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EXHIBIT 1.1
UNDERWRITING AGREEMENT
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FIRST SECURITY AUTO OWNER TRUST 20__-__
CLASS A-1 ____% ASSET BACKED NOTES
CLASS A-2 ____% ASSET BACKED NOTES
CLASS A-3 ____% ASSET BACKED NOTES
CLASS A-4 ____% ASSET BACKED NOTES
CLASS B ____% ASSET BACKED NOTES
FIRST SECURITY BANK, N.A.
(Seller and Servicer)
___________, 20__
[The Representative of the Underwriters]
Ladies and Gentlemen:
First Security Bank, N.A. (the "Bank"), proposes to sell to the
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several Underwriters listed on Schedule I hereto (the "Underwriters")
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$___________ principal amount of Class A-1 ____% Asset Backed Notes, (the "A-1
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Notes"), $__________ principal amount of Class A-2 ____% Asset Backed Notes,
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(the "A-2 Notes"), $___________ principal amount of Class A-3 ____% Asset Backed
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Notes (the "A-3 Notes"), $__________ principal amount of Class A-4 ____% Asset
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Backed Notes (the "A-4 Notes" and, together with the A-1 Notes, A-2 Notes and A-
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3 Notes, the "Class A Notes") and $__________ principal amount of Class B ____%
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Asset Backed Notes, (the "Class B Notes," and together with the Class A Notes,
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the "Notes") to be issued by the First Security Auto Owner Trust 20__-__. Each
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Note will represent indebtedness in the First Security Auto Owner Trust 20__-__
(the "Trust"). The Trust will also issue a Class B Note in the aggregate
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principal amount of $_____ which will be retained by First Security Bank, N.A.
The assets of the Trust will include, among other things, a pool of retail motor
vehicle installment sale contracts and installment loans secured by new and used
automobiles and light trucks (collectively, the "Receivables") and certain
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monies due thereunder after the close of business of the Bank on ___________,
20__ (the "Cutoff Date"), such Receivables and other property to be sold to the
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Trust by the Bank and to be serviced for the Trust by the Servicer. The Class B
Notes are, to the extent specified in the Indenture, subordinated to the rights
of the holders of the Class A Notes. The Notes will be issued pursuant to an
Indenture (the "Indenture") between the Trust and _______________
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("___________"), as Indenture Trustee (the "Indenture Trustee").
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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 (the "Act"), and the rules and regulations of
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the Commission thereunder (the "Rules and Regulations"), a registration
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statement, including a prospectus, and a prospectus supplement relating to the
Notes. The registration statement as amended at the time when it shall become
effective, or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness,
including in each case 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," and
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the prospectus and prospectus supplement in the form used to confirm sales of
the Notes are referred to in this Agreement as the "Prospectus" and "Prospectus
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Supplement," respectively.
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The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Execution Time" shall mean the date and time that this
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Agreement is executed and delivered by the parties hereto. "Registration
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Statement Effective Date" shall mean each date that the Registration Statement
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and any post-effective amendment or amendments thereto became or become
effective. "Rule 424" and "Rule 430A" refer to such rules under the Act.
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"Supplement Effective Date" shall mean the date the Prospectus Supplement and
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any post-effective amendment or amendment thereto became or become effective.
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Sale and Servicing Agreement.
The Bank represents and warrants to, and agrees with, the Underwriters
as follows:
1. The Bank hereby agrees 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 Bank the respective principal amount of the Notes set forth opposite
such Underwriter's name in Schedule I hereto. The Notes are to be purchased by
the Underwriters at the purchase price equal to (i) with respect to the A-1
Notes, _____% of the principal amount thereof, (ii) with respect to the A-2
Notes, _____% of the principal amount thereof, (iii) with respect to the A-3
Notes, _____% of the principal amount thereof, (iv) with respect to the A-4
Notes, _____% of the principal amount thereof, and (v) with respect to the Class
B Notes, _____% of the principal amount thereof.
2. The Bank understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Notes as soon after this
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 and the Prospectus Supplement. The Bank confirms that it authorized
the Underwriters to use a term sheet with respect to the offering of the Notes
in the form attached hereto as Exhibit A (the "Term Sheet"). The Term Sheet
shall not be distributed by the Underwriters or the Bank from and after the date
hereof.
3. Payment for the Notes shall be made to the Bank or to its order,
by wire transfer of same day funds at the office of Kirkland & Ellis, 153 East
53rd Street, New York, New
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York 10022, at 9:00 a.m. (New York time) on __________, 20__ (the "Closing
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Date"), or at such other time on the same or such other date, not later than the
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fifth Business Day thereafter, as the Representative and the Bank may agree upon
in writing. As used herein, the term "Business Day" means any day other than a
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day on which banks are permitted or required to be closed in the City of New
York.
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 Depositary Trust
Company and in such denominations, as permitted by the Indenture, 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 transfer to the Underwriters of the Notes duly paid by the Bank. The
certificates for the Notes will be made available for inspection and packaging
by the Representative at the office of Kirkland & Ellis, 153 East 53rd Street,
New York, New York 10022, not later than 1:00 p.m. (New York time) on the
Business Day prior to the Closing Date.
4. The Bank hereby represents and warrants to, and agrees with, each
Underwriter that:
(a) The Registration Statement on Form S-3 (no. 333-36730) and
the Prospectus together with the Prospectus Supplement, including in each case
such amendments thereto as may have been required on or prior to the date
hereof, have been filed in a timely manner with the Commission and such
Registration Statement as amended has become effective. With respect to the
Registration Statement, the conditions to the use of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions to Form S-3,
have been satisfied by the Bank;
(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 Registration Statement Effective Date of the Registration Statement,
the Registration Statement and the prospectus then included therein conformed in
all respects to the requirements of the Act, the Rules and Regulations and the
Trust Indenture Act of 1939 (the "Trust Indenture Act"), and did not include any
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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 Closing Date, the Registration Statement, the Prospectus and the
Prospectus Supplement will conform in all respects to the requirements of the
Act, the Rules and Regulations and the Trust Indenture Act, and none of such
documents will 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; provided, however, that this representation
and warranty shall not apply to (i) any statements or omissions made in reliance
upon and in conformity with information furnished to the Bank in writing by any
Underwriter through the Representative expressly for use therein and (ii) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Indenture Trustee under the
Trust Indenture Act;
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(c) The computer tape with respect to the Receivables to be sold to
the Trust created as of the Cutoff Date (the "Computer Tape"), and made
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available to the Representative by the Bank, was complete and accurate in all
material respects as of the date thereof;
(d) The Bank has been duly organized and is validly existing as a
United States banking association, is 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 has been
duly qualified for the 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;
(e) The Notes have been duly authorized, and, when issued and
delivered pursuant to the Indenture, duly authenticated by the Indenture Trustee
and paid for by the Underwriters in accordance with the terms of this Agreement,
will be duly and validly issued, authenticated and delivered and entitled to the
benefits provided by the Indenture; each of the Sale and Servicing Agreement,
the Indenture, the Trust Agreement, the Administration Agreement and this
Agreement (the "Transaction Documents") have been duly authorized by the Bank
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and, when executed and delivered by the Bank and the other parties thereto, each
of the Transaction Agreements will constitute a valid and binding agreement of
the Bank; the Notes, the Sale and Servicing Agreement and the Indenture will
conform to the descriptions thereof in the Prospectus and the Prospectus
Supplement in all material respects;
(f) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or made by
the Bank for the consummation of the transactions contemplated by the
Transaction Agreements; except such as have been obtained and made under the
Act, the Trust Indenture Act and as may be required under state securities laws
and the filing of any financing statements required to perfect the Trust's
interest in the Receivables;
(g) The Bank is neither in violation of its articles of association or
by-laws nor is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument to
which it is a party or by which it or its properties is bound which would have a
material adverse effect on the transactions contemplated in any of the
Transaction Agreements. The execution, delivery and performance of the
Transaction Agreements, and the issuance and sale of the Notes and compliance
with the terms and provisions hereof and thereof, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Bank or any of its properties or any
agreement or instrument to which the Bank is a party or by which the Bank is
bound or to which any of the properties of the Bank is subject, or the articles
of association or by-laws of the Bank; and the Bank has full power and authority
to authorize and to sell, and to establish the Trust that will issue, the Notes
as contemplated by this Agreement and to enter into the Transaction Agreements;
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(h) Other than as set forth or contemplated in the Prospectus and the
Prospectus Supplement, there are no legal or governmental proceedings pending
or, to the knowledge of the Bank, threatened, to which the Bank is or may be a
party or to which any property of the Bank 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 the general affairs,
business, prospects, management, financial position, stockholders, equity or
results of operations of the Bank or that would reasonably be expected to
materially adversely affect 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, the Prospectus or the Prospectus Supplement which are
not filed or described as required;
(i) Neither the Bank nor anyone acting on its behalf has taken any
action that would require qualification of the Trust Agreement under the Trust
Indenture Act; and
(j) By assignment and delivery of each of the Receivables to the Trust
as of the Closing Date, the Bank will transfer all of its right, title and
interest in, to and under the Receivables and certain related property to the
Trust, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
5. The Bank covenants and agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Notes, the Bank
will not file or cause to be filed any amendment to the Registration Statement
or supplement to the Prospectus or the Prospectus Supplement which shall be
reasonably disapproved of promptly by the Representative after reasonable notice
thereof. Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Prospectus
or the Prospectus Supplement is otherwise required under Rule 424(b), the Bank
will cause the Prospectus or the Prospectus Supplement, as the case may be,
properly completed, and any supplement thereto, to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Underwriters of such
timely filing. The Bank will promptly advise the Underwriters (i) when the
Prospectus, the Prospectus Supplement and any supplement thereto shall have been
filed (if required) with the Commission pursuant to Rule 424(b), (ii) when,
prior to termination of the offering of the Notes, any amendment to the
Registration Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or supplement to the
Prospectus or the Prospectus Supplement or for any additional information, (iv)
of the receipt by the Bank of notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Bank of notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Bank will use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof. Neither the approval by
the Representative of any amendment to the Registration Statement or any
supplement to the Prospectus or Prospectus Supplement nor any delivery of any
such amendment or supplement by the
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Underwriters or any underwriter or dealer shall constitute a waiver of any of
the conditions set forth in Section 7 or any rights of any Underwriter or other
person under Section 8;
(b) The Bank will deliver or cause to be delivered, at its expense, to
the Representative, two signed copies of the Registration Statement (as
originally filed) 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 and the Prospectus Supplement (including all amendments and
supplements thereto) as the Representative may reasonably request;
(c) 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 and Prospectus Supplement 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 or Prospectus Supplement in order to make the
statements therein, in the light of the circumstances when the Prospectus and
Prospectus Supplement are delivered to a purchaser, not misleading, or (ii) it
is necessary to amend or supplement the Prospectus or Prospectus Supplement to
comply with applicable 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 the Notes may have been sold
by the Representative on behalf of the Underwriters and upon request by the
Representative to any other dealers identified by the Representative, such
amendments or supplements to the Prospectus and/or the Prospectus Supplement as
may be necessary so that the statements in the Prospectus and Prospectus
Supplement 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 and Prospectus Supplement will comply with the law;
(d) The Bank will qualify the Notes for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Representative shall
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reasonably request and will continue such qualification in effect so long as
reasonably required for distribution of the Notes and will 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 the Representative may designate; provided, however,
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that the Bank shall not be obligated to qualify to do business in any
jurisdiction in which it is not currently so qualified; and provided further
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that the Bank shall not be required to file a general consent to service of
process in any jurisdiction;
(e) The Bank will cause the Trust to make generally available to the
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 Trust 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;
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(f) For the period from the date of this Agreement until the
retirement of the Notes the Servicer will furnish to the Representative (x)
copies of each Note and the annual statements of compliance delivered to the
Indenture Trustee pursuant to the Sale and Servicing Agreement and the annual
independent certified public accountant's servicing reports furnished to the
Indenture Trustee pursuant to the Sale and Servicing Agreement, as soon as
practicable after such statements and reports are furnished to the Indenture
Trustee and (y) copies of each amendment to the Sale and Servicing Agreement, as
soon as practicable after the execution thereof, and on each Determination Date
or as soon thereafter as practicable, the Servicer shall give notice
substantially in the form of Schedule II hereto by telex or telecopy to the
Representative of the Note Pool Factor as of the related Record Date;
(g) During the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, the Bank will not
offer, sell, contract to sell or otherwise dispose of any securities of or
guaranteed by the Bank which are substantially similar to the Notes without the
prior written consent of the Representative;
(h) 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
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Agency") is conditional upon the furnishing of documents or the taking of any
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other action by the Bank agreed upon on or prior to the Closing Date, the Bank
shall use its reasonable best efforts to furnish such documents and take any
such other action; and
(i) So long as any of the Notes are outstanding, the Bank will furnish
to the Representative, by first class mail, (i) as soon as practical after the
end of the Bank's fiscal year, copies of all documents, records and financial
statements required to be distributed to Noteholders (including Note Owners) or
filed with the Commission pursuant to the Exchange Act, or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Bank filed with any government or regulatory authority or
national securities exchange which is otherwise publicly available, as the
Representative may reasonably request.
6. The Bank will pay all costs and expenses incident to the performance
of its obligations under this Agreement, including, without limiting the
generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes, (ii)
incident to the preparation, printing and filing under the Act of the
Registration Statement, the Prospectus, any preliminary prospectus and the
Prospectus Supplement (including in each case all exhibits, amendments and
supplements thereto), (iii) 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
and disbursements of counsel for the Underwriters with respect thereto), (iv)
related to any filing with the National Association of Securities Dealers, Inc.,
(v) in connection with the printing (including word processing and duplication
costs) and delivery of the Transaction Agreements and any Blue Sky Memorandum
and the furnishing to the Underwriters and dealers of copies of the Registration
Statement, the Prospectus and the Prospectus Supplement as herein provided, (vi)
the fees and disbursements of the Bank's counsel and accountants and that
portion of the Underwriters' counsel
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fees and disbursements that are chargeable to the Bank, and (vii) any fees and
expenses payable to the Rating Agencies in connection with the rating of the
Notes.
7. The obligations of the several Underwriters to purchase and pay
for the Notes will be subject to the accuracy of the representations and
warranties on the part of the Bank herein, to the accuracy of the statements of
officers of the Bank made pursuant to the provisions hereof, to the performance
by the Bank of its obligations hereunder and to the following additional
conditions precedent:
(a) At the time this Agreement is executed and delivered by the
Bank and at the Closing Date, Deloitte and Touche, L.L.P. shall have furnished
to the Representative letters dated, respectively, as of ___________, 20__ and
as of the Closing Date substantially in the forms of the drafts to which the
Representative previously agreed.
(b) The Prospectus and Prospectus Supplement 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; 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, 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) All corporate proceedings and other legal matters incident to
the authorization, form and validity of any of the Transaction Agreements, the
Registration Statement and the Prospectus, and all other legal matters relating
to such agreements and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Bank shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(d) The Representative shall have received an officer's
certificate, dated the Closing Date, signed by the Chairman of the Board, the
President, or any Vice President of the Bank representing and warranting that,
as of the Closing Date, except to the extent that they relate expressly to
another date (in which case they will be true and correct as of such date on the
Closing Date), the representations and warranties of the Bank in this Agreement
are true and correct, that 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, that no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the best of its knowledge, are contemplated by the
Commission.
(e) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Bank or the Servicer which, in the judgment of the
Representative, materially impairs the investment quality of the Notes or makes
it impractical or inadvisable to proceed with completion of the sale of and
payment for the Notes or (ii) any downgrading in the rating of any debt
securities of the Bank or any of its direct or indirect
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subsidiaries 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).
(f) Ray, Quinney & Nebeker, special counsel to the Bank, shall have
furnished to the Representative its written opinion dated the Closing Date, in
form and substance satisfactory to the Representative, to the effect that:
(i) The Bank has been duly organized and is validly existing as
a United States banking association in good standing under the laws of the
United States with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property
requires such qualification except where the failure to be so qualified or
in good standing would not have a material adverse effect on the Bank.
(ii) The Sale and Servicing Agreement, the Trust Agreement and
the Administrative Agreement have been duly authorized, executed and
delivered by the Bank.
(iii) This Agreement has been duly authorized, executed and
delivered by the Bank.
(iv) The execution, delivery and performance of the Transaction
Agreements by the Bank will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of
the properties or assets of the Bank, pursuant to its articles of
association or by-laws, any statute, regulation or publicly issued rule or
order, or, to the best of such counsel's knowledge, after due inquiry, any
privately issued rule or order of any governmental agency or body or any
court having jurisdiction over the Bank, or its properties or any agreement
or instrument known to such counsel to which the Bank, is a party or by
which the Bank, or any of its respective properties is bound.
(v) To the best of such counsel's knowledge, after due inquiry,
no authorization, approval or consent of any court or governmental agency
or authority is necessary in connection with the execution, delivery and
performance by the Bank of any of the Transaction Agreements, except such
as may be required under the Act or the Rules and Regulations and state
securities laws, and except for such authorizations, approvals or consents
(specified in such opinion) as are in full force and effect as of the
Closing Date.
(vi) The Notes have been duly authorized by the Bank.
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(vii) Nothing has come to such counsel's attention that would
cause it to believe that as of the latest Supplement Effective Date and at
the Closing Date (x) the Registration Statement, the Prospectus and the
Prospectus Supplement (other than the financial statements and the other
accounting, statistical and financial information contained therein or
omitted therefrom) contained or contain any untrue statement of a material
fact or omitted or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (y) the
descriptions therein of statutes and governmental proceedings and contracts
and other documents are inaccurate in any material respect or do not fairly
present the information required to be shown therein.
(viii) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement, the Prospectus or the Prospectus Supplement which is not filed
or described as required.
(ix) There are no legal or governmental proceedings pending to
which the Bank is a party, or of which any property, of the Bank is the
subject, and no such proceedings are known by such counsel to be threatened
or contemplated by governmental authorities or threatened by others, in
each such case, (A) that are required to be disclosed in the Registration
Statement or (B) asserting the invalidity of all or part of any of the
Transaction Agreements (C) seeking to prevent the issuance of the Notes,
(D) that could materially and adversely affect the Bank's obligations under
any of the Transaction Agreements, or (E) seeking to affect adversely the
federal or state income tax attributes of the Notes.
(x) The Bank has full power and authority to sell and assign
the property to be sold and assigned to and deposited with the Trust as
part of the Trust pursuant to the Sale and Servicing Agreement and has duly
authorized such sale and assignment to the Trust by all necessary corporate
action.
(xi) To the best of such counsel's knowledge, immediately prior
to the transfer of Receivables by the Bank pursuant to the Sale and
Servicing Agreement, the Bank was the sole owner of all right, title and
interest in its Receivables and the other property to be transferred by it
to the Trust.
(xii) To the best of such counsel's knowledge, Receivables
transferred to the Trust by the Bank are "chattel paper" as defined in the
Relevant UCC (which is understood, for the purposes of this opinion, to be
Utah UCC and Idaho UCC).
(xiii) Such counsel is familiar with the Bank's standard
operating procedures relating to the Bank's acquisition of a perfected
first priority security interest in the vehicles financed by the Bank
pursuant to retail installment sale contracts in the ordinary course of the
Bank's business. Assuming that the Bank's standard procedures have been
followed with respect to the perfection of security interests in the
Financed Vehicles (and
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such counsel has no reason to believe that the Bank has not followed its
standard procedures in connection with the perfection of security interest
in the Financed Vehicles), the Bank has acquired or will acquire a
perfected first priority security interest in each of the Financed
Vehicles.
(xiv) To the extent that the Relevant UCC applies to the
perfection of the Trust's security interests in the Receivables and other
property, rights and interests conveyed by the Bank to the Trust, when
financing statements have been duly executed and delivered and filed or
recorded, as appropriate, in the appropriate filing offices, such security
interests will be perfected. Under the Relevant UCC, no other security
interest of any other creditor of the Bank is equal or prior to the
security interest of the Trust in such Receivables and other property
conveyed to the Trust.
(xv) All filings necessary under applicable law to perfect
both the sale of, and grant of a security interest in, Receivables and the
proceeds thereof by the Bank to the Trust have been made and, provided that
the Bank does not relocate its chief executive office in a state other than
Utah, and that the Servicer maintains the list of Receivables for
inspection by interested parties, and no administrative errors are made by
state or local agencies, no other filings (other than the filing of
continuation statements) need be made to maintain the perfection of the
transfer of the Receivables and the proceeds thereof to the Trust.
(xvi) The statements in the Registration Statement, the
Prospectus and the Prospectus Supplement under the headings "ERISA
Considerations" and "Legal Aspects of the Receivables," to the extent they
constitute descriptions of matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are correct in
all material respects.
(xvii) The Sale and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
is not required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended. The Indenture has been
qualified under the Trust Indenture Act of 1939, as amended.
(xviii) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the best of such counsel's knowledge,
threatened by the Commission; the Registration Statement, the Prospectus
and the Prospectus Supplement (other than the accounting, financial and
statistical data contained in the Registration Statement, the Prospectus or
the Prospectus Supplement, or omitted therefrom, as to which such counsel
need express no opinion) comply as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
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<PAGE>
(xix) The Notes and the Transaction Agreements each conform in
all material respects with the descriptions thereof contained in the
Registration Statement, the Prospectus and the Prospectus Supplement.
(g) Kirkland & Ellis, counsel to the Underwriters, shall have
furnished to the Representative its written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, to the effect that, (i)
assuming the due authorization, execution and delivery of the Sale and Servicing
Agreement, the Trust Agreement and the Administration Agreement by the Bank,
each of the Sale and Servicing Agreement, the Trust Agreement and the
Administration Agreement constitutes the legal, valid and binding obligation of
the Bank, enforceable against the Bank in accordance with its terms, and (ii)
when executed and authenticated by the Indenture Trustee in accordance with the
Indenture and delivered and paid for in accordance with this Agreement, the
Notes will be validly issued and outstanding and entitled to the benefits
provided by the Indenture. Such opinion may be made subject to the
qualifications that the enforceability of the terms of the Sale and Servicing
Agreement, the Trust Agreement and the Administration Agreement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors= rights, and the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(h) Kirkland & Ellis, counsel to the Underwriters, shall have
furnished to the Representative its written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, to the effect that the
statements in the Base Prospectus and Prospectus Supplement under the heading
"Material Federal Income Tax Consequences," to the extent that they constitute
descriptions of matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all material
respects.
(i) Kirkland & Ellis, counsel to the Underwriters, shall have
furnished to the Representative its written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, to the effect that, for
United States federal income tax purposes, (i) the Notes will be characterized
as indebtedness, and (ii) the Trust will not be characterized as an association
or a publicly traded partnership taxable as a corporation.
(j) Ray, Quinney & Nebeker, special Utah tax counsel to the Bank,
shall have furnished to the Representative its written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, to the
effect that:
(i) The Trust will not be classified as a separate entity on
which Utah franchise tax will be imposed, and will not be subject to other
Utah taxes measured by income, capital, profits or receipts (other than
sales, excise, or ad valorem taxes that might be imposed upon the ownership
-- -------
or sale of a vehicle acquired upon default of a Receivable);
(ii) Notes Owners who would not otherwise be subject to tax in
Utah will not be subject to Utah income or franchise taxes with respect to
interest or other amounts (including payments from the Reserve Account)
attributable solely to the beneficial
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<PAGE>
ownership of a Note (other than such Note Owner's share of sales, excise,
or ad valorem taxes that might be imposed upon the ownership or sale of a
-- -------
vehicle acquired upon default of a Receivable);
(iii) The Reserve Account will not be treated as an association
taxable as a corporation or other separate taxable entity for Utah state
tax purposes; and
(iv) Neither of the Trustees nor the Note Owners will be
treated as the owner of any portion of the Reserve Account and the funds
therein for Utah state tax purposes.
(k) Moffatt, Thomas, Barrett, Rock & Fields, special Idaho tax
counsel to the Bank, shall have furnished to the Representative its written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, to the effect that:
(i) The Trust will not be classified as a separate entity on
which Idaho franchise tax will be imposed, and will not be subject to other
Idaho taxes measured by income, capital, profits or receipts (other than
sales, excise, or ad valorem taxes that might be imposed upon the ownership
-- -------
or sale of a vehicle acquired upon default of a Receivable);
(ii) Note Owners who would not otherwise be subject to tax in
Idaho will not be subject to Idaho income or franchise taxes with respect
to interest or other amounts (including payments from the Reserve Account)
attributable solely to the beneficial ownership of a Note (other than such
Note Owner's share of sales, excise, or ad valorem taxes that might be
-- -------
imposed upon the ownership or sale of a vehicle acquired upon default of a
Receivable);
(l) Kirkland & Ellis, special New York tax counsel to the Bank, shall
have furnished to the Representative its written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, to the effect
that:
(i) The Trust will not be classified as a separate entity on
which New York state franchise tax will be imposed.
(ii) Note Owners who would not otherwise be subject to tax in
New York will not be subject to New York state income taxes with respect to
interest or other amounts (including payments from the Reserve Account)
attributable solely to the beneficial ownership of a Note.
(m) The Representative shall have received an opinion of Kirkland &
Ellis, dated the Closing Date, with respect to such other matters as the
Representative shall require and the Bank shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
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<PAGE>
(n) The Representative shall have received an opinion of counsel to
Chase Manhattan, addressed to the Underwriters and the Bank, dated the Closing
Date and satisfactory in form and substance to the Representative and its
counsel.
(o) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in connection
with the transaction described herein which is not otherwise described in this
Agreement allowing the Underwriters to rely on such opinion as if it were
addressed to the Underwriters.
(p) Perkins, Coie and Moffatt, Thomas, Barrett, Rock & Fields shall
have furnished to the Representative their written opinion, as counsel to the
Bank, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representative, relating to perfection and
priority issues in the state of Washington;
(q) Richards, Layton and Finger, counsel to the Owner Trustee, shall
have furnished to the Representative their written opinion, addressed to the
Underwriters and the Bank and dated the Closing Date, in form and substance
satisfactory to the Representative, to the effect that:
(i) The Owner Trustee is a Delaware banking corporation duly
organized and validly existing under the laws of the state of Delaware.
(ii) The Owner Trustee has the power and authority to enter into
and perform the Trust Agreement. The execution, delivery and performance
of the Trust Agreement have been duly authorized by all requisite action,
and the Trust Agreement has been duly executed and delivered by the Owner
Trustee.
(iii) No consent, approval, authorization, order of or filing
with any court, governmental agency or body (including without limitation,
any banking regulatory agency or body or arbitrator having jurisdiction
over the Owner Trustee) is required in connection with the execution and
delivery by the Owner Trustee of the Trust Agreement and the performance by
the Owner Trustee of the transactions thereunder.
(iv) The Trust Agreement, assuming due authorization, execution
and delivery thereof by the Bank, constitutes a valid and legally binding
agreement of the Owner Trustee and is enforceable against the Owner Trustee
in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and the rights of
creditors of banks in particular and by general principles of equity.
(r) Richards, Layton and Finger shall have furnished to the
Representative their written opinion with respect to the Trust, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Representative.
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<PAGE>
(s) The Representative shall have received an officer's certificate
dated the Closing Date of the Chairman of the Board, the President or any Vice
President and by a principal financial or accounting officer of the Bank and the
Servicer in which each such officer shall state that, the representations and
warranties of the Bank or the Servicer, as applicable, contained in the Sale and
Servicing Agreement are true and correct in all material respects and that the
Bank or the Servicer, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date in all material respects.
(t) The A-1 Notes shall have been rated in the highest short-term
rating category, the A-2 Notes, the A-3 Notes and the A-4 Notes shall have been
rated in the highest long-term rating category and the Class B Notes shall have
been rated at least "A", in each case by Moody's and S&P.
(u) On the Closing Date, the representations and warranties of the
Bank in the Sale and Servicing Agreement will be true and correct.
(v) Any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of the
Transaction Agreements and the Notes shall have been paid by the Bank at or
prior to the Closing Date.
8. (a) The Bank agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses reasonably incurred in
connection with investigating, preparing or defending any suit, action or
proceeding or any claim asserted, except as otherwise provided below regarding
the limitation on use of counsel) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Term Sheet, the Prospectus or the Prospectus Supplement (as amended or
supplemented if the Bank shall have furnished such amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished to the Bank in writing by any Underwriter
through the Representative expressly for use therein; provided that the
--------
foregoing indemnity with respect to 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 losses, claims or damages
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 or the Prospectus Supplement (as amended or supplemented if the Bank
shall have furnished any amendments or supplements thereto) and, if the
furnishing of a copy of the Prospectus (as so amended or supplemented) to such
person was required by law or was requested in writing by the Bank, a copy of
the Prospectus and the Prospectus Supplement (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.
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<PAGE>
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Bank, each director and officer of the Bank who signed the
Registration Statement, and each person who controls the Bank within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Bank to each Underwriter, but only
with reference to information furnished to the Bank in writing by such
Underwriter through the Representative expressly for use in the Registration
Statement, the Prospectus, the Prospectus Supplement any amendment or supplement
thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
Sections 8(a) or (b), such person (the "Indemnified Person") shall promptly
------------------
notify the person against whom such indemnity may be sought (the "Indemnifying
------------
Person") in writing, and the Indemnifying Person, upon request of the
------
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, in
which case such counsel for the Indemnified Person shall be reasonably
satisfactory to the Indemnifying Person. It is understood that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to one local counsel in each applicable jurisdiction) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and such control
persons of the Underwriters shall be designated in writing by the Representative
and any such separate firm for the Bank or either of its directors or officers
who sign the Registration Statement or control persons shall be designated in
writing by the Bank. The Indemnifying Person shall not be liable for any
settlement of any claim or proceeding effected without its written consent.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this
Section 8(c), the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
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<PAGE>
(d) If the indemnification provided for in Sections 8(a) and (b) is
unavailable other than in accordance with its terms to an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under either of Sections 8(a) or (b), in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Bank on the one hand and the Underwriters on
the other hand from the offering of the Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Bank on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Bank
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Bank and the total underwriting discounts
and the commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Notes. The relative fault of the Bank on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Bank or by any of the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Bank and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 8 were determined by pro rata
--- ----
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of Section 8, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of the Notes set forth opposite their names in
Schedule I hereto, and not joint.
(f) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
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<PAGE>
(g) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Bank set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Bank, or any of its officers or directors or any other person controlling
the Bank and (iii) acceptance of and payment for any of the Notes.
9. Notwithstanding anything herein contained, this 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 prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
American Stock Exchange; (ii) trading of any securities of or guaranteed by the
Bank shall have been suspended on any exchange or in any over-the-counter
market; (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 or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representative is material and adverse and which, in the judgment of the
Representative, makes it impracticable to market the Notes on the terms and in
the manner contemplated in the Prospectus and the Prospectus Supplement.
10. (a) This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
(b) If on the Closing Date any one or more of the Underwriters shall
fail or refuse to purchase the Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of the Notes which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Notes to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of the Notes set forth
opposite their respective names in Schedule I bears to the aggregate principal
amount of the Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative may specify, to
purchase the Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
--------
principal amount of the Notes that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 10(b) by an amount
in excess of one-ninth of such principal amount of the Notes without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase the Notes which it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
the Notes with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Notes to be purchased on such date, and
arrangements satisfactory to the Representative and the Bank for the purchase of
such Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Bank. In any such case either the Representative or the Bank shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement, the
Prospectus and the Prospectus Supplement or in any other documents or
arrangements may be effected. Any action
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<PAGE>
taken under this Section 10(b) shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Bank to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Bank shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters cannot be fulfilled, the Bank
agrees to reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative alone 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, delivered by hand 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 First Security
Bank, N.A., 79 South Main Street, Salt Lake City, Utah 84111 (Facsimile No.:
801-359-6928), Attention: Executive Vice President and Chief Financial Officer
with a copy to ________________, First Security Capital Markets, Inc., 41 East
100 South, 3rd Floor, Salt Lake City, Utah 84111, Facsimile number: 801-246-
5973.
13. 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 the Notes
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
14. 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.
* * * * *
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<PAGE>
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 among the Bank and the Underwriters in
accordance with its terms.
Very truly yours,
FIRST SECURITY BANK, N.A.
BY:_____________________________________
Name:
Title: Authorized Officer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written
________________________________
As Representative of
the Underwriters
By: ____________________________
By:_____________________________
Name:
Title:
<PAGE>
SCHEDULE I
UNDERWRITERS
Underwriters Principal Amount
------------ ----------------
(1) The Trust will also issue a Class B Note in the aggregate principal amount
of $______ which will be retained by First Security Bank, N.A.
A-1
