Exhibit 1.1
Underwriting Agreement dated as of July 14, 1999 by and among
Saks Credit Corporation and Banc of America Securities LLC,
as Representative of the Several Underwriters
SAKS CREDIT CORPORATION
Transferor
SAKS CREDIT CARD MASTER TRUST
July 14, 1999
UNDERWRITING AGREEMENT
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Banc of America Securities LLC
As Representative
(the "Representative") of the
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Several Underwriters
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. Saks Credit Corporation is the Transferor (the
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"Transferor") under the Saks Credit Card Master Trust (the "Trust"), which has
issued and will issue, from time to time, asset backed securities and other
interests ("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 Master Pooling and Servicing Agreement, dated as of August 21,
1997 (as amended or supplemented, the "Pooling and Servicing Agreement") is
among the Transferor, Norwest Bank Minnesota, National Association, a national
banking
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association (the "Trustee") and Saks Incorporated, as servicer (the "Servicer").
The Transferor proposes to enter into the Series 1999-1 Supplement, dated as of
July 21, 1999 (the "Series 1999-1 Supplement"), to the Pooling and Servicing
Agreement, pursuant to which $280,000,000 aggregate initial principal amount of
Class A Floating Rate Asset Backed Certificates, Series 1999-1 (the "Class A
Certificates"), $30,275,000 aggregate initial principal amount of Class B
Floating Rate Asset Backed Certificates, Series 1999-1 (the "Class B
Certificates," and together with the Class A Certificates, the "Certificates")
and $68,100,000 aggregate initial principal amount of Collateral Interest,
Series 1999-1 (as may be subdivided into separate interests, cumulatively the
"Collateral Interest"). To the extent not defined herein, capitalized terms
used herein shall have the meanings specified in the Pooling and Servicing
Agreement and the Series 1999-1 Supplement.
The Transferor proposes to sell to the underwriters identified on
Schedule I hereto (the "Underwriters"), for whom Banc of America Securities LLC
is acting as representative (the "Representative"), the principal amount of
Certificates identified on Schedule I.
2. Representations and Warranties of the Transferor. The Transferor
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represents and warrants to each Underwriter 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 Exchange
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. 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
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the "Prospectus" (the "Prospectus"). The Prospectus Supplement shall be
deemed to have supplemented the Prospectus only with respect to the
offering of the Certificates; 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 the Representative has agreed in writing, shall be in all substantive
respects in the form furnished to the Representative 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 the Representative) as the Transferor has advised the Representative,
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
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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 Delaware, with
full power, authority and legal right to own its properties and conduct its
business
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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 1999-1 Supplement;
(e) the Certificates and the Collateral Interest on the date of this
Agreement, will have been duly and validly authorized and, when the
Certificates and the Collateral Interest are on the Closing Date, 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 1999-1 Supplement and, when the Certificates are
delivered and paid for as provided herein and when the Collateral Interest
are delivered and paid for by the purchaser thereof or retained by the
Transferor, as the case may be, the Certificates and the Collateral
Interest will be validly issued and outstanding and entitled to the
benefits and security afforded by the Pooling and Servicing Agreement and
the Series 1999-1 Supplement;
(f) the execution, delivery and performance by the Transferor of this
Agreement, the Pooling and Servicing Agreement, the Series 1999-1
Supplement, the Certificates and the Collateral Interest, and the
consummation by the Transferor of the transactions provided for herein and
therein, have been, or will have been as of the Closing Date, 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 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 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 1999-1 Supplement;
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(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 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);
(h) when executed and delivered by the parties thereto, the Series
1999-1 Supplement will 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 pursuant to this Agreement, the Pooling and Servicing
Agreement and the Series 1999-1 Supplement and the Collateral Interest
pursuant to the Pooling and Servicing Agreement and the Series 1999-1
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 June 2,
1999;
(l) 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 Series 1999-1
Supplement and the Certificates (except for transfer, income or other taxes
due upon the sale of the Certificates by the Underwriters or any Subsequent
Purchaser) shall have been paid or will be paid by
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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 Pooling and
Servicing Agreement and the Series 1999-1 Supplement conform and will
conform as of the Closing Date in all material respects to the descriptions
thereof in the Prospectus.
3. Purchase, Sale and Delivery of Certificates. On the basis of the
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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 99.70% of
the principal amount of such Certificates with respect to the Class A
Certificates and 99.65% 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-
3424, on July 21, 1999 (the "Closing Date"), or at such other time thereafter or
other place as the Representative 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
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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
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agrees with each Underwriter that:
(a) prior to the execution of this Agreement, the Transferor will
prepare a Prospectus Supplement 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
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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 the Representative,
or if the Representative shall have reasonably objected thereto promptly
after receipt thereof; the Transferor will immediately advise the
Representative and its 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 the Representative 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 the Representative as many
copies of the Prospectus as amended or supplemented as the Representative
may reasonably request; provided, however, that a consent by the
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Representative 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 reasonably
practicable and within the time specified by, a statement which will
satisfy the provisions of,
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Section 11(a) of the Act and Rule 158 of the Commission, as applicable to
and customary for asset backed securities generally, with respect to the
Certificates;
(d) the Transferor will make available to each Underwriter, at its
request, copies of the Registration Statement (and at least one copy, if
not previously delivered to the Representative, shall be delivered to the
Representative and 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 the Representative reasonably requests;
(e) the Transferor will assist the Representative 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 the
Representative designates and will continue to assist the Representative 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
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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 the Representative may designate and the
reproduction of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of such Certificates, for all
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Representative and, to the extent
previously agreed upon with the Representative, 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 cause to be delivered to the
Representative
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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
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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) the Representative shall have received a letter from
PricewaterhouseCoopers LLP, independent public accountants, and, if
requested by the Representative, 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 Representative shall have received a copy of the
indemnification agreement, dated the date hereof, between the
Representative and the Servicer (the "Indemnification Agreement"), executed
by the Servicer and delivered to the Representative;
(d) 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. ("Moody's"), Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") and Duff & Xxxxxx Credit
Rating Co. ("Duff & Xxxxxx") and in the case of the Class B Certificates,
in one of the three highest rating categories by Moody's, Standard and
Poor's and Duff & Xxxxxx, and in each case shall not have been placed on
any credit watch with a negative implication for downgrade;
(e) the Representative shall have received opinions of Xxxxxx & Bird
LLP, counsel to the Transferor, and of such local or corporate counsel to
the Transferor and its affiliates, dated the Closing Date, substantially to
the effect that:
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(i) the Transferor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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 transfer 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 and the
Series 1999-1 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 Receivables Purchase Agreement, the Pooling
and Servicing Agreement and the Series 1999-1 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 or the
Series 1999-1 Supplement, except such as have been obtained or made
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and such as may be required under foreign or state securities or Blue Sky
laws;
(vii) the execution and delivery of the Series 1999-1 Supplement, the
performance by the Transferor of its obligations under this Agreement, the
Receivables Purchase Agreement, the Pooling and Servicing Agreement and the
Series 1999-1 Supplement, 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 or the Series 1999-1
Supplement, will not conflict with, result in a breach of or violation of
any of the terms of, or constitute a default under, the Certificate of
Incorporation 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
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express 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 1999-1 Supplement 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 1999-1
Supplement 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 1999-1 Supplement or the Certificates, or (C) seeking adversely
to affect the federal income tax attributes of the Certificates as
described in the Prospectus Supplement under the heading "Certain Federal
Income Tax Consequences of the Offered Certificates" beginning at page S-56
thereof;
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(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 1999-1 Supplement 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 1999-1
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 Supplement under the headings
"Series 1999-1 Summary-Tax Status" and "Certain Federal Income Tax
Consequences of the Offered Certificates" on page S-13 and beginning at
page S-56 respectively, 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
"Summary-ERISA Considerations," "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
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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;
(f) the Representative 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 the Representative and its 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 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 or the rights of creditors of national
banking associations, (B) the application of general principles of
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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
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 regulation, of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Seller; and
(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 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 Prospectus Supplement under the
headings "Certain Federal Income Tax Consequences of the Offered
Certificates" beginning at page S-56 thereof;
-18-
(g) the Representative 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 1999-1 Supplement and 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, the Series 1999-1
Supplement and the Indemnification Agreement 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, 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 or any foreign
securities laws; and
-19-
(vi) the execution and delivery of the Series 1999-1 Supplement
and the Indemnification Agreement, the performance by the Servicer of
its obligations under the Pooling and Servicing Agreement and the
Series 1999-1 Supplement, and the consummation of any of the
transactions contemplated by the Pooling and Servicing Agreement, the
Series 1999-1 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 Charter 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 any foreign securities laws;
(h) the Representative 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 reasonably acceptable to the
Representative and its 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 special tax
counsel to the Transferor, which may be Xxxxxx & Bird LLP, and/or such
local counsel to the Transferor, dated the Closing Date, and in form and
substance satisfactory to the Representative and its counsel, to the effect
that the Certificates are properly characterized as indebtedness for
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 State of Illinois and that
the Trust will not be subject to any income, franchise, excise or other tax
under the laws of the State of Illinois;
(j) the Representative 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 the Closing Date, in form and
substance satisfactory to the Representative and its 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
-20-
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 the
Representative and its counsel; in addition, the Representative shall have
received a reliance letter with respect to any opinion that the Transferor
is required to deliver to the Rating Agency;
(k) the Representative 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 the
Representative, with respect to certain New York law matters and to the
validity of the Certificates, the Registration Statement, the Prospectus
and other related matters as the Representative 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;
(l) the Representative 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;
(m) the Representative shall have received, with respect to Saks
Incorporated ("Saks"), a certificate, dated the Closing Date, of the
Treasurer or any Senior Vice President or more senior officer of Saks in
which such officer, to his or her knowledge after reasonable investigation,
shall state that (A) attached thereto is a true and complete copy of the
Charter of Incorporation and By-laws of Saks, and all
-21-
amendments thereto, (B) attached thereto is a true and complete copy of the
resolutions of its Board of Directors or executive committee thereof
authorizing the execution and delivery of the Indemnification Agreement and
the transactions contemplated hereby and thereby, and that such resolutions
have not been amended, modified, revoked or rescinded and are in full force
and effect on the Closing Date, (C) the incumbency and specimen signature
of each officer of Saks who executed, or is executing, the Indemnification
Agreement or any other document delivered in connection therewith is
attached thereto, (D) no material consents, licenses or approvals are
required in connection with the execution, delivery and performance by Saks
of the Indemnification Agreement, and that the Indemnification Agreement is
valid and enforceable, and (E) subsequent to the date of the Prospectus,
there has been no material adverse change in the consolidated condition
(financial or otherwise) of Saks and its subsidiaries, except as set forth
in or contemplated in the Registration Statement and the Prospectus or as
described in such certificate;
(n) the Representative shall have received an opinion of counsel to
the Trustee, which may be an opinion of the Trustee's in-house counsel,
addressed to the Representative dated the Closing Date, in form and
substance satisfactory to the Representative and its 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 1999-1
Supplement and to perform all actions required of it under the Pooling
and Servicing Agreement and the Series 1999-1 Supplement;
(ii) each of the Pooling and Servicing Agreement and the Series
1999-1 Supplement 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);
-22-
(iii) the Certificates have been duly authenticated and delivered
by the Trustee;
(iv) the execution and delivery of the Series 1999-1 Supplement by
the Trustee and the performance by the Trustee of the respective terms
of the Pooling and Servicing Agreement and the Series 1999-1
Supplement 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 1999-1 Supplement or the
performance by the Trustee thereunder or under the Pooling and
Servicing Agreement.
The Transferor will furnish to the Representative conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
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
-23-
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 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
-24-
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 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.
-25-
(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).
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the underwriting discount
received by it.
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, the Representative may make arrangements 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 Under-writer or Underwriters
so default and the aggregate principal amount of Certificates with
-26-
respect to which such default or defaults occur is more than 10% of the total
principal amount of the Certificates and arrangements satisfactory to the
Representative 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 Saks or any suspension of trading
of the securities of Saks on any exchange or in the over-the-counter market,
(ii) a general moratorium on commercial banking activities shall have been
declared by any applicable Federal or State 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 the reasonable judgment of the Representative, as
representative of the Underwriters, impracticable to market the Certificates on
the terms and in the manner contemplated in the Prospectus, (iv) the rating of
another Series or Class, or a class of securities shall have been reduced or
withdrawn, which reduction or withdrawal, in the judgment of the Representative,
makes it impracticable to market the Certificates on the terms and in the manner
contemplated in the Prospectus, (v) any public announcement that any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act) has under surveillance or review its rating of
the debt securities of either the Transferor or the Servicer (other than an
announcement with positive implications of a possible upgrading and no
implication of a possible downgrading or such rating), or (vi) 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 Saks occurs, which, in the reasonable judgment of the
Representative, 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. If this Agreement is terminated
pursuant to this Section, such termination shall be without liability of any
party to any other party.
10. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements by the Transferor
-27-
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 Banc of
America Securities LLC, Bank of America Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxxxx,
facsimile number 000-000-0000, or to such other address as the Representative
may designate in writing to the Transferor, or if sent to the Transferor, will
be mailed, delivered or telecopied to Saks Credit Corporation, 000 Xxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx, facsimile number
(000) 000-0000, or to 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 such Underwriter.
-28-
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. Severability of Provisions. Any covenant, provision, agreement
--------------------------
or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
14. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which shall together
constitute one instrument.
15. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY, AND
--------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-29-
If the foregoing is in accordance with your understanding of this
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,
SAKS CREDIT CORPORATION,
as Transferor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BANC OF AMERICA SECURITIES LLC
as Representative of the
Several Underwriters
By /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
-30-
Schedule I
----------
Principal Amount of
Class A Certificates
--------------------
Banc of America Securities LLC... $ 70,000,000
Banc One Capital Markets, Inc.... 70,000,000
Chase Securities Inc............. 70,000,000
X.X. Xxxxxx Securities Inc....... 70,000,000
------------
Total............................ $280,000,000
Principal Amount of
Class B Certificates
--------------------
Banc of America Securities LLC... $ 30,275,000
------------
Total............................ $ 30,275,000
