Exhibit 1.1
Underwriting Agreement dated as of May 14, 1998 by and among
Xxxxxxxx'x Credit Corporation and NationsBanc Xxxxxxxxxx Securities LLC,
as Representative of the Several Underwriters
XXXXXXXX'X CREDIT CORPORATION
TRANSFEROR
XXXXXXXX'X CREDIT CARD MASTER TRUST
May 14, 1998
UNDERWRITING AGREEMENT
----------------------
NationsBanc Xxxxxxxxxx Securities LLC
As Representative
(the "Representative") of the
--------------
Several Underwriters
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. Xxxxxxxx'x Credit Corporation (the "Transferor") has
------------
formed a master trust entitled the Xxxxxxxx'x Credit Card Master Trust (the
"Trust"), which has issued and will issue, from time to time, asset backed
securities ("Securities") in one or more series (each, a "Series"). Each
Security evidences and will evidence a fractional, undivided percentage interest
in the Trust. The property of the Trust includes and will include receivables
(the "Receivables") generated from time to time in a portfolio of credit card
accounts owned by an affiliate of the Transferor (the "Accounts"), collections
thereon and certain related property to be conveyed to the Trust by the
Transferor (the "Trust Property").
The Transferor entered into the Master Pooling and Servicing Agreement,
dated as of August 21, 1997 (as amended or supplemented, the "Pooling and
Servicing Agreement") among the Transferor, Norwest Bank Minnesota, National
Association, a national banking association (the "Trustee") and Xxxxxxxx'x Inc.,
as servicer (the "Servicer"). The Transferor proposes to enter into the Series
1998-2 Supplement, dated as of May 21, 1998 (the "Series 1998-2 Supplement"), to
the Pooling and Servicing Agreement, pursuant to which $200,000,000 aggregate
initial principal amount of 6.00% Class A Asset Backed Certificates, Series
1998-2 (the "Class A Certificates"), $21,500,000 aggregate initial principal
amount of 6.15% Class B Asset Backed Certificates, Series 1998-2 (the "Class B
Certificates," and together with the Class A Certificates, the "Certificates"),
a Collateral Indebtedness Interest, Series 1998-2 in the initial aggregate
principal amount of $24,000,000 (the "Collateral Interest") and $16,000,000
initial aggregate principal amount of Class D Asset Backed Certificates, Series
1998-2 (the "Class D Certificates"). To the extent not defined herein,
capitalized terms used herein shall have the meanings specified in the Pooling
and Servicing Agreement and the Series 1998-2 Supplement.
The Transferor proposes to sell to the underwriters identified on Schedule
I hereto (the "Underwriters") for whom you are acting as representative (the
"Representative") the principal amount of Certificates identified on Schedule I.
The Collateral Interest will be sold to the Enhancement Provider (as defined
herein) pursuant to the Loan Agreement, to be dated as of the Closing Date (as
defined in Section 3 hereof), among the Transferor, the Trustee and the
financial institution named therein (the "Enhancement Provider") (such
agreement, the "Enhancement Agreement").
2. Representations and Warranties of the Transfer or. The Transferor
--------------------------------------------------
represents and warrants to each Under writer as of the date hereof, as follows:
(a) a Registration Statement on Form S-3 (File No. 333-48739), including a
prospectus and such amendments thereto as may have been required to the
date hereof, relating to asset backed securities of various classes and
series has been filed with the Securities and Ex change Commission (the
"Commission"). Such Registration Statement has become effective. No stop
orders suspending the effectiveness of the Registration Statement have been
issued and no procedures for that purpose have been instituted or to the
Transferor's knowledge, threatened by the Commission. A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Certificates and additional
information concerning the Certificates, including the terms thereof, and
the Transferor and its affiliates' credit card business has been prepared
and will be filed timely pursuant to Rule 424(b) of the Rules and
Regulations of the Commission (the "Rules and Regulations") following the
execution of this Agreement.
-2-
Such Registration Statement, as from time to time amended and supplemented,
is referred to as the "Registration Statement" and the final form of
Prospectus included in the Registration Statement, as supplemented by the
Prospectus Supplement in the form to be filed with the Commission pursuant
to Rule 424(b) is referred to as the "Prospectus". The Prospectus
Supplement shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Certificates to which it relates; and 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, and the
conditions of Rule 415 under the Act, have been satisfied with respect to
the Registration Statement;
(b) as of the date of execution of this Agreement, the Registration
Statement and the Prospectus, except with respect to any modification to
which you have agreed in writing, shall be in all substantive respects in
the form furnished to you prior to such date or, to the extent not
completed on such date, shall contain only such specific additional
information and other changes (beyond that contained in the latest
preliminary Prospectus Supplement that has previously been furnished to
you) as the Transferor has advised you, prior to such time will be included
or made therein;
(c) on the effective date of the Registration Statement, the Registration
Statement and the Prospectus complied in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and did
not include any untrue statement of a material fact or, in the case of the
Registration Statement, omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
and, in the case of the Prospectus, omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and on the date hereof and on
the Closing Date (as defined in Section 3 hereof), the Registration
Statement and the Prospectus will comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and
neither of such documents included or 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 the foregoing does not apply to information
-----------------
contained in or omitted from either of the documents based upon written
information furnished to the Transferor by any Underwriter specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus;
-3-
(d) the Transferor is a corporation duly organized and validly existing in
good standing under the laws of the State of Nevada, with full power,
authority and legal right to own its properties and conduct its business
as described in the Prospectus, is duly qualified to do business and is in
good standing (or is exempt from such requirements), and has obtained all
necessary licenses and approvals (except with respect to the state
securities or Blue Sky laws of various jurisdictions) in each jurisdiction
in which failure to so qualify or obtain such licenses and approvals would
have a material adverse effect on the interests of Certificateholders under
the Pooling and Servicing Agreement or under the Series 1998-2 Supplement;
(e) the Certificates, the Collateral Interest and the Class D Certificates
on the date of this Agreement, will have been duly and validly authorized
and, when the Certificates and the Class D Certificates are at Closing duly
and validly executed by or on behalf of the Transferor, authenticated by
the Trustee and delivered in accordance with the Pooling and Servicing
Agreement and the Series 1998-2 Supplement and, when the Certificates, the
Collateral Interest and the Class D Certificates are delivered and paid for
as provided herein, will be validly issued and outstanding and entitled to
the benefits and security afforded by the Pooling and Servicing Agreement
and the Series 1998-2 Supplement;
(f) the execution, delivery and performance by the Transferor of this
Agreement, the Enhancement Agreement, the Pooling and Servicing Agreement,
the Series 1998-2 Supplement and the Certificates, the Collateral Interest
and the Class D Certificates, and the consummation by the Transferor of the
transactions provided for herein and therein, have been, or will have been,
duly authorized by the Transferor by all necessary corporate action on the
part of the Transferor; and neither the execution and delivery by the
Transferor of such instruments, nor the performance by the Transferor of
the transactions herein or therein contemplated, nor the compliance by the
Transferor with the provisions hereof or thereof, will (i) conflict with or
result in a breach of any of the terms and provisions of, or constitute a
default under, any of the provisions of the articles or certificate of
incorporation or by-laws of the Transferor, or (ii) conflict with any of
the provisions of any law, government rule, regulation, judgment, decree or
order binding on the Transferor or its properties or (iii) conflict with
any of the provisions of any indenture, mortgage, contract or other
instrument to which the Transferor is a party or by which it is bound or
(iv) result in the creation or imposition of any
-4-
lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument other than
pursuant to the Pooling and Servicing Agreement and the Series 1998-2
Supplement;
(g) the Pooling and Servicing Agreement constitutes a legal, valid and
binding agreement of the Transferor, enforceable against the Transferor in
accordance with its terms, except to the extent that the enforce ability
thereof may be subject to bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights in general and to general
principles of equity (whether considered in a proceeding at law or in
equity);
(h) when executed and delivered by the parties thereto, the Series 1998-2
Supplement and the Enhancement Agreement will each constitute a legal,
valid and binding agreement of the Transferor, enforceable against the
Transferor in accordance with its terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights in general
and to general principles of equity (whether considered in a proceeding at
law or in equity);
(i) all approvals, authorizations, consents, orders or other actions of any
person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the foreign or state
securities or Blue Sky laws of various jurisdictions), required in
connection with the valid and proper authorization, issuance and sale of
the Certificates, the Collateral Interest and the Class D Certificates
pursuant to this Agreement, the Enhancement Agreement, the Pooling and
Servicing Agreement and the Series 1998-2 Supplement, have been or will be
taken or obtained on or prior to the Closing Date;
(j) this Agreement has been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement
and the Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of the Transferor since January 21,
1998;
(l) any taxes, fees and other governmental charges in connection with the
execution, delivery and performance by
-5-
the Transferor of this Agreement, the Pooling and Servicing Agreement, the
Series 1998-2 Supplement, the Enhancement Agreement and the Certificates
shall have been paid or will be paid by or on behalf of the Transferor at
or prior to the Closing Date to the extent then due; and
(m) the Certificates, the Collateral Interest, the Class D Certificates,
the Pooling and Servicing Agree ment, the Series 1998-2 Supplement and the
Enhancement Agreement conform in all material respects to the descriptions
thereof in the Prospectus.
3. Purchase, Sale and Delivery of Certificates. On the basis of the
-------------------------------------------
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Transferor agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Transferor, the principal amount of the Certificates set forth opposite
each Underwriter's name in Schedule I hereto at the purchase price of 99.59% of
the principal amount of such Certificates with respect to the Class A
Certificates and 99.52% of the principal amount of such Certificates with
respect to the Class B Certificates.
Delivery of and payment for the Certificates will be made at the
offices of Xxxxxx & Bird LLP, 0000 X. Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000-0000, on May 21, 1998 (the "Closing Date"), or at such other time
thereafter or other place as you and the Transferor shall agree upon. Delivery
of such Certificates shall be made by the Transferor to the Representative for
the respective accounts of the several Underwriters against payment by the
several Underwriters, through the Representative of the purchase price thereof
by one or more wires of funds immediately available at Closing to an account
designated by the Transferor. Delivery of the Certificates shall be made through
the facilities of The Depository Trust Company ("DTC"). The Certificates so to
be delivered shall be global certificates registered in the name of Cede & Co.,
as nominee for DTC. The number and denomination of definitive certificates so
delivered shall be specified by DTC.
4. Offering by the Underwriters. It is understood that the several
----------------------------
Underwriters propose to offer the Certificates subject to this Agreement for
sale to the public as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby covenants and
---------------------------
agrees with each Underwriter that:
(a) prior to the execution of this Agreement, the Transferor will prepare
a Prospectus Supplement setting forth
-6-
the amount of Certificates and the terms thereof, the price at which such
Certificates are to be purchased by the Underwriters from the Transferor,
either the initial public offering price or the method by which the price
at which the Certificates are to be sold will be determined, the selling
concessions and allowances, if any, and such other information as the
Underwriters and the Transferor may mutually agree, and which the
Transferor deems appropriate in connection with the offering of the
Certificates, but the Transferor will not file any amendments to the
Registration Statement as in effect with respect to the Certificates, or
any amendments or supplements to the Prospectus, unless it shall first have
delivered copies of such amendments or supplements to you, or if you shall
have reasonably objected thereto promptly after receipt thereof; the
Transferor will immediately advise you and your counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of any
order or communication suspending or preventing, or threatening to suspend
or prevent, the offer and sale of the Certificates or of any proceedings or
examinations that may lead to such an order or communication, whether by or
of the Commission or any authority administering any state securities or
Blue Sky law, as soon as practicable after the Transferor is advised
thereof, and will use every reasonable effort both to prevent the issuance
of any such order or communication and to obtain as soon as possible its
lifting, if issued;
(b) if, at any time when the Prospectus is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the
Transferor will promptly prepare and (subject to review and no reasonable
objection by you as described in Section 5(a) hereof) file with the
Commission an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, within two
Business Days thereafter, furnish to you as many copies of the Prospectus
as amended or supplemented as you may reason ably request; provided,
---------
however, that your consent to any amendment shall not constitute a waiver
-------
of any of the conditions of Section 6 hereof;
-7-
(c) the Transferor will make generally available to the holders of the
Certificates (the "Certificate holders"), in each case as soon as
reasonably practicable and within the time specified by, a statement which
will satisfy the provisions of, Section 11(a) of the Act and Rule 158 of
the Commission with respect to the Certificates;
(d) the Transferor will furnish to each Under writer copies of the
Registration Statement (at least one copy to be delivered to the
Representative will be signed and will include all documents and exhibits
thereto or incorporated by reference therein) and all amendments thereto
and, so long as delivery of a Prospectus by an Underwriter or dealer may
be required by the Act, the Prospectus, and all amendments thereto and
supplements thereto, in each case as soon as available and in such
quantities as you reasonably request;
(e) the Transferor will assist you in arranging for the qualification of
the Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you designate and will
continue to assist you in maintaining such qualifications in effect so long
as required for the distribution and will file or cause to be filed such
statements and reports with respect to the distribution as may be required
by the laws of each jurisdiction in which the Certificates have been
qualified as provided above; provided, however, that neither the Transferor
-----------------
nor the Trust shall be required to qualify to do business in any
jurisdiction where it is now not qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process;
(f) except as otherwise specified in this Agreement, the Transferor will
pay all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters for any expenses reasonably
incurred by them in connection with qualification of the Certificates and
determination of their eligibility for investment under the laws of such
jurisdictions as you may designate and the reproduction of memoranda
relating thereto, for any fees charged by investment rating agencies for
the rating of such Certificates and, to the extent previously agreed upon
with you, for reasonable expenses incurred in distributing the Prospectus
(including any amendments and supplements thereto) to the Underwriters and
the reasonable fees and disbursements of the Underwriter's counsel; and
(g) the Transferor will, for so long as Certificates purchased pursuant
hereto remain outstanding, deliver or
-8-
cause to be delivered to you copies of the annual servicer's certificate
and the annual account ants' reports delivered to the Trustee pursuant to
the Pooling and Servicing Agreement.
6. Conditions to the Obligations of the Underwriters. The obligations
---------------------------------------------------
of the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Transferor herein as of the date hereof and the Closing Date, to the accuracy of
the statements of the Transferor made pursuant to the provisions hereof, to the
performance by the Transferor in all material respects of its obligations here
under and to the following additional conditions precedent:
(a) you shall have received a letter from Coopers & Xxxxxxx L.L.P.,
independent public accountants, and, if requested by you, a letter from
such accountants, dated the Closing Date, each in the forms heretofore
agreed to;
(b) all actions required to be taken and all filings required to be made
by the Transferor under the Act prior to the Closing Date for the
Certificates shall have been duly taken or made; and prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Transferor, threatened by
the Commission;
(c) the Certificates offered by means of the Registration Statement shall
be rated at the time of issuance, in the case of the Class A Certificates,
in the highest rating category by Xxxxx'x Investors Service, Inc.
("Moodys") and Standard & Poor's Ratings Service ("Standard & Poor's") and
in the case of the Class B Certificates, in one of the three highest rating
categories by Moody's and Standard and Poor's, and in each case shall not
have been placed on any credit watch with a negative implication for
downgrade;
(d) you shall have received opinions of Xxxxxx & Bird LLP, counsel to the
Transferor, of such local or corporate counsel to the Transferor and its
affiliates and of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP as to matters of
New York law, dated the Closing Date, substantially to the effect that:
(i) the Transferor is a corporation duly organized, validly
existing and in good standing under the laws of the state of Nevada,
with full power and authority to own its assets and operate its
business as described in the Prospectus, and had at all relevant times
and now has, the power, authority and legal right to acquire,
-9-
own and service the Receivables transferred or proposed to be
transferred to the Trust as described in the Prospectus;
(ii) the Transferor has full power and authority to sign the
Registration Statement and to execute and deliver this Agreement, the
Enhancement Agreement and the Series 1998-2 Supplement and to
consummate the transactions contemplated herein, therein and in the
Receivables Purchase Agreement and the Pooling and Servicing
Agreement;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of the Transferor and
have been duly executed and delivered by the Transferor;
(iv) the Certificates have been duly authorized by all necessary
action of the Transferor;
(v) this Agreement, the Enhancement Agreement, the Receivables
Purchase Agreement, the Pooling and Servicing Agreement and the Series
1998-2 Supplement each constitutes the legal, valid and binding
agreement of the Transferor, enforceable against the Transferor in
accordance with its terms, subject, as to enforcement, to (A) the
effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, conservatorship, receivership, or other
similar laws of general applicability relating to or affecting
creditors' rights generally (B) the application of general principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or providing for contribution with respect to such
liability where such indemnification or contribution is contrary to
public policy;
(vi) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
applicable law for the consummation of the transactions contemplated
herein, the Receivables Purchase Agreement, the Pooling and Servicing
Agreement, the Series 1998-2 Supplement, or the Enhancement Agree
ment, except such as have been obtained or made and such as may be
required under state securities or Blue Sky laws;
-10-
(vii) the execution and delivery of the Series 1998-2 Supplement
and the Enhancement Agreement, the performance by the Transferor of
its obligations under this Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, the Series 1998-2
Supplement and the Enhancement Agreement, the transfer of the
Receivables to the Trust, the issuance and sale of the Certificates,
and the consummation of any other of the transactions contemplated
herein, in the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Series 1998-2 Supplement or the Enhancement
Agreement, will not conflict with, result in a breach of or violation
of any of the terms of, or constitute a default under, the articles of
incorporation or by-laws of the Transferor, each as amended, the terms
of any indenture or other agree ment or instrument known to such
counsel to which the Transferor is a party or by which it or its
properties are bound or any rule, order known to such counsel, statute
or regulation, of any court, regulatory body, administrative agency or
govern mental body having jurisdiction over the Transfer or; provided,
--------
however, that such counsel need ex press no opinion as to state
-------
securities or Blue Sky laws or the securities laws of any foreign
jurisdiction;
(viii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge, there
are no actions, proceedings or investigations pending or threatened
before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, the Series 1998-2
Supplement, the Enhancement Agreement or the Certificates, (B) seeking
to prevent the issuance of the Certificates or the consummation of any
of the transactions contemplated by this Agreement, the Receivables
Purchase Agreement, the Pooling and Servicing Agreement, the Series
1998-2 Supplement, the Enhancement Agreement or the Certificates,
which if adversely determined would materially and adversely affect
the performance by the Transferor of its obligations under, or the
validity or enforceability of, this Agreement, the Receivables
Purchase Agreement, the Pooling and Servicing Agreement, the Series
1998-2 Supplement, the Enhancement Agreement or the Certificates, or
(C) seeking adversely to affect the federal income tax attributes of
the Certificates as described in the Prospectus under the headings
"Federal Income Tax Consequences";
-11-
(ix) the Registration Statement has become effective 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
threatened under the Act; and the Registration Statement and the
Prospectus (other than the financial, numerical and statistical
information contained therein as to which such counsel need 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;
(x) this Agreement, the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Series 1998-2 Supplement, any
Enhancement Agreement and the Certificates conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus;
(xi) the Pooling and Servicing Agreement and the Series 1998-2
Supplement will not be required to be qualified under the Trust
Indenture Act of 1939, as amended, and neither the Transferor nor the
Trust is now, and immediately following the sale of the Certificates
pursuant hereto will be, required to be registered under the 1940 Act;
(xii) the statements in the Prospectus under the headings "Certain
Federal Income Tax Consequences" and "Certain Federal Income Tax
Consequences of the Offered Certificates" to the extent they
constitute matters of Federal law or legal conclusions with respect
thereto, have been reviewed by such counsel and are correct in all
material respects; and
(xiii) the statements in the Prospectus under the headings "Certain
Legal Aspects of the Receivables" and "ERISA Considerations," to the
extent they constitute matters of Federal 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, subject to its customary practices
and limitations relating to the scope of such counsel's participation in
the preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained
-12-
therein, it has no reason to believe that at its effective date the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus on the Closing Date includes any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than financial, numerical and statistical
information contained therein as to which such counsel need express no
opinion); in rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Transferor, the Servicer, the Seller and
public officials;
(e) you shall have received opinions of Xxxxxx & Bird LLP, special counsel
for the Seller, and of such local or corporate counsel to the Seller, dated
the Closing Date, in form and substance reasonably satisfactory to you and
your counsel, to the effect that, with respect to the Seller:
(i) the Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, with full power and authority to own its assets and operate
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 Receivables transferred or proposed to be
transferred to the Transferor as described in the Prospectus;
(ii) the Seller has full power and authority as a national banking
association to execute and deliver the Receivables Purchase Agreement
and to consummate the transactions contemplated therein;
(iii) the execution, delivery and performance of the Receivables
Purchase Agreement has been authorized by all necessary action on the
part of the Seller and such agreement has been duly executed and
delivered by the Seller;
(iv) the Receivables Purchase Agreement constitutes the legal, valid
and binding agreement of the Seller, enforceable against the Seller in
accordance with its terms, subject, as to enforce ment, to (A) the
effect of bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, conservatorship, receivership, or other similar laws of
general
-13-
applicability relating to or affecting creditors' rights generally or
the rights of creditors of national banking associations, (B) the
application of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and
(C) the unenforceability under certain circumstances of provisions
indemnifying a party against liability or providing for contribution
with respect to such liability where such indemnification or
contribution is contrary to public policy;
(v) no consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required under
applicable law for the consummation of the transactions contemplated
by the Receivables Purchase Agreement, except such as have been
obtained or made;
(vi) the execution, delivery and performance by the Seller of its
obligations under the Receivables Purchase Agreement, the transfer of
the Receivables to the Trust, the sale of the Receivables purported to
be sold thereunder, and the consummation of any other of the
transactions contemplated in such agreement, will not 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 Seller, each as amended, the terms of any indenture or other agree
ment or instrument known to such counsel to which the Seller is a
party or by which it or its properties are bound or any rule, order
known to such counsel, statute or regulation, of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Seller; and
(vii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of the
Receivables Purchase Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by such
agreement, which if adversely determined would materially and
adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, such agreement, or (C)
seeking adversely to affect the federal income tax attributes of the
Certificates as described in the
-14-
Prospectus under the headings "Federal Income Tax Consequences".
(f) you shall have received an opinion of Xxxxxx & Bird LLP, special
counsel for the Servicer, and/or such local or corporate counsel to the
Servicer, dated the Closing Date, substantially to the effect that:
(i) the Servicer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Tennessee, with
full power and authority to own its assets and operate its business
as described in the Prospectus, and had at all relevant times and
now has, the power, authority and legal right to service the
Receivables transferred or proposed to be transferred to the Trust
as described in the Prospectus;
(ii) the Servicer has full power and authority to execute and
deliver the Series 1998-2 Supplement and the indemnification
agreement between you and the Servicer, dated the date hereof (the
"Indemnification Agreement") and to consummate the transactions
contemplated herein, therein and in the Pooling and Servicing
Agreement;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of the Servicer and
have been duly executed and delivered by the Servicer;
(iv) the Pooling and Servicing Agreement and the Series 1998-2
Supplement each constitutes the legal, valid and binding agreement
of the Servicer, enforceable against the Servicer in accordance with
its terms, subject, as to enforcement, to (A) the effect of
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, conservatorship, receivership, or other similar laws of
general applicability relating to or affecting creditors' rights
generally, (B) the application of general principles of equity
(regardless of whether enforceability is considered in a proceeding
in equity or at law) and (C) the unenforceability under certain
circumstances of provisions indemnifying a party against liability
or providing for contribution with respect to such liability where
such indemnification or contribution is contrary to public policy;
(v) no consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required under
applicable laws for the consummation of the transactions
contemplated herein,
-15-
the Pooling and Servicing Agreement or the Indemnification
Agreement, except such as have been obtained or made and such as may
be required under state securities or Blue Sky laws;
(vi) the execution and delivery of the Series 1998-2 Supplement, the
performance by the Servicer of its obligations under the Pooling and
Servicing Agreement and the Series 1998-2 Supplement, and the
consummation of any of the transactions contemplated by the Pooling
and Servicing Agreement, the Series 1998-2 Supplement or the
Indemnification Agreement, will not conflict with, result in a
breach of or violation of any of the terms of, or constitute a
default under, the certificate or articles of incorporation or by-
laws of the Servicer, each as amended, the terms of any indenture or
other agreement or instrument known to such counsel to which the
Servicer is a party or by which it or its properties are bound or
any rule, order known to such counsel, statute or regulation, of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Servicer; provided, however, that such
-------- -------
counsel need express no opinion as to state securities or Blue Sky
laws; or
(g) you shall have received an opinion or opinions from special tax
counsel to the Transferor, dated the Closing Date, and in form and
substance satisfactory to you and your counsel, to the effect that the
Certificates are properly characterized as indebtedness for Mississippi
and Illinois state income tax purposes, that the Trust is properly
characterized as not an association (or publicly traded partnership)
taxable as a corporation under the laws of the States of Illinois or
Mississippi and that the Trust will not be subject to any income,
franchise, excise or other tax under the laws of the States of Mississippi
or Illinois.
(h) you shall have received an opinion or opinions from Xxxxxx & Bird
LLP, special federal tax counsel to the Transferor, dated the Closing
Date, and in form and substance acceptable to you and your counsel, to the
effect that the Certificates are properly characterized as indebtedness
for federal income tax purposes and that the Trust is properly
characterized as not an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes.
(i) you shall have received an opinion or opinions from Xxxxxx Xxxx
LLP, special counsel for the Seller and the Transferor, and/or such local
counsel to the Transferor dated
-16-
the Closing Date, in form and substance satisfactory to you and your
counsel, with respect to (A) the validity, perfection and priority of the
Trust's interest in the Receivables and the proceeds thereof, and the
validity, perfection and priority of the Transferor's interest in the
Receivables and the proceeds thereof, (B) the enforceability of the
transfers by the Seller to the Transferor under the Receivables Purchase
Agreement notwithstanding the insolvency of the Seller, (C) the
nonconsolidation of the assets and liabilities of the Transferor with
assets and liabilities of its parent(s) in the event of the insolvency or
bankruptcy of such parent(s), and (D) with respect to other related
matters in a form previously approved by you and your counsel; in
addition, you shall have received a reliance letter with respect to any
opinion that the Transferor is required to deliver to the Rating Agency;
(j) you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, special counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, in form and substance satisfactory to you, with
respect to the validity of the Certificates, the Registration Statement,
the Prospectus and other related matters as you may require, and the
Transferor shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters;
(k) you shall have received, with respect to the Transferor, a
certificate, dated the Closing Date, of the Treasurer or a Senior Vice
President or more senior officer of the Transferor in which such officer
shall state that, to his or her knowledge after reasonable investigation,
(A) the representations and warranties of the Transferor in this Agreement
are true and correct in all material respects on and as of the Closing
Date, (B) the Transferor has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (C) the Registration
Statement has become effective, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted, or to the knowledge of such officer, are
threatened by the Commission and (D) subsequent to the date of the
Prospectus, there has been no material adverse change in the condition
(financial or otherwise) of the Transferor except as set forth in or
contemplated in the Registration Statement and the Prospectus or as
described in such certificate;
-17-
(l) you shall have received, with respect to Xxxxxxxx'x Inc.
("Xxxxxxxx'x"), a certificate, dated the Closing Date, of the Treasurer or
any Senior Vice President or more senior officer of Xxxxxxxx'x in which
such officer, to his or her knowledge after reasonable investigation,
shall state that subsequent to the date of the Prospectus, there has been
no material adverse change in the condition (financial or otherwise) of
Xxxxxxxx'x except as set forth in or contemplated in the Registration
Statement and the Prospectus or as described in such certificate;
(m) you shall have received an opinion of Xxxxxxx and Xxxxxx, counsel
to the Trustee, or an opinion of the Trustee's in-house counsel, addressed
to you dated the Closing Date, in form and substance satisfactory to you
and your counsel, and to the Transferor and the Servicer and their
counsel, to the effect that:
(i) the Trustee has been duly incorporated and is validly existing
as a national banking association under the laws of the United
States and has the power and authority to enter into the Series
1998-2 Supplement and the Enhancement Agreement and to perform all
actions required of it under the Pooling and Servicing Agreement,
the Series 1998-2 Supplement and the Enhancement Agreement;
(ii) each of the Pooling and Servicing Agreement, the Series 1998-2
Supplement and the Enhancement Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid
and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as such enforceability
may be limited by (A) bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or other
similar laws now or hereafter in effect relating to the enforcement
of creditors' rights in general, as such laws would apply in the
event of a bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or similar occurrence
affecting the Trustee, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the Certificates have been duly authenticated and delivered by
the Trustee;
(iv) the execution and delivery of the Series 1998-2 Supplement
and the Enhancement Agreement by the Trustee
-18-
and the performance by the Trustee of the respective terms of the
Pooling and Servicing Agreement, the Series 1998-2 Supplement and
the Enhancement Agreement does not conflict with or result in a
violation of (A) any law or regulation of the United States of
America or the state of Minnesota governing the banking or trust
powers of the Trustee, or (B) the articles of association or by-laws
of the Trustee; and
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the state of Minnesota having jurisdiction over the banking or trust
powers of the Trustee is required in connection with the execution
and delivery by the Trustee of the Series 1998-2 Supplement and the
Enhancement Agreement or the performance by the Trustee there under
or under the Pooling and Servicing Agreement;
(n) you shall have received an opinion or opinions of counsel to the
Enhancement Provider, dated the Closing Date, and satisfactory in form
and substance to you and your counsel, to the effect that:
(i) the Enhancement Provider is duly organized and validly existing
under the laws of the jurisdiction of its incorporation, is duly
qualified and/or licensed to do business in all jurisdictions where
the nature of its operations as contemplated in the Enhancement
Agreement requires such qualification, and has the power and
authority (corporate and other) to enter into the Enhancement
Agreement and to perform its obligations thereunder; and
(ii) the Enhancement Agreement has been duly authorized, executed
and delivered by the Enhancement Provider, and constitutes the
legal, valid and binding obligation of the Enhancement Provider,
enforceable in accordance with its terms, except to the extent that
the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, conservatorship, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights as such
laws would apply in the event of the insolvency, liquidation or
reorganization or other similar occurrence with respect to the
Enhancement Provider or in the event of any moratorium or similar
occurrence affecting the Enhancement Provider.
(o) you shall have received reliance letters, if applicable, with
respect to any opinions delivered to the
-19-
Transferor by foreign counsel of the Enhancement Provider for the
Enhancement Agreement, if any, which opinions shall include matters
relating to (i) the due organization of the Enhancement Provider, (ii) the
authorization, execution, delivery and performance by the Enhancement
Provider of the Enhancement Agreement and the binding effect of the
Enhancement Agreement, and (iii) the enforceability in the foreign
jurisdiction in which such Enhancement Provider is located of a judgment
obtained under the Enhancement Agreement in a United States federal court
or in a court of the State of New York; such reliance letters shall
include all matters that are contained in the opinions of foreign counsel;
The Transferor will furnish to you conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification.
---------------
(a) The Transferor will indemnify and hold harm less each Underwriter
and each person, if any, who controls any Underwriter within the meaning
of the Act or the Exchange Act and the respective officers, directors and
employees of each such person, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will
reimburse each Underwriter and each such officer, director, employee or
controlling person for any legal or other expenses reasonably incurred by
such Underwriter and each such officer, director, employee or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action, subject to the following proviso, as such
expenses are incurred; provided, however, that (i) the Transferor 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 any such untrue statement or
alleged untrue statement in or omission or alleged omission made in any
such documents in reliance upon and in conformity with written information
furnished to the Transferor by an Underwriter specifically for use therein
and (ii) such indemnity with
-20-
respect to any untrue statement or alleged untrue statement or omission
or alleged omission in the Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Certificates which are the subject thereof, if such person
was not given or sent a copy of the Prospectus including the Prospectus
Supplement excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Certificates to such person
in any case where such delivery is required by the Act and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in the Preliminary Prospectus and forming the
basis for the related cause of action was corrected in the Prospectus or
the Prospectus Supplement. This indemnity agreement will be in addition to
any liability which the Transferor may otherwise have.
(b) Each Underwriter severally, and not jointly, will indemnify and
hold harmless the Transferor, each of its directors, each of its officers
who have signed the Registration Statement and each person, if any, who
controls the Transferor within the meaning of the Act or the Exchange Act
and the respective officers, directors and employees of each such person
against any losses, claims, damages or liabilities to which the Transferor
or any such director, officer or controlling person may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Transferor by such Underwriter specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Transferor or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred. This indemnity
agreement will be in addition to any liability that such Underwriter may
otherwise have.
-21-
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement
thereof; but the omission and/or delay so to notify the indemnifying party
will not relieve it from any liability which it may have to any
indemnified party otherwise than in this Section unless such omission
caused actual prejudice to the party not notified; in case any such action
is brought against any indemnified party, and it notified the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and, to the extent that it may elect by written
notice jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified
party in connection with defense thereof other than reasonable costs of
investigation. If the defendants in any action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties that are different from or addition
al to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm (in addition to local counsel,
if any) for all such indemnified parties. No indemnifying party may avoid
its duty to indemnify under this Section 7 if such indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement or compromise of, or consent to the entry of any judgement
in, any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on all
claims that are the subject matter of such action. An indemnifying party
shall not be liable for any settlement of any claim effected without its
written consent.
-22-
(d) If recovery is not available under the foregoing indemnification
provisions of this Section for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered (i) the relative benefit received by
the Transferor on the one hand and the Underwriters on the other hand from
the offering of the Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, the relative benefits
referred to in clause (i) above but also the relative fault of the
Transferor on the one hand and the Underwriters on the other hand in
connection with the statement or omission that resulted in such
liabilities and expenses as well as any other relevant equitable
considerations. The relative benefits received by the Transferor on the
one hand and the Underwriters on the other hand shall be deemed to be in
the same proportion as the total net proceeds of the offering of the
Certificates (before deducting expenses) received by the Transferor bear
to the total underwriting discounts and commissions received by the
Underwriters in connection with the offering of the Certificates. The
relative fault of the parties shall be determined by reference to, among
other things, the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any
other equitable considerations appropriate under the circumstances. The
Transferor and the Underwriters agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose).
-23-
8. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
participating in an offering of Certificates default in their obligations to
purchase Certificates here under and the aggregate principal amount of such
Certificates which such defaulting Underwriter or Underwriters agreed, but
failed, to purchase does not exceed 10% of the total principal amount of the
Certificates, you may make arrangement satisfactory to the Transferor for the
purchase of such Certificates by other persons, including any of the
Underwriters participating in such offering, but if no such arrangements are
made within a period of 36 hours after the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
total commitments hereunder, to purchase the Certificates which such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Certificates with respect to
which such default or defaults occur is more than 10% of the total principal
amount of the Certificates and arrangements satisfactory to you and the
Transferor for the purchase of such Certificates by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Transferor,
except as provided in Section 10. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Termination of the Obligations of the Underwriters. The obligations
---------------------------------------------------
of the Underwriters to purchase the Certificates on the Closing Date shall be
terminable by the Underwriters by written notice delivered to the Transferor if
at any time on or prior to the Closing Date (i) trading in securities generally
on the New York Stock Exchange shall have been suspended or materially limited,
or there shall have been any setting of minimum prices for trading on such
exchange of the securities of Xxxxxxxx'x or any suspension of trading of the
securities of Xxxxxxxx'x on any exchange or in the over-the-counter market, (ii)
a general moratorium on commercial banking activities in New York, Alabama,
Illinois or Mississippi shall have been declared by any of Federal, New York,
Alabama, Illinois or Mississippi authorities, (iii) there shall have occurred
any material outbreak or escalation of hostilities or other calamity or crisis,
the effect of which on the financial markets of the United States is such as to
make it, in your reasonable judgement, as representative of the Underwriters,
impracticable to market the Certificates on the terms and in the manner
contemplated in the Prospectus, (iv) any change or any development involving a
prospective change, materially and adversely affecting (A) the Trust Property
taken as whole or (B) the business or properties of
-24-
the Transferor or Xxxxxxxx'x occurs, which, in your reasonable judgment as
representative of the Underwriters, in the case of either (A) or (B), makes it
impracticable to market the Certificates on the terms and in the manner
contemplated in the Prospectus.
10. Survival of Certain Representations and Obligations. The respective
----------------------------------------------------
indemnities, agreements, representations, warranties and other statements by the
Transferor or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Underwriters, the Transferor or any of their respective officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates.
If this Agreement is terminated pursuant to Sections 8 or 9 or if for
any reason the purchase of the Certificates by the Underwriters is not
consummated, the Transferor shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5(f), and the obligations of the
Transferor and the Underwriters pursuant to Section 7 shall remain in effect.
11. Representation of the Underwriters. Each of the Underwriters
----------------------------------
represents and warrants to, and agrees with, the Transferor that (w) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services Xxx
0000 (Investment Advertisements) (Exemptions) Order 1996 or who is a person to
whom the document may otherwise lawfully be issued or passed on, (x) it has
complied and shall comply with all applicable provisions of the Financial
Services Xxx 0000 with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom and (y) if that
Underwriter is an authorized person under the Financial Services Xxx 0000, it
has only promoted and shall only promote (as that term is defined in Regulation
1.02 of the Financial Services (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United Kingdom the scheme described in the Prospectus
if that person is of a kind described either in Section 76(2) of the Financial
Services Xxx 0000 or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991.
12. Notices. All communications hereunder will be in writing and, if sent
-------
to an Underwriter, will be mailed, delivered or telecopied to NationsBanc
Xxxxxxxxxx Securities LLC, NationsBank Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxxxx, facsimile
number 000-000-0000 or if sent to the Transferor, will be mailed,
-25-
delivered or telecopied to Xxxxxxxx'x Credit Corporation, 000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx, facsimile number (205)
940-4709, or such other address specified in the applicable Terms Agreement;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
-----------------
be mailed, delivered or telecopied to such Underwriter at the address furnished
by it in Schedule I hereto.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-26-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it
will become a binding agreement among the Transferor and the several
Underwriters in accordance with its terms. Alternatively, the execution of
this Agreement by the Transferor and its acceptance by or on behalf of the
Underwriters may be evidenced by an exchange of telecopied or other written
communications.
Very truly yours,
XXXXXXXX'X CREDIT CORPORATION,
as Transferor
By /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
as Representative of the
several Underwriters
By /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Principal
-27-
Schedule I
----------
Principal Amount of
Class A Certificates
--------------------
NationsBanc Xxxxxxxxxx Securities LLC... $66,668,000
BancAmerica Xxxxxxxxx Xxxxxxxx.......... 66,666,000
X.X. Xxxxxx Securities Inc.............. 66,666,000
Principal Amount of
Class B Certificates
--------------------
NationsBanc Xxxxxxxxxx Securities LLC... $21,500,000
