Exhibit 1
DILLARD CREDIT CARD MASTER TRUST I
DILLARD ASSET FUNDING COMPANY
(Transferor)
DILLARD NATIONAL BANK
(Servicer)
DILLARD NATIONAL BANK
(formerly Mercantile Stores National Bank)
XXXXXXX'X, INC.
UNDERWRITING AGREEMENT
(Standard Terms)
_________, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
As Underwriter and as
Representative of the
several Underwriters
named in the
Terms Agreement
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Dillard Asset Funding Company ("DAFC"), a Delaware business trust,
was formed pursuant to that certain Trust Agreement, dated as of August 14,
1998, by and among Condev Nevada, Inc., a Nevada corporation, as depositor,
JPMorgan Chase Bank, as owner trustee, and certain administrators thereof.
DAFC proposes to cause the Dillard Credit Card Master Trust I (the "Trust") to
issue the Asset Backed Certificates designated in the applicable Terms
Agreement (as hereinafter defined) (the "Certificates"). The Certificates will
be issued pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") described in the applicable Terms Agreement among DAFC,
as Transferor (the "Transferor"), Dillard National Bank ("DNB"), as Servicer
(the "Servicer"), and the trustee identified in the applicable Terms Agreement
(the "Trustee"), as supplemented by the Series Supplement having the date
stated in the applicable Terms Agreement, among the Transferor, the Servicer
and the Trustee (the "Supplement"). The Series of Certificates designated in
the applicable Terms Agreement will be sold in a public offering through the
underwriters listed on Schedule I to the applicable Terms Agreement (the
"Underwriters"). Certificates of any Series sold to the Underwriters shall be
sold pursuant to a Terms Agreement by and among DAFC, DNB, Dillard National
Bank (formerly Mercantile Stores National Bank) ("DNB-La."), Xxxxxxx'x Inc.
(the "Corporation") and the Underwriters, a form of which is attached hereto
as Exhibit A (a "Terms Agreement"), which incorporates by reference this
Underwriting Agreement (this "Agreement,"
which may include the applicable Terms Agreement if the context so requires).
Any Series of Certificates sold pursuant to any Terms Agreement may include
the benefits of a letter of credit, cash collateral guaranty or account,
collateral interest, surety bond, insurance policy, spread account, reserve
account or other similar arrangement for the benefit of the Certificateholders
of such Series ("Credit Enhancement"). With respect to any such Credit
Enhancement, the Corporation, DNB, DNB-La. or DAFC may enter into an agreement
(the "Credit Enhancement Agreement") by and between such party(ies) and the
provider of the Credit Enhancement (the "Credit Enhancement Provider"). Each
Certificate will represent a specified percentage undivided interest in the
Trust. The assets of the Trust include, among other things, certain amounts
due on a portfolio of private label revolving credit card accounts transferred
to DAFC (the "Receivables"), and the benefit of the Credit Enhancement, if
any. To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Pooling and Servicing Agreement. Unless
otherwise stated herein or in the applicable Terms Agreement, as the context
otherwise requires or if such term is otherwise defined in the Pooling and
Servicing Agreement, each capitalized term used or defined herein or in the
applicable Terms Agreement shall relate only to the Series of Certificates
designated in the applicable Terms Agreement and no other Series of Asset
Backed Certificates issued by the Trust.
Section 1. Representations and Warranties of the Corporation, DNB,
DNB-La. and DAFC. (A) Upon the execution of the applicable Terms Agreement,
each of the Corporation, DNB, DNB-La. and DAFC represents and warrants to the
Underwriters that as of the date of such Terms Agreement:
(a) DAFC has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 (having the registration number stated in the applicable Terms
Agreement), including a form of prospectus, relating to the Certificates. Such
registration statement, as amended at the time it was declared effective by
the Commission, including all material incorporated by reference therein,
including all information contained in any Additional Registration Statement
(as defined herein) and deemed to be part of such registration statement as of
the time such Additional Registration Statement (if any) was declared
effective by the Commission pursuant to the General Instructions of the Form
on which it was filed and including all information (if any) deemed to be a
part of such registration statement as of the time it was declared effective
by the Commission pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act
(such registration statement, the "Initial Registration Statement") has been
declared effective by the Commission. If any post-effective amendment has been
filed with respect to the Initial Registration Statement, prior to the
execution and delivery of the applicable Terms Agreement, the most recent such
amendment has been declared effective by the Commission. If (i) an additional
registration statement, as amended, including the contents of the Initial
Registration Statement incorporated by reference therein and including all
information (if any) deemed to be a part of such additional registration
statement pursuant to Rule 430A(b) and, together with any post-effective
amendment thereto (the "Additional Registration Statement") relating to the
Certificates has been filed with the Commission pursuant to Rule 462(b) ("Rule
462(b)") under the Act and, if so filed, has become effective upon filing
pursuant to Rule 462(b), then the Certificates have been duly registered under
the Act pursuant to the Initial Registration Statement and such Additional
Registration Statement or (ii) an Additional
-2-
Registration Statement is proposed to be filed with the Commission pursuant to
Rule 462(b) and will become effective upon filing pursuant to Rule 462(b),
then upon such filing the Certificates will have been duly registered under
the Act pursuant to the Initial Registration Statement and such Additional
Registration Statement. If DAFC does not propose to amend the Initial
Registration Statement or, if an Additional Registration Statement has been
filed and DAFC does not propose to amend it and if any post-effective
amendment to either such registration statement has been filed with the
Commission prior to the execution and delivery of the applicable Terms
Agreement, the most recent amendment (if any) to each such registration
statement that has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) under the Act or, in the case of
any Additional Registration Statement, Rule 462(b) will be effective. The
Initial Registration Statement and any Additional Registration Statement are
hereinafter referred to collectively as the "Registration Statements" and
individually as a "Registration Statement." Copies of the Registration
Statements, together with any post-effective amendments have been furnished to
the Underwriters. DAFC proposes to file with the Commission pursuant to Rule
424 ("Rule 424") under the Act a supplement (the "Prospectus Supplement") to
the form of prospectus included in a Registration Statement (such prospectus,
in the form it appears in a Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule 424 is
hereinafter referred to as the "Basic Prospectus") relating to the
Certificates and the plan of distribution thereof. The Basic Prospectus and
the Prospectus Supplement, together with any amendment thereof or supplement
thereto, is hereinafter referred to as the "Final Prospectus." Except to the
extent that the Underwriters shall agree in writing to a modification, the
Final Prospectus shall be in all substantial respects in the form furnished to
the Underwriters prior to the execution of the relevant Terms Agreement, or to
the extent not completed at such time, shall contain only such material
changes as DAFC has advised the Underwriters, prior to such time, will be
included therein. Any preliminary form of the Prospectus Supplement which has
heretofore been filed pursuant to Rule 424 is hereinafter called a
"Preliminary Final Prospectus";
(b) The Initial Registration Statement, including such amendments
thereto as may have been required on the date of the applicable Terms
Agreement, and the Additional Registration Statement (if any), relating to the
Certificates, have been filed with the Commission and such Initial
Registration Statement as amended, and the Additional Registration Statement
(if any), have become effective. No stop order suspending the effectiveness of
the Initial Registration Statement or the Additional Registration Statement
(if any) has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of any of the Corporation, DNB, DNB-La. or
DAFC, threatened by the Commission;
(c) The Initial Registration Statement conforms, and any amendments
or supplements thereto and the Final Prospectus will conform, in all material
respects to the requirements of the Act, and do not and will not, as of the
applicable effective date as to the Initial Registration Statement and any
amendment thereto, as of the applicable filing date as to the Final
Prospectus, and as of the Closing Date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Additional
Registration Statement (if any) and the Initial Registration Statement
conform, in all material respects to the requirements of the Act, and do not
and will not, as of the applicable effective date as to the Additional
Registration Statement, contain an untrue statement of a material fact or omit
to state a material fact required to be stated
-3-
therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall apply only during the
period that a prospectus relating to the Certificates is required to be
delivered under the Act by dealers in connection with the initial public
offering of such Certificates (such period being hereinafter sometimes
referred to as the "prospectus delivery period"); provided, further, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to DAFC by or on behalf of the Underwriters specifically for use in connection
with the preparation of a Registration Statement and the Final Prospectus;
(d) As of the Closing Date, the representations and warranties of
DAFC, as Transferor, and DNB, as Servicer, in the Pooling and Servicing
Agreement and the Supplement will be true and correct, except to the extent
such representations and warranties related to a prior date;
(e) As of the Closing Date, (i) the representations and warranties
of DNB and DAFC, in the Receivables Purchase Agreement (the "DNB Purchase
Agreement"), dated as of August 14, 1998, pursuant to which certain
Receivables were transferred to DAFC by DNB, will be true and correct and (ii)
the representations and warranties of DNB-La. and DAFC, in the Receivables
Purchase Agreement (the "DNB-La. Purchase Agreement" and, collectively with
the DNB Purchase Agreement, the "Purchase Agreements"), dated as of August 14,
1998, pursuant to which certain Receivables were transferred to DAFC by
DNB-La., will be true and correct, except to the extent such representations
and warranties related to a prior date;
(f) DAFC has been duly organized and is validly existing as a
business trust in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and
had at all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Receivables;
(g) The Certificates have been duly authorized, and, when issued and
delivered pursuant to the Pooling and Servicing Agreement and the Supplement,
duly authenticated by the Trustee and paid for by the Underwriters in
accordance with the terms of this Agreement and the applicable Terms
Agreement, will be duly and validly executed, issued and delivered and
entitled to the benefits provided by the Pooling and Servicing Agreement and
the Supplement; each of the Pooling and Servicing Agreement and the Supplement
have been duly authorized and, when executed and delivered by DAFC, as
Transferor, each of the Pooling and Servicing Agreement and the Supplement
will (assuming due execution and delivery by the Trustee) constitute a valid
and binding agreement of DAFC; the Purchase Agreements, the Certificates, the
Pooling and Servicing Agreement and the Supplement conform to the descriptions
thereof in the Final Prospectus in all material respects; and, if applicable,
when executed by DAFC, as Transferor, the Credit Enhancement Agreement will
(assuming due execution and delivery by the Trustee and Credit Enhancement
Provider) constitute a valid and binding agreement of DAFC;
(h) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or made by
the Corporation, DNB, DNB-La. or DAFC for the consummation of the transactions
contemplated by this Agreement,
-4-
the applicable Terms Agreement, the Purchase Agreements, the Pooling and
Servicing Agreement or the Supplement except such as have been obtained and
made under the Act, such as may be required under state securities laws and
the filing of any financing statements required to perfect the Trust's
interest in the Receivables;
(i) None of the Corporation, DNB, DNB-La. or DAFC is in violation of
its organizational documents or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties is bound
which would have a material adverse effect on the transactions contemplated
herein, in the Pooling and Servicing Agreement, the Supplement or the Purchase
Agreements. The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement, the Purchase Agreements and the Credit Enhancement Agreement, and
the issuance and sale of the Certificates and compliance with the terms and
provisions thereof will not result in a breach or violation of any of the
terms of, or constitute a default under, any statute, rule, regulation or
order of any governmental agency or body or any court having jurisdiction over
such party or any of its properties or any material agreement or instrument to
which the Corporation, DNB, DNB-La. or DAFC is a party or by which such party
is bound or to which any of the properties of such party is subject, or the
organizational documents of such party except for any such breaches or
violations or defaults as would not individually or in the aggregate have a
material adverse effect on the transactions contemplated herein, in the
Pooling and Servicing Agreement, the Supplement or the Purchase Agreements;
(j) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Corporation, DNB, DNB-La. and DAFC, threatened to which any of the
Corporation, DNB, DNB-La. or DAFC or their subsidiaries is or may be a party
or to which any property of the Corporation, DNB, DNB-La. or DAFC or their
subsidiaries are or may be the subject which, if determined adversely to the
Corporation, DNB, DNB-La. or DAFC, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the Corporation,
DNB, DNB-La. or DAFC's credit card business or on the interests of the holders
of the Certificates; and there are no contracts or other documents of a
character required to be filed as an exhibit to the Initial Registration
Statement or the Additional Registration Statement (if any) or to be described
in the Initial Registration Statement, the Additional Registration Statement
(if any) or the Basic Prospectus which are not filed or described as required;
(k) Each of this Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Corporation, DNB, DNB-La.
and DAFC;
(l) Each of the Pooling and Servicing Agreement, the Supplement, the
Certificates and the Receivables conforms in all material respects with the
descriptions thereof contained in the Registration Statement and the Final
Prospectus;
(m) Deloitte & Touche LLP, who have audited certain financial
statements of the Corporation, DNB and DNB-La., are independent public
accountants as required by the Act;
-5-
(n) Neither the Trust nor the Transferor is an "investment company"
or under the "control" of an "investment company" within the meaning thereof
as defined in the Investment Company Act of 1940, as amended;
(o) Any taxes, fees and other governmental charges imposed upon the
Transferor or on the assets of the Trust in connection with the execution,
delivery and issuance by the Transferor of this Agreement, the Pooling and
Servicing Agreement, the Supplement or the Certificates and which are due at
or prior to each Closing Date have been or will have been paid by or on behalf
of the Transferor at or prior to such Closing Date;
(p) Neither the Pooling and Servicing Agreement nor the Supplement
needs to be qualified under the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder;
(q) Each of the Corporation, DNB, DNB-La. and DAFC possesses all
material licenses, certificates, authorizations and permits issued by, and has
made all declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies which are necessary or desirable for the
ownership of its respective properties or the conduct of its respective
businesses as described in the Final Prospectus, except where the failure to
possess or make the same would not have, singularly or in the aggregate, a
material adverse effect on the Receivables, the Certificates or its condition
(financial or otherwise), results of operations, business or prospects;
(r) Except as disclosed in the Registration Statement and the
Prospectus, none of the Corporation, DNB, DNB-La. or DAFC (i) has any material
lending or other relationship with any bank or lending affiliate of any
Underwriter, or (ii) intends to use any of the proceeds from the sale of the
Certificates to repay any outstanding debt owed to any affiliate of any
Underwriter;
(s) DNB has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business
is presently conducted, and is duly qualified to do business and is in good
standing in each state of the United States where the nature of its business
requires it to be so qualified;
(t) DNB-La. has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business
is presently conducted, and is duly qualified to do business and is in good
standing in each state of the United States where the nature of its business
requires it to be so qualified; and
(u) The Corporation has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its business as
such properties are presently owned and such
-6-
business is presently conducted, and is duly qualified to do business and is
in good standing in each state of the United States where the nature of its
business requires it to be so qualified.
Section 2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein set
forth, DAFC agrees to sell to the Underwriters, and the Underwriters agree to
purchase from DAFC, the principal amount of Certificates set forth opposite
each Underwriter's name in Schedule I to the applicable Terms Agreement. The
purchase price for the Certificates shall be as set forth in the applicable
Terms Agreement.
DAFC acknowledges and agrees that Xxxxxx Xxxxxxx & Co. Incorporated
may sell Certificates to any of its affiliates, and that any such affiliates
may sell such Certificates to Xxxxxx Xxxxxxx & Co. Incorporated.
Section 3. Delivery and Payment. Unless otherwise provided in the
applicable Terms Agreement, payment for Certificates shall be made to DAFC or
to its order by wire transfer of same day funds at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx in New York, New York at 10:00 A.M., New York City time, on
the Closing Date (as hereinafter defined) specified in the Terms Agreement, or
at such other time on the same or such other date as the Underwriters and DAFC
may agree upon. The time and date of such payment for the Certificates as
specified in the applicable Terms Agreement are referred to herein as the
"Closing Date." As used herein, the term "Business Day" means any day other
than a day on which banks are permitted or required to be closed in New York
City.
Unless otherwise provided in the applicable Terms Agreement, payment
for the Certificates shall be made against delivery to the Underwriters of the
Certificates registered in the name of Cede & Co. as nominee of The Depository
Trust Company and in such denominations as the Underwriters shall request in
writing not later than two full Business Days prior to the Closing Date. DAFC
shall make the Certificates available for inspection by the Underwriters in
New York, New York not later than one full Business Day prior to the Closing
Date.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public, which
may include selected dealers, as set forth in the Final Prospectus.
Section 5. Covenants of the Dillard's Entities. Each of the
Corporation, DNB, DNB-La. and DAFC covenants and agrees with the Underwriters
that upon the execution of each Terms Agreement:
(a) Promptly following the execution of such Terms Agreement, DAFC
will prepare a Prospectus Supplement setting forth the amount of Certificates
covered thereby and the terms thereof not otherwise specified in the Basic
Prospectus, the price at which such Certificates are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances, and such other information as DAFC deems appropriate. DAFC will
file such Prospectus Supplement with the Commission pursuant to Rule 424
within the time prescribed therein and will provide evidence satisfactory to
the Underwriters of such timely filing. In
-7-
addition, to the extent that the Underwriters (i) have provided to DAFC
Collateral Term Sheets or Series Term Sheets (each, as defined below) that the
Underwriters have provided to prospective investors, DAFC will file such
Collateral Term Sheets or Series Term Sheets, as applicable, as an exhibit to
a report on Form 8-K within two business days of its receipt thereof, but, in
any event, not later than the time required under the terms of the Public
Securities Association Letter as described below, or (ii) have provided to
DAFC Structural Term Sheets or Computational Materials (each as defined below)
that such Underwriters have provided to a prospective investor, DAFC will file
or cause to be filed with the Commission a report on Form 8-K containing such
Structural Term Sheet and Computational Materials, as soon as reasonably
practicable after the date of such Terms Agreement, but in any event, not
later than the date on which the Final Prospectus is filed with the Commission
pursuant to Rule 424.
(b) During the prospectus delivery period, before filing any
amendment or supplement to the Initial Registration Statement, the Additional
Registration Statement (if any) or the Final Prospectus, DAFC will furnish to
the Underwriters copies of the proposed amendment or supplement for review and
will not file any such proposed amendment or supplement to which any
Underwriter reasonably objects.
(c) During the prospectus delivery period, the Corporation, DNB,
DNB-La. and DAFC will advise the Underwriters promptly after it receives
notice thereof, (i) when any amendment to any Registration Statement shall
have become effective, (ii) of any request by the Commission for any amendment
or supplement to any Registration Statement or the Final Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceeding for that purpose, (iv) of the
issuance by the Commission of any order preventing or suspending the use of
any Final Prospectus relating to the Certificates or the initiation or
threatening of any proceedings for that purpose and (v) of any notification
with respect to any suspension of the qualification of the Certificates for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and will use its best efforts to prevent the
issuance of any such stop order or notification and, if any is issued, will
promptly use its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Final 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 the light
of the circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Final Prospectus to comply with
the Act, DAFC promptly will prepare and file or cause to be prepared and filed
with the Commission, an amendment or a supplement which will correct such
statement or omission or effect such compliance.
(e) DAFC will endeavor to qualify the Certificates for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and will continue such qualification in
effect so long as reasonably required for distribution of the Certificates;
provided, however, that DAFC shall not be obligated to qualify to do business
in any jurisdiction in which it is not currently so qualified; and provided,
further, that DAFC shall not be required to file a general consent to service
of process in any jurisdiction.
-8-
(f) DAFC will promptly furnish to each Underwriter, without charge,
copies of each Registration Statement (including exhibits thereto), one of
which will be signed, and to each Underwriter conformed copies of each
Registration Statement (without exhibits thereto) and, during the prospectus
delivery period, copies of any Preliminary Final Prospectus and the Final
Prospectus, in each case, in such quantities as each Underwriter may
reasonably request.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, or until such time as the Underwriters shall
cease to maintain a secondary market in the Certificates, whichever first
occurs, DAFC will deliver to each Underwriter (i) the annual statements of
compliance, (ii) the annual independent certified public accountants' reports
furnished to the Trustee, (iii) all documents required to be distributed to
Certificateholders of the Trust and (iv) all documents filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or any order of the Commission thereunder, in each case as
provided to the Trustee or filed with the Commission, as soon as such
statements and reports are furnished to the Trustee or filed or, if an
affiliate of DAFC is not the Servicer, as soon thereafter as practicable.
(h) DAFC will pay all expenses incident to the performance of its
obligations under this Agreement, including without limitation: (i) expenses
of preparing, printing and reproducing each Registration Statement, the
Preliminary Final Prospectus, the Final Prospectus, this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement, any Credit Enhancement Agreement and the Certificates, (ii) the
cost of delivering the Certificates and the Final Prospectus to the
Underwriters, (iii) any fees charged by investment rating agencies for the
rating of such Certificates, (iv) the reasonable expenses and costs incurred
in connection with "blue sky" qualification of the Certificates for sale in
those states designated by the Underwriters and the printing of memoranda
relating thereto (including fees and disbursements of counsel for the
Underwriters); and (v) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc. and with
respect to any stock exchange listing.
(i) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Corporation, DNB, DNB-La. or DAFC, such party shall
furnish such documents and take any such other actions.
(j) DAFC will cause the Trust to make generally available to
Certificateholders and to the Underwriters as soon as practicable an earnings
statement covering a period of at least twelve months beginning with the first
fiscal quarter of the Trust occurring after the effective date of the Initial
Registration Statement (or, if later, the effective date of the Additional
Registration Statement), which shall satisfy the provisions of Section 11(a)
of the Act and Rule 158 of the Commission promulgated thereunder.
(k) For a period of 30 days from the date of each Final Prospectus,
DAFC will not offer, sell, contract to sell or otherwise dispose of any credit
card asset-backed securities transferred to DAFC which are substantially
similar to the Certificates offered thereby without the prior written consent
of each Underwriter or unless such securities are referenced in the Terms
Agreement.
-9-
Section 6. Representations and Warranties of the Underwriters. Each
Underwriter represents, warrants, covenants and agrees with the Corporation,
DNB, DNB-La. and DAFC that:
(a) It either (A) will not provide any potential investor with a
Collateral Term Sheet (which is required to be filed with the Commission
within two business days of first use under the terms of the Public Securities
Association Letter as described below), or (B) will, substantially
contemporaneously with its first delivery of such Collateral Term Sheet to a
potential investor, deliver such Collateral Term Sheet to DAFC.
(b) It either (A) will not provide any potential investor with a
Structural Term Sheet or Computational Materials, or (B) will timely provide
any such Structural Term Sheet or Computational Materials to DAFC.
(c) It either (A) will not provide any potential investor with a
Series Term Sheet or (B) will timely provide any Series Term Sheet to DAFC.
(d) Each Collateral Term Sheet will bear a legend indicating that
the information contained therein will be superseded by the description of the
collateral contained in the Prospectus Supplement and, except in the case of
the initial Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets.
(e) Each Structural Term Sheet and Series Term Sheet and all
Computational Materials will bear a legend substantially as follows (or in
such other form as may be agreed upon between the Representative and DAFC
prior to the date of this Agreement):
This information is furnished on a confidential basis
and may not be reproduced in whole or in part and is
being delivered to a specific number of prospective
sophisticated investors in order to assist them in
determining whether they have an interest in the type
of security described herein. It has been prepared
solely for information purposes and is not an offer
to buy or sell or a solicitation of an offer to buy
or sell any security or instrument or to participate
in any trading strategy. Xxxxxx Xxxxxxx & Co.
Incorporated makes no representation or warranty with
respect to the accuracy or completeness of the
information, or with respect to the terms of any
future offer of securities conforming to the terms
hereof. Any such offer of securities would be made
pursuant to a definitive Prospectus prepared by the
issuer which could contain material information not
contained herein and to which the prospective
purchasers are referred. In the event of any such
offering, this information shall be deemed
superseded, amended and supplemented in its entirety
by such Prospectus. Such Prospectus will contain all
material information in respect of any securities
offered thereby and any decision to invest in such
securities should be made solely in reliance upon
such Prospectus. Xxxxxx Xxxxxxx disclaims any and all
liability relating to this
-10-
information, including without limitation any express
or implied representations or warranties for, statements
contained in, and omissions from, this information.
Xxxxxx Xxxxxxx and others associated with it may have
positions in, and may effect transaction in,
securities and instruments of issuers mentioned
herein and may also perform or seek to perform
investment banking services for the issuers of such
securities and instruments. Past performance is not
necessarily indicative of future results. Price and
availability are subject to change without notice.
Information contained in this material is current as
of the date appearing on this material only.
Information in this material regarding any assets
backing any securities discussed herein supercedes
all prior information regarding such assets. Xxxxxx
Xxxxxxx & Co. Incorporated is acting as the lead
underwriter and not acting as agent for the issuer or
its affiliates in connection with the proposed
transaction. To our readers worldwide: In addition,
please note that this publication has been issued by
Xxxxxx Xxxxxxx, approved by Xxxxxx Xxxxxxx
International Limited, a member of The Securities and
Futures Authority, and by Xxxxxx Xxxxxxx Japan Ltd.
We recommend that such investors obtain the advice of
their Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx
Xxxxxxx International or Xxxxxx Xxxxxxx Japan Ltd.
representative about the investments concerned. NOT
FOR DISTRIBUTION TO PRIVATE CUSTOMERS AS DEFINED BY
THE U.K. FINANCIAL SERVICES AUTHORITY.
(f) It agrees to provide to DAFC any accountants' letters obtained
relating to the Collateral Term Sheets, Structural Term Sheets and
Computational Materials, which accountants' letters shall be addressed to
DAFC.
(g) It has not, and will not, without the prior written consent of
DAFC, provide any Collateral Term Sheets, Structural Term Sheets, Series Term
Sheets or Computational Materials to any investor after the date of the
related Terms Agreement.
(h) It has not offered or sold and will not offer or sell any
Certificates to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulation 1995 or the Financial Services and Markets Xxx
0000 (the "FSMA"); (ii) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of section 21
of the FSMA) received by it in connection with the issue or sale of any
Certificates in circumstances in which section 21(1) of the FSMA does not
apply to the issuer; (iii) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to participate in a collective investment scheme
(within the meaning of section 238 of the FSMA) in circumstances in which
section 238(1) of
-11-
the FSMA does not apply; (iv) it is a person of a kind described in Article 19
of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order
2001; and (v) it has complied with and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom.
For purposes of this Agreement, "Collateral Term Sheets" and
"Structural Term Sheets" shall have the respective meanings assigned to them
in the February 13, 1995 letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on
behalf of the Public Securities Association (which letter, and the SEC staff's
response thereto, were publicly available February 17, 1995). The term
"Collateral Term Sheet" as used herein includes any subsequent Collateral Term
Sheet that reflects a substantive change in the information presented.
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter of Xxxxx & Wood on behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which letter,
and the SEC staff's response thereto, were publicly available May 20, 1994).
"Series Term Sheet" has the meaning assigned to it in the April 4, 1996 letter
of Xxxxxx & Xxxxxxx on behalf of Greenwood Trust Company (which letter, and
the SEC staff's response thereto, were publicly available April 5, 1996).
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Corporation, DNB, DNB-La. and DAFC contained herein at and
as of the Closing Date, to the accuracy of the statements of such parties made
in any certificates pursuant to the terms hereof, to the performance by such
parties of their respective obligations hereunder and under the applicable
Terms Agreement and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 in the manner and within the applicable time period
prescribed for such filing by the rules and regulations of the Commission
under the Act and in accordance with Section 5(a) of this Agreement; and, as
of the Closing Date, no stop order suspending the effectiveness of any
Registration Statement shall have been issued, and no proceedings for such
purpose shall have been instituted or threatened by the Commission; and all
requests for additional information from the Commission with respect to any
Registration Statement shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting particularly the business, properties or condition (financial or
otherwise) of the Corporation, DNB, DNB-La. or DAFC which, in the judgment of
the Representative, materially impairs the investment quality of the
Certificates or makes it impractical or inadvisable to market the
Certificates; (ii) any suspension or material limitation of trading of
securities generally on the New York Stock Exchange or the American Stock
Exchange; (iii) a declaration of a general moratorium on commercial banking
activities in New York by either Federal or New York State authorities; (iv) a
material disruption in securities settlement or clearance services in the
United States, or (v) any outbreak, declaration or escalation of hostilities
involving the United States, or a declaration by the United States of a
national emergency or a declaration of war, or any other substantial national
or international calamity or emergency or any change in the financial markets
the effect of which is such as to make it, in the judgment of the
Representative,
-12-
impracticable or inadvisable to market the Certificates on the terms specified
herein and the applicable Terms Agreement.
(c) The Underwriters shall have received a certificate of a Vice
President with responsibility for financial matters or other proper officer of
each of the Corporation, DNB, DNB-La. and DAFC, dated the Closing Date, in
which such officer, to the best of his knowledge, shall state that (i) the
representations and warranties of the Corporation, DNB, DNB-La. and DAFC in
this Agreement are true and correct in all material respects, (ii) the
Corporation, DNB, DNB-La. and DAFC have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date, (iii) no stop order suspending the effectiveness of a
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are threatened by the Commission and (iv) the Final
Prospectus does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Each of the Corporation, DNB, DNB-La. and DAFC shall have
furnished to the Underwriters the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for such parties, dated the Closing Date, in substantially the forms
attached hereto as Exhibits B through __, with only such changes as shall in
form and substance be satisfactory to the Representative and counsel for the
Underwriters.
(e) The Underwriters shall have received from Cadwalader, Xxxxxxxxxx
& Xxxx, counsel for the Underwriters, one or more opinions, each dated the
Closing Date, with respect to the validity of the Certificates, the Initial
Registration Statement, the Additional Registration Statement (if any), the
Final Prospectus, and such other related matters as the Representative may
reasonably require, and DAFC shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass on such
matters.
(f) The Underwriters shall have received from local counsel one or
more opinions, each dated the Closing Date, with respect to certain matters
regarding the Uniform Commercial Code and state income and franchise tax, as
adopted in each of the relevant jurisdictions, each in form and substance
satisfactory to the Representative and counsel for the Underwriters.
(g) The Underwriters shall have received from Xxxxxxxx, Xxxxxx &
Finger, counsel to DAFC, an opinion, dated the Closing Date, with respect to
certain corporate matters, in form and substance satisfactory to the
Representative and counsel for the Underwriters.
(h) At the date of the applicable Terms Agreement and at the Closing
Date, Deloitte & Touche LLP (or such other independent public accountants as
shall be named in the applicable Terms Agreement), certified independent
public accountants for DAFC, shall have furnished to the Underwriters a letter
or letters, dated respectively as of the date of the applicable Terms
Agreement and as of the Closing Date confirming that they are certified
independent public accountants within the meaning of the Act and the Exchange
Act, and the respective applicable published rules and regulations thereunder
and substantially in the form heretofore
-13-
agreed and otherwise in form and in substance satisfactory to the
Representative and counsel for the Underwriters.
(i) The Underwriters shall receive evidence satisfactory to it that,
on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the appropriate office or offices in each relevant
jurisdiction, reflecting the interest of the Trustee in the Receivables and
the proceeds thereof.
(j) The Underwriters shall have received from Xxxxx Xxxxxxx Xxxxxxx
& Xxxxx LLP, counsel to the Trustee, an opinion, dated the Closing Date, to
the effect that:
(i) The Trustee has been duly organized and is validly existing as a
banking corporation under the laws of New York and has the corporate
power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform
the duties and obligations of trustee under, and to accept the trust
contemplated by, the Pooling and Servicing Agreement, the Supplement and
the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement
and the Credit 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, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by
the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the
Pooling and Servicing Agreement, the Supplement and the Credit
Enhancement Agreement nor the consummation of any of the transactions
contemplated thereby require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action with
respect to, any governmental authority or agency under any existing
federal or state law governing the banking or trust powers of the
Trustee.
(vi) The execution and delivery of the Pooling and Servicing
Agreement, the Supplement and the Credit 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 (x) any law or regulation
of any governmental authority or agency under any existing federal or
state law governing the banking or trust powers of the Trustee, or (y)
the Certificate of Incorporation or By-laws of the Trustee.
(k) The Underwriters shall be named as recipients or shall have
received reliance letters, if applicable, with respect to any opinions
delivered to DAFC by counsel of the Credit Enhancement Provider, if any.
-14-
(l) The Underwriters shall have received evidence satisfactory to
them that the Certificates shall be rated in accordance with the applicable
Terms Agreement by the Rating Agency.
(m) The Underwriters shall have received a certificate of a Vice
President with responsibility for financial matters or other proper officer of
the Servicer, dated the Closing Date, in which such officer, to the best of
his or her knowledge, shall state that the representations and warranties of
the Servicer in the Pooling and Servicing Agreement and the Supplement are
true and correct.
(n) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters in all material respects and the Underwriters and counsel for the
Underwriters shall have received such information, certificates, opinions and
documents as the Underwriters or counsel for the Underwriters may reasonably
request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled
at, or at any time prior to, the Closing Date by the Underwriters. Notice of
such cancellation shall be given to the Corporation and DAFC in writing or by
telephone or facsimile confirmed in writing.
Section 8. Reimbursement of Underwriters' Expenses. If the sale of
the Certificates provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 7 (other than the
conditions set forth in paragraph (b) of clauses (ii), (iii), (iv) and (v) of
Section 7) is not satisfied, or because of any refusal, inability or failure
on the part of the Corporation, DNB, DNB-La. or DAFC to perform any agreement
herein or comply with any provision hereof other than by reason of a default
by the Underwriters, the Corporation, DNB, DNB-La. and DAFC will jointly and
severally reimburse the Underwriter for all out-of-pocket expenses (including
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Certificates and upon
demand such parties shall pay the full amount thereof to the Representative.
Section 9. Indemnification and Contribution. (a) DAFC agrees to
indemnify and hold harmless the Underwriters, each of the directors thereof,
each of the officers who are involved in the Offering and each person, if any,
who controls each Underwriter within the meaning of the Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or any other
federal or state statutory law or regulation, at common law 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 a material fact contained in any Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required
-15-
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by it in connection with investigating
or preparing to defend or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that (i) DAFC 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 or omission or alleged omission made in any of such
documents in reliance upon and in conformity with written information
furnished to DAFC by or on behalf of the Underwriters specifically for use
therein, and (ii) such indemnity with respect to any Preliminary Final
Prospectus shall not inure to any benefit of any Underwriter (or any person
controlling any of the Underwriters) from whom the person asserting any such
loss, claim, damage or liability purchased the Certificates which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) 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 omission of a
material fact contained in such Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or supplemented), if
DAFC had previously furnished a sufficient number of copies thereof to such
Underwriter. This indemnity agreement will be in addition to any liability
which DAFC may otherwise have.
(b) Each Underwriter agrees severally and not jointly to indemnify
and hold harmless DAFC, each of the directors thereof, each of the officers
who signs a Registration Statement, and each person who controls DAFC within
the meaning of the Act, to the same extent as the foregoing indemnities from
DAFC to the Underwriters, but only with reference to written information
furnished to DAFC by or on behalf of each Underwriter specifically for use in
the preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which each
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 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 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 9(a) or (b) unless the indemnifying party is
materially prejudiced thereby and in any event will not relieve it of any
liability which it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that, if the defendants in any such 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 which 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 defend such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof
-16-
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Underwriter(s)
being indemnified in the case of paragraph (a) of this Section 9, representing
the indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
(d) If the foregoing indemnification provisions of this Section 9
are unavailable or insufficient to hold harmless an indemnified party, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Transferor on the
one hand and the Underwriters on the other from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Transferor on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, 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 with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Certificates purchased under this Agreement (before deducting
expenses) received by the Transferor bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Certificates
purchased under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Transferor on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission.
The Transferor and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 9(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 9(d) shall be deemed to include, for purposes of this Section 9(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), no Underwriter nor any
person controlling any Underwriter shall be required to contribute any amount
in excess of the total discounts and commissions received by the Underwriters
in connection with the initial offering of the Certificates less the amount of
any damages which such Underwriter or such controlling person has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or
-17-
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 9(d) are several in proportion to their respective underwriting
obligations and not joint.
Section 10. Obligations of the Corporation, DNB and DNB-La. Each of
the Corporation, DNB and DNB-La. agrees with the Underwriters, for the sole
and exclusive benefit of the Underwriters and each person who controls the
Underwriters within the meaning of either the Act or the Exchange Act and not
for the benefit of any assignee thereof or any other person or persons dealing
with the Underwriters, in consideration of and as an inducement to its
agreement to purchase the Certificates from DAFC, jointly and severally to
indemnify and hold harmless the Underwriters and each person who controls the
Underwriters within the meaning of either the Act or the Exchange Act against
any failure by DAFC to perform its obligations to the Underwriters (including
its contribution obligation) pursuant to Section 9 hereof.
Section 11. Default by an Underwriter. If, on the Closing Date, any
Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements for
the purchase of such Certificates by other persons satisfactory to DAFC and
the Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining non-defaulting
Underwriter shall be severally obligated to purchase the Certificates which
the defaulting Underwriter or Underwriters agreed but failed to purchase on
the Closing Date in the respective proportions which the principal amount of
Certificates set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule I to the Terms Agreement bears to the aggregate
principal amount of Certificates set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule I to the Terms Agreement;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Certificates on the Closing Date if the
aggregate principal amount of Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds one-eleventh
of the aggregate principal amount of the Certificates to be purchased on the
Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase in total more than 110% of the principal amount of the
Certificates which it agreed to purchase on the Closing Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded and the remaining
Underwriters or other underwriters satisfactory to the Representative and DAFC
do not elect to purchase the Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or DAFC,
except that the provisions of Section 12 shall not terminate and shall remain
in effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context otherwise requires, any party
not listed in Schedule I to the Terms Agreement who, pursuant to this Section
11, purchases Certificates which a defaulting Underwriter agreed but failed to
purchase.
Section 12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Corporation, DNB, DNB-La., DAFC and of the 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
-18-
thereof, made by or on behalf of the Corporation, DNB, DNB-La. or DAFC or any
of the officers, directors or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the Certificates. The
provisions of Sections 8, 9, 10 and 5(h) hereof shall survive the termination
or cancellation of this Agreement.
Section 13. Notices. All communication hereunder shall be in writing
and, if sent to the Underwriters will be mailed, delivered or telecopied and
confirmed to them at 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: [J. Xxxxxxx Xxx Xxxx], with a copy to them at 1221 Avenue of the
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxx; if
sent to DAFC, will be mailed, delivered or telecopied and confirmed to them
care of Dillard Asset Funding Company, c/o JPMorgan Chase Bank, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration,
Telecopy No.: (000) 000-0000; or if sent to DNB or DNB-La., will be mailed,
delivered or telecopied and confirmed to them care of Xxxxxxx National Bank at
000 X. Xxxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attention:
______________, Telecopy No.: (602) _________; or if sent to the Corporation,
will be mailed, delivered or telecopied and confirmed to them care of
Xxxxxxx'x Inc. at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention:
______________, Telecopy No.: (501) _________.
Section 14. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of the
Act) with respect to the Certificates, transfer, deposit or otherwise convey
any Certificates into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or that
represents interests in, such Certificates without the prior written consent
of the Corporation and DAFC.
Section 15. Miscellaneous. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of New York (without
reference to conflict of law doctrine); it may be executed in two or more
counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns and the
officers and directors and controlling persons referred to in Section 9
hereof, and no other person shall have any right or obligation hereunder. This
Agreement supersedes all prior agreements and understandings between the
parties relating to the subject matter hereof, other than those contained in
the Terms Agreement executed in connection herewith. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. 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. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
Section 16. Effectiveness. This Agreement shall become effective
upon execution and delivery hereof.
-19-
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to DAFC, whereupon this letter and your
acceptance shall become a binding agreement by and among the Corporation, DNB,
DNB-La., DAFC and the Underwriters.
Very truly yours,
XXXXXXX'X INC.
By
--------------------------------------------
Name:
Title:
DILLARD NATIONAL BANK
By
--------------------------------------------
Name:
Title:
DILLARD NATIONAL BANK (f/k/a
MERCANTILE STORES NATIONAL
BANK)
By
--------------------------------------------
Name:
Title:
DILLARD ASSET FUNDING COMPANY
------------------------------------------------
By: Xxxxx Xxxxxxx, Administrator
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
XXXXXX XXXXXXX & CO. INCORPORATED
as Underwriter and as Representative
of the several Underwriters named in
the Terms Agreement
By
--------------------------------------------
Name:
Title:
Exhibit A
FORM OF TERMS AGREEMENT
-----------------------
DILLARD CREDIT CARD MASTER TRUST I
CLASS A FIXED RATE ASSET BACKED CERTIFICATES, SERIES 2002-
TERMS AGREEMENT
---------------
Dated: ________, 2002
To: Xxxxxxx'x, Inc.
Dillard National Bank
Dillard National Bank (formerly Mercantile Stores National Bank)
Dillard Asset Funding Company
Re: Underwriting Agreement dated August ____, 2002
Series Designation: Series 2002-______
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above-referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof. In the event of any inconsistency
between the provisions of this Agreement and the provisions of the
Underwriting Agreement, this Agreement will prevail.
Terms of the Certificates:
Initial
Invested Interest Rate
Class Amount or Formula Price to Public (1)
-------------------- ------------- --------------- -------------------
Class A $[________] _________% ______%
(1) Plus accrued interest at the applicable rate from _______, 2002.
Distribution Dates: Class A: the ______ day of each month (or if such ______
day is not a business day the next succeeding business day), commencing
_______, 2002.
A-1
Certificate Ratings:
Class A: [AAA] by Standard & Poor's
[Aaa] by Xxxxx'x
Credit Enhancement Provider:
Trustee: JPMorgan Chase Bank
Pooling and Servicing Agreement: The Amended and Restated Pooling and
Servicing Agreement, dated as of ______, 2002, as amended, among Dillard Asset
Funding Company, as Transferor, Dillard National Bank as Servicer, and
JPMorgan Chase Bank, as Trustee, on behalf of the Certificateholders of
Dillard Credit Card Master Trust.
Supplement: Series 2002-____ Supplement, dated as of __________ __, 2002,
among Dillard Asset Funding Company, as Transferor, Dillard National Bank as
Servicer, and JPMorgan Chase Bank, as Trustee, on behalf of the Series
2002-____ Certificateholders.
Purchase Price:
The purchase price payable by the Underwriters for the Certificates
covered by this Agreement will be the following percentage of the principal
amounts to be issued:
Per Class A Certificate: ______%
Registration Statement: Registration No. 333-67855
Underwriting Commissions, Concessions and Discounts:
The Underwriter's discounts and commissions, the concessions that
the Underwriter may allow to certain dealers, and the discounts that such
dealers may reallow to certain other dealers, each expressed as a percentage
of the principal amount of the Class A Certificates, shall be as follows:
Underwriting
Discounts Selling
Class and Concessions Concessions Reallowance
------------------- ------------------ --------------- --------------------
Class A _____% ______% ____%
Closing Date: ________, 2002, 10:00 a.m., New York Time
Location of Closing: [Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000]
Payment for the Certificates: Wire transfer of same day funds
A-2
Opinion Modifications:
Other securities being offered concurrently:
A-3
The Underwriters agree, severally and not jointly, subject to the
terms and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Certificates
set forth opposite their names on Schedule I hereto.
XXXXXX XXXXXXX & CO. INCORPORATED
As Underwriter and as Representative of
the several Underwriters named
in Schedule I hereto
By:
-------------------------------
Name:
Title:
Accepted:
XXXXXXX'X, INC.
By:
-------------------------------
Name:
Title:
DILLARD NATIONAL BANK
By:
-------------------------------
Name:
Title:
DILLARD NATIONAL BANK (f/k/a
MERCANTILE STORES NATIONAL BANK)
By:
-------------------------------
Name:
Title:
DILLARD ASSET FUNDING COMPANY
BY: JPMORGAN CHASE BANK,
as owner trustee
By:
-------------------------------
Name:
Title:
SCHEDULE I
UNDERWRITERS
$[_________] Principal Amount of Class A Fixed Rate Asset Backed Certificates,
Series 2002-___
Principal Amount
----------------
Xxxxxx Xxxxxxx & Co. Incorporated $[_________]
Total $[_________]
