1
EXHIBIT 1.1
FORM OF
XXXXXXXX'X CREDIT CORPORATION, as TRANSFEROR
XXXXXXXX'X CREDIT CARD MASTER TRUST
JULY __, 1997
UNDERWRITING AGREEMENT
----------------------
(STANDARD TERMS)
2
NationsBanc Capital Markets, Inc.,
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")
proposes to form a master trust entitled the Xxxxxxxx'x Credit Card Master
Trust (the "Trust"), which will issue, from time to time, asset backed
securities ("Securities") in one or more series (each, a "Series"). Each
Security will evidence a fractional, undivided percentage interest in the
Trust. The property of the Trust will include receivables (the "Receivables")
generated from time to time in a portfolio of credit card accounts owned by
certain affiliates 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 proposes to enter into the Pooling and Servicing
Agreement, dated as of ________, 1997 (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 1997-2
Supplement, dated as of ________, 1997 (the "Series 1997-2 Supplement"), to the
Pooling and Servicing Agreement, pursuant to which $_______ aggregate initial
principal amount of __% Class A Asset Backed Certificates, Series 1997-2 (the
"Class A Certificates"), $__________ aggregate initial principal amount of __%
Class B Asset Backed Certificates, Series 1997-2 (the "Class B Certificates,"
and together with the Class A Certificates, the "Certificates"), a Collateral
Indebtedness Interest, Series 1997-2 in the initial aggregate principal amount
of $________ (the "Collateral Interest") and $________ initial aggregate
principal amount of Class D Asset Backed Certificates, Series 1997-2 (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 Supplement.
3
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 Transferor. The Transferor
represents and warrants to each Underwriter as of the date hereof, as follows:
(a) a registration statement on Form S-3 (having the registration
number 333______) including a prospectus and such amendments thereto as
may have been required to the date hereof, relating to the Certificates
has been filed with the Securities and Exchange Commission (the
"Commission") (which included a preliminary prospectus (the "Preliminary
Prospectus") meeting the requirements of Rule 430 of the Securities Act
as 1933, as amended (the "Act"), and such registration statement, as
amended, has become effective; such registration statement, as amended,
and the prospectus relating to the sale of the Certificates offered
thereby by the Transferor constituting a part thereof, as from time to
time amended or supplemented (including any prospectus filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission (the "Rules and Regulations") under the Act), are respectively
referred to herein as the "Registration Statement" and the "Prospectus";
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, 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 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
- 2 -
4
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;
(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 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 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 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 Supplement;
(f) the execution, delivery and performance by the Transferor of
this Agreement, any applicable agreement relating to an Enhancement (an
"Enhancement Agreement"), the Pooling and Servicing Agreement, the
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 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 of
association or by-laws of the Transferor, or (ii) conflict with any of
the provisions of any law, government rule,
- 3 -
5
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 lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(g) when executed and delivered by the parties thereto, the Pooling
and Servicing Agreement, the 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;
(h) 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 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 Supplement, have been or will be taken or
obtained on or prior to the Closing Date;
(i) this Agreement has been duly executed and delivered by the
Transferor;
(j) 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
__________________;
(k) any taxes, fees and other governmental charges in connection
with the execution, delivery and performance by the Transferor of this
Agreement, the Pooling and Servicing Agreement, the 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
(l) the Certificates, the Collateral Interest, the Class D
Certificates, the Pooling and Servicing Agreement, the Supplement and the
Enhancement Agreement conform in all material respects to the description
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
- 4 -
6
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 _____% of the principal
amount of such Certificates with respect to the Class A Certificates and
_________% of the principal amount of such Certificates with respect to the
Class B Certificates, plus, in each case, accrued interest, if any, from and
including August __, 1997 through and including the day prior to the Closing
Date.
Delivery of and payment for the Certificates will be made at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, on August __, 1997 (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 immediately available funds 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 Underwriter. It is understood that 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 setting forth 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 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
- 5 -
7
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
reasonably request; provided, however, that your consent to any amendment
shall not constitute a waiver of any of the conditions of Section 6
hereof;
(c) the Transferor will make generally available to the holders of
the Certificates (the "Certificateholders"), in each case as soon as
practicable, 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 Underwriter copies of the
Registration Statement (at least one copy to be delivered to each
Underwriter 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 dealer may
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;
- 6 -
8
(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 (including reasonable
fees and disbursements of the Underwriters' counsel) and the printing 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 expenses incurred in distributing
the Prospectus (including any amendments and supplements thereto) to the
Underwriters; and
(g) the Transferor will, for so long as Certificates purchased
pursuant hereto remain outstanding, deliver or cause to be delivered to
you copies of the annual servicer's certificate and the annual
accountants' 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 hereunder and to the following additional conditions precedent:
(a) you shall have received a letter from [_____________],
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 Rating Group ("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;
- 7 -
9
(d) you shall have received an opinion of Xxxxxx & Bird LLP,
counsel to the Transferor, dated the Closing Date, substantially to the
effect that:
(i) the Transferor is a corporation association 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, 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, the Receivable Purchase Agreements, the
Pooling and Servicing Agreement and the Supplement and to
consummate the transactions contemplated herein and therein;
(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 Receivable
Purchase Agreements, the Pooling and Servicing Agreement and the
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 where such indemnification
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 Receivable Purchase
Agreements, the Pooling and Servicing Agreement, the Supplement,
or the Enhancement Agreement, except such as have been obtained or
made and such as may be required under state securities or Blue
Sky laws;
- 8 -
10
(vii) the execution, delivery and performance by the
Transferor of its obligations under this Agreement, the Receivable
Purchase Agreements, the Pooling and Servicing Agreement, the
Supplement or 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 Receivable Purchase
Agreements, the Pooling and Servicing Agreement, the 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 association or by-laws of the
Transferor, each as amended, the terms of any indenture or other
agreement or instrument known to such counsel to which the
Transferor is a party or by which it or 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 Transferor;
provided, however, that such counsel need express no opinion as to
state securities or Blue Sky laws;
(viii) 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 this Agreement, the Receivable Purchase Agreements,
the Pooling and Servicing Agreement, the 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 Receivable
Purchase Agreements, the Pooling and Servicing Agreement, the
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 Receivable
Purchase Agreements, the Pooling and Servicing Agreement, the
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";
(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
- 9 -
11
the requirements of the Act and the rules and regulations
promulgated thereunder;
(x) this Agreement, the Receivable Purchase Agreements, the
Pooling and Servicing Agreement, the applicable 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 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 heading
"Federal Income Tax Consequences" 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
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 and public officials;
(e) you shall have received an opinion of Xxxxxx & Bird LLP,
special counsel for the Sellers, dated the Closing Date, in form and
substance satisfactory to you and your counsel, to the effect that, with
respect to each Seller:
- 10 -
12
(i) the Seller is a corporation or association duly
organized, validly existing and in good standing under the laws of
the state of its incorporation, 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 to execute and
deliver the Receivable Purchase Agreement to which it is a party
and to consummate the transactions contemplated therein;
(iii) the execution, delivery and performance of Receivable
Purchase Agreement to which the Seller is a party 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 Receivable Purchase Agreement to which the Seller is
a party constitutes the legal, valid and binding agreement of the
Seller, enforceable against the Seller 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 where such indemnification 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 Receivable Purchase Agreement to
which the Seller is a party, except such as have been obtained or
made;
(vi) the execution, delivery and performance by the Seller of
its obligations under the Receivable Purchase Agreement to which
it is a party, 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 agreement 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
- 11 -
13
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 Receivable Purchase Agreement to which the
Seller is a party, (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 Prospectus under the headings
"Federal Income Tax Consequences".
(f) you shall have received an opinion of Xxxxxx & Bird LLP,
counsel for 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 Pooling and Servicing Agreement, the Supplement and
the indemnification agreement between you and the Servicer, dated
August __, 1997 (the "Indemnification Agreement") and to
consummate the transactions contemplated herein and therein;
(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 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
- 12 -
14
provisions indemnifying a party against liability where such
indemnification 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, 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, delivery and performance by the Servicer
of its obligations under the Pooling and Servicing Agreement, the
Supplement or the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, the
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 articles of association 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;
(g) you shall have received an opinion or opinions of Xxxxxx & Bird
LLP, special counsel for the Sellers and the Transferor, dated the
Closing Date, in form and substance satisfactory to you and your counsel,
with respect to certain matters relating to the sale of the Receivables
by the Sellers and the transfer of the Receivables by the Transferor,
with respect to the perfection of the Transferor's and the Trust's
interest in the Receivables and 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;
(h) 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;
(i) you shall have received, with respect to the Transferor, a
certificate, dated the Closing Date, of a Senior Vice President or more
senior officer of the Transferor in which such officer, to the best of
his or her knowledge after
- 13 -
15
reasonable investigation, shall state that (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 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;
(j) you shall have received, with respect to Xxxxxxxx'x Inc.
("Xxxxxxxx'x"), a certificate, dated the Closing Date, of a Senior Vice
President or more senior officer of Xxxxxxxx'x in which such officer, to
the best of 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;
(k) you shall have received an opinion of Xxxxxxx and Xxxxxx,
counsel to the Trustee, dated the Closing Date, in form and substance
satisfactory to you and your 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 and to
perform all actions required of it under the Pooling and Servicing
Agreement, the Supplement and the Enhancement Agreement;
(ii) each of the Pooling and Servicing Agreement, the
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);
- 14 -
16
(iii) the Certificates have been duly authenticated and
delivered by the Trustee;
(iv) the execution and delivery of the Pooling and Servicing
Agreement, the Supplement and the Enhancement Agreement by the
Trustee and the performance by the Trustee of their respective
terms do 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 certificate of incorporation or 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 sate 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 Pooling and Servicing
Agreement, the Supplement and the Enhancement Agreement or the
performance by the Trustee thereunder;
(l) 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.
(m) you shall have received reliance letters, if applicable, with
respect to any opinions delivered to the 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
- 15 -
17
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 harmless 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 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 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.
- 16 -
18
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.
(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 additional to those
available to the indemnifying
- 17 -
19
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. 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.
(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 Underwriter were treated as one entity for such
purpose).
8. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Certificates default in their obligations to
purchase Certificates hereunder 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
- 18 -
20
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 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 or Mississippi shall have been
declared by any of Federal, New York 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 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.
- 19 -
21
11. Notices. All communications hereunder will be in writing and, if sent
to an Underwriter, will be mailed, delivered or telecopied to NationsBanc
Capital Markets, Inc., 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, delivered or
telecopied to Xxxxxxxx'x Credit Corporation, 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx, facsimile number (000) 000-0000,
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.
12. 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.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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:
-----------------------------
Name:
-------------------------
Title:
------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
- 20 -
22
NATIONSBANC CAPITAL MARKETS, INC.,
as Representative of the several Underwriters
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
- 21 -
