately following the execution of this Agreement, the
Bank will prepare a Prospectus Supplement setting forth the amount of Notes
covered thereby and the terms thereof not otherwise specified in the Basic
Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances and such other information as the Bank deems appropriate. The Bank
will transmit the Prospectus including such Prospectus Supplement to the
Commission pursuant to Rule 424(b) by a means reasonably calculated to result in
filing with the Commission pursuant to Rule 424(b).
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(b) The Bank will deliver, at the expense of the Bank, to the
Representative, two signed copies of the Registration Statement and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement and each amendment
thereto, in each case without exhibits and, during the period mentioned in
paragraph (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Representative may reasonably request.
(c) Before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, the Bank will furnish to the Representative a copy
of the proposed amendment or supplement.
(d) The Bank will advise the Representative promptly, and will
confirm such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Bank of any notification with respect to any
suspension of the qualification of the Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(e) The Bank will if during such period of time after the first
date of the public offering of the Notes as in the opinion of counsel for the
Underwriters a Prospectus relating to the Notes is required by law to be
delivered in connection with sales by an Underwriter or dealer, (i) any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or (ii) it is necessary to amend or supplement the Prospectus to comply with the
law, forthwith prepare and furnish, at the expense of the Bank, to the
Underwriters and to the dealers (whose names and addresses the Representative
will furnish to the Bank) to which Notes may have been sold by the
Representative on behalf of the Underwriters and to any other dealers upon
request, a copy of such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with the law.
(f) The Bank will cause the Issuer to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualification in
effect so long as reasonably required for distribution of the Notes and to pay
all fees and expenses (including fees and disbursements of counsel to the
Underwriters) reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as
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the Representative may designate; provided, however, that the Bank shall not be
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obligated to qualify to do business in any jurisdiction in which it is not
currently so qualified; and provided further that neither the Bank nor the
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Issuer shall be required to file a general consent to service of process in any
jurisdiction.
(g) On or before December 31 of the year following the year in
which the Closing Date occurs, the Bank will cause the Issuer to make generally
available to Noteholders and to the Representative as soon as practicable an
earnings statement covering a period of at least twelve months beginning with
the first fiscal quarter of the Issuer occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 of the Commission promulgated thereunder.
(h) So long as any of the Notes are outstanding, the Bank will
furnish to the Representative copies of all reports or other communications
(financial or other) furnished to holders of the Notes and copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange.
(i) For a period from the date of this Agreement until the
retirement of the Notes the Bank, as Servicer, will furnish to you copies of
each certificate and the annual statements of compliance delivered to the
Trustee pursuant to Article III of the Pooling and Servicing Agreement and the
annual independent certified public accountant's servicing reports furnished to
the Master Trust Trustee pursuant to Article III of the Pooling and Servicing
Agreement, by first-class mail promptly after such statements and reports are
furnished to the Master Trust Trustee.
(j) During the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, neither the Bank
nor the Issuer will offer, sell, contract to sell or otherwise dispose of any
credit card backed securities with the same term and other characteristics
identical to the Notes without the prior written consent of the Representative.
(k) The Bank will cause the Notes to be registered in a timely
manner pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the Indenture to be qualified pursuant to the Trust
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Indenture Act of 1939, as amended (the "Trust Indenture Act").
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(l) To the extent, if any, that the rating provided with respect
to the Notes by the rating agency or rating agencies rating the Notes (the
"Rating Agency") is conditional upon the furnishing of documents or the taking
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of any other reasonable action by the Bank agreed upon on or prior to the
Closing Date, the Bank shall furnish such documents and take any such other
reasonable action.
6 The Bank will pay all costs and expenses incident to the
performance of its obligations under this Agreement and the applicable Terms
Agreement, including, without limiting the generality of the foregoing, (i) all
costs and expenses incident to the
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preparation, issuance, execution, authentication and delivery of the Notes, (ii)
all costs and expenses incident to the preparation, printing and filing under
the Act or the Exchange Act of the Registration Statement, the Prospectus and
any preliminary prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) all costs and expenses incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Notes under the laws of such jurisdictions as the Underwriters
may designate (including fees of counsel for the Underwriters and their
disbursements), (iv) all costs and expenses related to any filing with the
National Association of Securities Dealers, Inc., (v) all costs and expenses in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement, the Indenture and any Blue Sky Memorandum and the
furnishing to Underwriters and dealers of copies of the Registration Statement
and the Prospectus as herein provided, (vi) the reasonable fees and
disbursements of the Bank's counsel and accountants, and (vii) all costs and
expenses payable to the Rating Agency in connection with the rating of the
Notes, except that the Underwriters agree to reimburse the Bank for an amount,
if any, specified in the applicable Terms Agreement on the Closing Date for
application toward such expenses. It is understood that, except as specifically
provided in Sections 6, 8, 9 and 12 of this Agreement, the Underwriters will pay
all of its own fees, costs and expenses (including the fees and disbursements of
its counsel), transfer taxes and any advertising expenses in connection with
sales or offers from the Underwriters to third parties.
7 The several obligations of the Underwriters hereunder are subject
to the performance by the Bank of its obligations hereunder and under the
applicable Terms Agreement and to the following additional conditions:
(a) On or prior to the date of this Agreement, you shall have
received a letter, dated the date of the applicable Terms Agreement, of Ernst &
Young LLP (or such other independent accountants as shall be named in the
applicable Terms Agreement) confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that the engagement to apply agreed-upon
procedures was performed in accordance with the standards established by the
American Institute of Certified Public Accountants, and substantially in the
form heretofore agreed and otherwise in form and in substance satisfactory to
you and your counsel.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 5(a) of this
Agreement; and, as of the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or, to the knowledge of the
Bank or the Issuer, threatened by the Commission; and all requests for
additional information from the Commission with respect to the Registration
Statement shall have been complied with to the satisfaction of the
Representative.
(c) The representations and warranties of the Bank contained
herein are true and correct in all material respects on and as of the
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Closing Date as if made on and as of the Closing Date, and the Bank shall have
complied with all agreements and all conditions on its part to be performed or
satisfied hereunder and under the applicable Terms Agreement at or prior to the
Closing Date.
(d) The Representative shall have received an opinion of Xxxx X.
Xxxxxxxx, Executive Vice President, General Counsel and Secretary of MBNA
Corporation and Vice Chairman, Cashier and Secretary of the Bank, or other
officer acceptable to the Representative, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Closing Date, in form and
substance reasonably satisfactory to the Representative and its counsel, to the
effect that:
(i) The Bank is a national banking association formed under
the laws of the United States of America and is authorized to transact the
business of banking, including to own its assets and to transact its
business as described in the Prospectus, and had at all relevant times and
now has the power, authority and legal right to acquire, own and service
the Accounts and the Receivables;
(ii) The Bank has the power and authority to execute and
deliver this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement and the Trust Agreement, and to consummate the
transactions contemplated herein and therein;
(iii) The Collateral Certificate has been duly authorized and
executed by the Bank and, when authenticated and delivered in accordance
with the terms of the Pooling and Servicing Agreement will be duly and
validly issued and outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation by the Bank of the transactions contemplated herein or in
the Pooling and Servicing Agreement, the Indenture or the Trust Agreement,
except for such consents, approvals, orders or filings as may be required
under federal or state securities laws and except for such filings as may
be required to perfect interests in the Receivables pursuant to the Pooling
and Servicing Agreement or the Collateral pursuant to the Indenture;
(v) Neither the execution, delivery and performance by the
Bank of its obligations under this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement or the Trust Agreement, the
transfer of the Receivables to the Master Trust, the issuance and delivery
of the Collateral Certificate, nor the consummation of any other of the
transactions contemplated herein, in the applicable Terms Agreement, the
Pooling and Servicing Agreement, the Indenture or the Trust Agreement will
conflict with, result in a breach of or violation of any of the terms of,
or constitute a default under, the Articles of Association or By-laws of
the Bank, each as amended, or any rule, order, statute or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Bank or the terms of any material indenture or other
material
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agreement or instrument known to such counsel to which the Bank is a party
or by which it or its properties are bound;
(vi) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened before any court,
administrative agency or other tribunal (x) asserting the invalidity of
this Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Indenture, the Trust Agreement, the Credit Enhancement, the
Collateral Certificate or the Notes, (y) seeking to prevent the issuance of
the Collateral Certificate or the Notes or the consummation of any of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the Indenture, the Trust
Agreement, the Credit Enhancement, the Collateral Certificate or the Notes,
which might materially and adversely affect the performance by the Bank of
its obligations under, or the validity or enforceability of, this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Indenture, the Trust Agreement, the Credit Enhancement, the
Collateral Certificate or the Notes or (z) seeking adversely to affect the
federal income tax attributes of the Notes as described in the Basic
Prospectus under the headings "Prospectus Summary -- Tax Status" and
"Federal Income Tax Consequences"; and
(vii) Each of this Agreement, the applicable Terms Agreement,
the Pooling and Servicing Agreement, the Trust Agreement and the Collateral
Certificate has been duly authorized, executed and delivered by the Bank.
(e) The Representative shall have received an opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Bank and the Issuer, subject
to customary qualifications, assumptions, limitations and exceptions, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, to the effect that:
(i) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Commission, pursuant to Rule
424(b) promulgated under the Act; to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act; and the Registration Statement
and the Prospectus (other than the financial and statistical information
therein as to which such counsel express no opinion), as of their
respective effective date or date of issuance, complied as to form in all
material respects with the requirements of the Act and the rules and
regulations promulgated thereunder;
(ii) This Agreement, the Pooling and Servicing Agreement, the
Indenture, the Collateral Certificate and the Notes conform in all material
respects to the descriptions thereof contained in the Registration
Statement, in the form in which it became effective, and the Prospectus;
11
(iii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and neither
the Master Trust nor the Issuer is now, or immediately following the sale
of the Notes pursuant to this Agreement will be, required to be registered
under the Investment Company Act of 1940, as amended, and the Indenture has
been qualified under the Trust Indenture Act;
(iv) The disclosure in the Prospectus of certain legal
proceedings, contracts and other documents and the filing of such contracts
and documents as exhibits to the Registration Statement are appropriately
responsive in all material respects to the applicable requirements of the
Act and the rules and regulations promulgated thereunder;
(v) Subject to the discussion of alternative characterizations
and risks discussed in the Basic Prospectus under the heading "Federal
Income Tax Consequences," for federal income tax purposes (i) the Notes
will not constitute an ownership interest in the Receivables but will
properly be characterized as debt, (ii) any entity constituted by the
Master Trust or the Issuer will not be classified as an association or as a
publicly traded partnership taxable as a corporation, and (iii) the
issuance of the Notes (x) will not adversely affect the federal income tax
characterization as debt of any issued and outstanding securities issued by
the Master Trust or the Issuer, (y) will not cause the Master Trust or the
Issuer to be deemed to be an association taxable as a corporation or a
publicly traded partnership taxable as a corporation and (z) will not cause
or constitute an event in which gain or loss would be recognized by any
securityholder of the Master Trust or the Issuer, the Master Trust or the
Issuer. Although the foregoing represents our views regarding the
characteristics of the Master Trust and the Issuer and the Notes for
federal income tax purposes, we call your attention to the discussion of
alternative characterizations and risks discussed in the Basic Prospectus
under the heading "Federal Income Tax Consequences"; and
(vi) The statements in the Basic Prospectus under the headings
"Material Legal Aspects of the Receivables" and "Benefit Plan Investors,"
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.
Such counsel also shall state that they have participated in
conferences with representatives of the Bank and its accountants, the
Underwriters and counsel to the Underwriters concerning the Registration
Statement and the Prospectus and have considered the matters required to be
stated therein and the matters stated therein, although they are not
independently verifying the accuracy, completeness or fairness of such
statements (except as stated in paragraphs (v) and (vi) above) and based upon
and subject to the foregoing, nothing has come to such counsel's attention to
cause such counsel to believe that the Registration Statement (excluding any
exhibits filed therewith), at the time it became effective, contained an untrue
statement of a
12
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as of the Closing Date, 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 (it being understood that such
counsel has not been requested to and does not make any comment in this
paragraph with respect to the financial statements, supporting schedules and
other financial or statistical information contained in the Registration
Statement or the Prospectus).
(f) The Representative shall have received an opinion or opinions of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Bank and the Issuer,
subject to customary qualifications, assumptions, limitations and exceptions,
dated the Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, with respect to certain matters relating to the
transfer of the Receivables and the applicable Credit Enhancement, if any, to
the Master Trust, with respect to the perfection of the Master Trust's interest
in the Receivables and certain other matters relating to the applicable Credit
Enhancement, if any, with respect to the applicability of certain provisions of
the National Bank Act and the Federal Deposit Insurance Act, as amended by the
Financial Institutions, Reform, Recovery and Enforcement Act of 1989 with
respect to the effect of receivership of the Bank on such interest in the
Receivables and with respect to other related matters in a form previously
approved by you and your counsel. In addition, the Representative shall have
received a reliance letter with respect to any opinion that the Bank is required
to deliver to the Rating Agency.
(g) The Representative shall have received a reliance letter with
respect to any opinion delivered by Xxxxxxxx, Xxxxxx & Finger, P.A. (or such
other counsel as may be named in the applicable Terms Agreement), special
counsel to the Bank and the Issuer, to the Rating Agency, which opinion shall
include matters relating to the perfection of the Master Trust's interest in the
Receivables and shall provide that the characterization of the Master Trust for
federal income tax purposes will be determinative of the character of the Master
Trust under the laws of the State of Delaware concerning any tax imposed on or
measured by income.
(h) The Representative shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel to the Underwriters, such opinion or
opinions, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative, with respect to the organization of the
Bank, the validity of the Notes, the Registration Statement, the Prospectus and
other related matters as the Representative may require, and the Bank shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) The Representative shall have received a certificate, dated the
Closing Date, of a Vice President or more senior officer of the Bank in which
such officer, to his or her knowledge after due inquiry, shall state that the
representations and warranties of the Bank in this Agreement are true and
correct in all material respects on and as of the Closing Date, that the Bank
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and under the applicable Terms Agreement at or
prior to the Closing Date, that the representations and warranties of the Bank,
as Seller and as Servicer, in the Pooling and Servicing Agreement are true and
correct in all material respects as of the dates specified in the Pooling and
13
Servicing Agreement, that the Registration Statement has become effective, that
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 and that, subsequent to the date of the Prospectus,
there has been no material adverse change in the financial position or results
of operation of the Bank's credit card business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(j) The Representative shall have received an opinion of Xxxxxx,
Xxxxxx & Xxxxxx LLP, counsel to the Master Trust Trustee, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Master Trust Trustee is a banking corporation organized
and validly existing and in good standing under the laws of the State of
New York and is authorized and qualified to accept the trusts imposed by
the Pooling and Servicing Agreement and to act as Master Trust Trustee
under the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes a legal,
valid and binding obligation of the Master Trust Trustee, enforceable
against the Master Trust Trustee in accordance with its terms, except as
such enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to the
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The Master Trust Trustee has duly executed and
authenticated the Collateral Certificate;
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Master Trust Trustee and the performance by the Master
Trust Trustee of its terms do not conflict with or result in a violation of
(x) any law or regulation of the United States of America or the State of
New York governing the banking or trust powers of the Master Trust Trustee,
or (y) the organization certificate or by-laws of the Master Trust 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 Master Trust Trustee is required in connection with the execution and
delivery by the Master Trust Trustee of the Pooling and Servicing Agreement
or the performance by the Master Trust Trustee thereunder.
(k) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
Closing Date, in form and substance satisfactory
14
to the Representative and its counsel, with respect to the grant of the
Collateral Certificate and the other Collateral to the Indenture Trustee for the
benefit of the Noteholders and with respect to the perfection of the Indenture
Trustee's interest in the Collateral Certificate and the other Collateral.
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., counsel to the Owner Trustee, subject to customary
qualifications, assumptions, limitations and exceptions dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly existing
as a banking corporation in good standing under the laws of the State of
Delaware.
(ii) The Owner Trustee has power and authority to execute,
deliver and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms.
(iv) Each of the Indenture and the other transaction documents
referred to in such opinion (collectively referred to in this subsection
(l) as the "Trust Documents") has been duly executed and delivered by the
---------------
Owner Trustee, as Owner Trustee on behalf of the Issuer.
(v) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the case
may be, of the Trust Agreement and the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its individual
capacity or as Owner Trustee, as the case may be, contemplated thereby,
requires the consent or approval of, the withholding of objection on the
part of, the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any governmental
authority or agency of the State of Delaware or the United States of
America governing the banking or trust powers of the Owner Trustee (other
than the filing of the certificate of trust with the Delaware Secretary of
State, which certificate of trust has been duly filed).
(vi) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the case
maybe, of the Trust Agreement and the Trust Documents, nor the consummation
of the transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case maybe, contemplated thereby, is in violation of
the charter or by laws of the Owner Trustee or of any law, governmental
rule or regulation of the State of Delaware or of the United States of
America governing the banking or trust powers of the Owner Trustee or, to
our knowledge, without independent investigation, of any indenture,
mortgage, bank credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to
15
which it is a party or by which it is bound or, to our knowledge, without
independent investigation, of any judgment or order applicable to the Owner
Trustee.
(vii) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental agency
or commission of the State of Delaware is required by or with respect to
the Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, for the valid execution and delivery of the Trust Agreement or
the Trust Documents, or for the validity or enforceability thereof, other
than the filing of the certificate of trust, which certificate of trust has
been duly filed.
(viii) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
government authority which, if adversely determined, would materially and
adversely affect the ability of the Owner Trustee to carry out the
transactions contemplated by the Trust Agreement.
(m) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Issuer, subject to
customary qualifications, assumptions, limitations and exceptions dated the
Closing Date, in form and substance satisfactory to the Representative and its
counsel, substantially to the effect that:
(i) The Issuer has been duly formed and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12
Del.C. (ss)3801, et seq. (referred to in this subsection (m) as the "Act").
------ -- ----
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Owner Trustee and the Beneficiary, enforceable against
the Owner Trustee and the Beneficiary, in accordance with its terms.
(iii) The Trust Agreement authorizes the Issuer to execute and
deliver the Indenture and the other transaction documents referred to in
such opinion (collectively referred to in this subsection (m) as the "Trust
-----
Documents"), to issue the Notes and the trust certificate (referred to in
---------
this subsection (m) as the "Owner Certificate") and to grant the Collateral
-----------------
to the Indenture Trustee as security for the Notes.
(iv) The Issuer has the power and authority, pursuant to the
Trust Agreement and the Act, to execute, deliver and perform its
obligations under the Trust Documents, the Notes and the Owner Certificate
and has duly authorized, executed and delivered such agreements and
obligations.
(v) When the Owner Certificate is duly executed and issued by
the Issuer and duly authenticated by the Owner Trustee in accordance with
the Trust Agreement, the Owner Certificate will be validly issued and
entitled to the benefits of the Trust Agreement.
16
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, the Notes or the Owner Certificate, nor the
consummation by the Issuer of any of the transactions by the Issuer
contemplated thereby, requires the consent or approval of, the withholding
of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware,
other than the filing of the certificate of trust with the Delaware
Secretary of State (which certificate of trust has been duly filed) and the
filing of any financing statements with the Delaware Secretary of State in
connection with the Trust Documents.
(vii) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, nor the consummation by the Issuer of the
transactions contemplated thereby, is in violation of the Trust Agreement
or of any law, rule or regulation of the State of Delaware applicable to
the Issuer.
(viii) Under (ss)3805(b) of the Act, no creditor of the holder
of the Owner Certificate shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Issuer except in accordance with the terms of the Trust
Agreement.
(ix) Under (ss)3808(a) and (b) of the Act, the Issuer may not
be terminated or revoked by the Beneficiary, and the dissolution,
termination or bankruptcy of any holder of the Owner Certificate shall not
result in the termination or dissolution of the Issuer, except to the
extent otherwise provided in the Trust Agreement.
(x) The Owner Trustee is not required to hold legal title to
the owner trust estate in order for the Issuer to qualify as a business
trust under the Act.
(xi) There is no excise or other tax imposed by the State of
Delaware upon the perfection of a security interest in the Collateral;
(xii) There is no excise or other tax imposed by the State of
Delaware upon the transfer of the Collateral to or from the Issuer;
(xiii) There is no personal property tax imposed by the State
of Delaware upon or measured by the corpus of the Issuer;
(xiv) The characterization of the Issuer for federal income tax
purposes, whether as a trust, partnership or association taxable as a
corporation, will be determinative of the character of the Issuer under the
laws of the State concerning any tax imposed on or measured by income;
17
(xv) Assuming the Issuer will be taxed as a partnership for
federal income tax purposes, there will be no income tax imposed by the
State of Delaware upon the Issuer entity;
(xvi) Any income tax imposed by the State of Delaware that
might be applicable to the Issuer would be based upon "federal taxable
income," and for the purpose of ascertaining such income, the amount of
taxable income as computed for federal income tax purposes will be
determinative, whether such amount is computed based upon a
characterization of the transaction as a sale or as a loan;
(xvii) There is no document or stamp tax imposed by the State
of Delaware upon the issuance of the Notes;
(xviii) There is no income tax imposed by the City of
Wilmington, Delaware, upon the Issuer and the City of Wilmington, Delaware,
is prohibited by Delaware State law from imposing a personal property tax
upon or measured by the corpus of the Issuer; and
(xix) The Beneficiary (as defined in the Trust Agreement) is
the sole beneficial owner of the Issuer.
(n) The Representative shall have received a certificate, dated the
Closing Date, of an authorized representative of the Issuer in which such
representative, to his or her knowledge after due inquiry, shall state that the
representations and warranties of the Issuer in the Indenture are true and
correct in all material respects as of the dates specified in the Indenture, and
that, subsequent to the date of the Prospectus, there has been no material
adverse change in the financial position or results of operation of the Issuer's
business except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(o) The Underwriters shall have received an opinion of Xxxxx, Xxxxxx &
Xxxxxx LLP, counsel to the Indenture Trustee, subject to customary
qualifications, assumptions, limitations and exceptions dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and its
counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation organized
and validly existing and in good standing under the laws of the State of
New York and is authorized and qualified to accept the trusts imposed by
the Indenture and to act as Indenture Trustee under the Indenture;
(ii) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee and constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to the enforcement of
creditors' rights generally and by
18
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The Indenture Trustee has duly executed and authenticated
the Notes on the Closing Date;
(iv) The execution and delivery of the Indenture by the
Indenture Trustee and the performance by the Indenture Trustee of the terms
of the Indenture do not conflict with or result in a violation of (x) any
law or regulation of the United States of America or the State of New York
governing the banking or trust powers of the Indenture Trustee, or (y) the
organization certificate or by-laws of the Indenture Trustee;
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers of
the Indenture Trustee is required in connection with the execution and
delivery by the Indenture Trustee of the Indenture or the performance by
the Indenture Trustee thereunder;
(vi) To the best knowledge of such counsel, there is no action,
suit or proceeding pending or threatened against the Indenture Trustee (as
Indenture Trustee under the Indenture or in its individual capacity) before
or by any governmental authority that if adversely decided, would
materially adversely affect the ability of the Indenture Trustee to perform
its obligations under the Indenture; and
(vii) The execution, delivery and performance by the Indenture
Trustee of the Indenture will not subject any of the property or assets of
the Issuer, or any portion thereof, to the imposition of any lien which may
be asserted against the Issuer by the Indenture Trustee in its capacity as
Indenture Trustee.
(p) You shall have received a letter, dated the Closing Date, of Ernst
& Young LLP which meets the requirements of subsection (a) of this Section 7.
(q) You shall have received evidence satisfactory to you that the
Notes shall be rated in accordance with the applicable Terms Agreement by the
Rating Agency.
The Bank will furnish you, or cause you to be furnished with, such
number of conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
8. (a) The Bank agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the 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 thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not
19
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus or the Prospectus, or
any amendment or 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;
provided that the foregoing indemnity with respect to any untrue statement or
--------
omission in any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Notes if such untrue statement or omission or alleged untrue statement
or omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented if the Bank 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 at or prior to the written confirmation of the sale of such Notes to such
person; (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 any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written consent
of the Bank; and (iii) against any and all expenses whatsoever (including,
subject to Section 8(c) hereof, the reasonable fees and disbursements of counsel
chosen by you) as reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or 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 the Bank will not be liable in any such case to
-------- -------
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any such documents in reliance upon and in conformity with
written information furnished to the Bank by such Underwriter specifically for
use therein.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Bank, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the 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 preliminary prospectus or the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Bank by such Underwriter through the Representative expressly
for use in the Registration Statement or such preliminary prospectus or the
Prospectus, or any amendment or supplement thereto.
(c) Each indemnified party shall give prompt notice 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 which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action. In
no event shall the
20
indemnifying parties be liable for fees and expenses of more than one 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.
9. In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 8(a) is for any reason
held to be unavailable other than in accordance with its terms, the Bank and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Bank and the Underwriters, as incurred, in such proportions that
the Underwriters are responsible for that portion represented by the percentage
that the underwriting discount and commissions bear to the initial public
offering price appearing thereon and the Bank is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
-------- -------
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter, and each director of the Bank, each officer of
the Bank who signed the Registration Statement, and each person, if any, who
controls the Bank within the meaning of Section 15 of the Act shall have the
same rights to contribution as the Bank.
10. Notwithstanding anything herein contained, this Agreement and the
applicable Terms Agreement may be terminated in the absolute discretion of the
Representative, by notice given to the Bank, if after the execution and delivery
of this Agreement and the applicable Terms Agreement and prior to the Closing
Date (i) there has occurred any material adverse change or any development
involving a prospective material adverse change, in or affecting the general
affairs, business, prospects, management, financial position, stockholders'
equity or results of operation of the Bank or MBNA Corporation, and their
respective subsidiaries, taken as a whole, the effect of which in the reasonable
judgment of the Representative materially impairs the investment quality of the
Notes; (ii) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the reasonable judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impracticable or inadvisable to proceed with
completion of the sale and payment for the Notes.
11. If any Underwriter defaults in its obligations to purchase Notes
hereunder and the aggregate principal amount of the Notes that such defaulting
Underwriter agreed but failed to purchase does not exceed 25% of the total
principal amount of such Notes, you may make arrangements satisfactory to the
Bank for the purchase of such Notes by other persons, including the non-
defaulting Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated, in proportion to their
commitments hereunder, to
21
purchase the Notes that such defaulting Underwriter agreed but failed to
purchase. If any Underwriter so defaults and the aggregate principal amount of
the Notes with respect to which such default or defaults occur exceeds 25% of
the total principal amount of such Notes and arrangements satisfactory to you
and the Bank for the purchase of such Notes 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 or the Bank, except as provided in
Section 6. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
12. If for any reason other than as set forth in Section 11 the
purchase of the Notes by the Underwriters is not consummated, the Bank shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 6 and the respective obligations of the Bank and the Underwriters
pursuant to Sections 8 and 9 shall remain in effect. If the purchase of the
Notes by the Underwriters is not consummated for any reason other than solely
because of the occurrence of any event specified in clauses (ii), (iii) or (iv)
of Section 10, the Bank will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Notes.
13. Any action by the Underwriters hereunder may be taken by the
Representative on behalf of the Underwriters, and any such action taken by the
Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to the Representative, [ ].
Notices to the Bank shall be given to it at Xxxxxxxxxx, Xxxxxxxx 00000-0000
(Facsimile No.: 302-456-8348), Attention: Chief Corporate Finance Officer.
14. (a) Each Underwriter, severally, represents and warrants to the
Bank 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 Xxxxxx, Xxxxxxx Acceptance Corporation I,
Xxxxxx, Peabody & Co. Incorporated and Xxxxxx 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 Notes .
(b) Each Underwriter, severally, represents and warrants to the Bank
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 13,
1995, addressed to the Public Securities Association, with respect to the
offering of the Notes.
15. Each Underwriter, severally, represents that 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 Notes, transfer, deposit or otherwise
convey any Notes 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 interests in, such Notes without the prior written consent of the
Bank.
22
16. Each Underwriter, severally, represents that if it furnished an
electronic copy of the preliminary Prospectus prepared in connection with the
offer and sale of the Notes to any person, such Underwriter has furnished a
printed copy of such preliminary Prospectus to all persons to whom it previously
furnished an electronic copy.
17. This Agreement shall become effective upon execution and delivery
of the applicable Terms Agreement.
18. This Agreement shall inure to the benefit of and be binding upon
the Bank, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Notes from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
19. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
23
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Bank and the Underwriters in accordance
with its terms.
Very truly yours,
MBNA AMERICA BANK, NATIONAL
ASSOCIATION
By:_______________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
[ ]
As Underwriter or as the Representative
of the Underwriters named in
Schedule I to the Terms Agreement
By:_______________________
Name:
Title:
EXHIBIT A
MBNA CREDIT CARD MASTER NOTE TRUST
SERIES ____
ASSET BACKED NOTES
TERMS AGREEMENT
---------------
Dated:
To: MBNA AMERICA BANK, NATIONAL ASSOCIATION
Re: Underwriting Agreement dated
Series Designation:
Underwriters:
------------
The Underwriters named on Schedule I attached hereto are the "Underwriters"
for the purpose of this Agreement and for the purposes of the above referenced
Underwriting Agreement as such Underwriting Agreement is incorporated herein and
made a part hereof.
Terms of the Notes:
------------------
Initial
Principal Interest Price to
Amount Rate or Formula Public
------------------------ ------------------- ------------
[Class ]
[Class ]
[Class ]
Interest Payment Dates: _______________, _______________,
----------------------
______________ and _______________, commencing _____________ __, _____.
Note Ratings[s]:
---------------
A-1
Indenture:
---------
Indenture Supplement:
--------------------
Pooling and Servicing Agreement:
-------------------------------
Series Supplement:
-----------------
Purchase Price:
--------------
The purchase price payable by the Underwriters for the Notes covered
by this Agreement will be the following percentage of the principal amounts to
be issued:
Per [Class ] Notes __________%
[Per Class [ ] Notes __________%]
[Per Class [ ] Notes __________%]
Registration Statement:
----------------------
Underwriting Commissions, Concessions and Discounts:
---------------------------------------------------
The Underwriters' discounts and commissions, the concessions that the
Underwriters may allow to certain dealers, and the discounts that such dealers
may reallow to certain other dealers, each expressed as a percentage of the
principal amount of the Notes, shall be as follows:
Underwriting
Discounts and Selling
Concessions Concessions Reallowance
----------------- ------------- -------------
[Class ] ___% ___% ___%
[[Class ] ___% ___% ___%]
[[Class ] ___% ___% ___%]
[Reimbursement of Expenses:
-------------------------
The Underwriters shall reimburse the Bank for an amount not to exceed
$__________ for application towards expenses.]
Closing Date: Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of
------------
1934, as amended, the Underwriters, the Bank and the Issuer hereby agree that
the Closing Date shall be __________ __, 2000, __________ a.m., New York Time.
Location of Closing:
-------------------
A-2
Payment for the Notes:
---------------------
Opinion Modifications:
---------------------
The Underwriters agree, severally and not jointly, subject to the terms and
provisions of the above referenced Underwriting Agreement which is incorporated
herein in its entirety and made a part hereof, to purchase the respective
principal amounts of the above referenced Series of Notes set forth opposite
their names on Schedule I hereto.
[ ]
[As Representative of the
Underwriters named in
Schedule I hereto]
By: _______________________
Name:
Title:
Accepted:
MBNA AMERICA BANK, NATIONAL ASSOCIATION
By: _______________________
Name:
Title:
A-3
SCHEDULE I
UNDERWRITERS
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
[$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]]
[$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]]
Principal Amount
----------------
[Names of Underwriters] $
-----------------
$
=================
