Exhibit 1.1
PARTNERS FIRST CREDIT CARD MASTER TRUST
PARTNERS FIRST RECEIVABLES FUNDING LLC
(Transferor)
PARTNERS FIRST HOLDINGS, LLC
(Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
______________, 1998
[Underwriter]
As Representative of the Several Underwriters
Ladies and Gentlemen:
Partners First Receivables Funding, LLC, a Delaware limited
liability company (the "Company"), proposes to cause the Partners First
Credit Card Master Trust (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")
among the Company, as Transferor, Partners First Holdings, LLC
("Holdings"), as Servicer (the "Servicer"), and The Bank of New York, as
trustee (the "Trustee"), as supplemented by the Series Supplement having
the date stated in the applicable Terms Agreement, between the Company, as
Transferor, Holdings, as Servicer and the Trustee (the "Supplement"). The
Company is a wholly owned subsidiary of Partners First Receivables, LLC
("PFR"). PFR is a direct subsidiary of Holdings. Holdings, as Servicer,
PFR, as seller to the Transferor, and the Company, as Transferor, are
referred to collectively herein as the "Partners First Entities." The
assets of the Trust will include, among other things, Receivables (as
defined herein) transferred by BankBoston (NH), National Association
("BKB") and ▇▇▇▇▇▇ Trust and Savings Bank ("▇▇▇▇▇▇") to PFR and, in turn,
transferred by PFR to the Company and subsequently transferred by the
Company to the Trust pursuant to the Pooling and Servicing Agreement. The
Series of Certificates designated in the applicable Terms Agreement among
the Company, Holdings and the Representative of the several Underwriters
will be sold in a public offering through the underwriters listed on
Schedule I to the applicable Terms Agreement, one or more of which may act
as representative of such underwriters (any underwriter through which
Certificates are sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the
"Underwriter"; any representatives thereof may be referred to herein as a
"Representative"). Certificates of any Series sold to the Underwriters
shall be sold pursuant to a Terms Agreement by and among the Company,
Holdings and the Underwriter, a form of which is attached hereto as Exhibit
A (a "Terms Agreement"), which incorporates by reference this Underwriting
Agreement (the "Agreement"). 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, yield supplement account or other
similar arrangement for the benefit of the Certificateholders of such
Series ("Credit Enhancement"). With respect to any such Credit Enhancement,
the Company or Holdings, or both, may enter into an agreement (the "Credit
Enhancement Agreement") by and between such Partners First Entities and the
provider of the Credit Enhancement (the "Credit Enhancement Provider"). The
term "applicable Terms Agreement" means the Terms Agreement executed in
connection with the sale to the Underwriter of a Series of Certificates.
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 MasterCard(R) and VISA(R) revolving credit
card accounts of Holdings (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.
Whenever the Company determines to make an offering of
Certificates, the Company and Holdings will enter into a Terms Agreement
providing for the sale of the applicable Certificates to, and the purchase
and offering thereof by, the Underwriters. The Terms Agreement relating to
the Certificates shall specify the type of Certificates to be issued, the
names of the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the number of Certificates
which each such Underwriter severally agrees to purchase, the price at
which the Certificates are to be purchased by the Underwriters from the
Company, the initial public offering price, the time and place of delivery
and payment and other specific terms. The Terms Agreement may take the form
of an exchange of any standard form of written telecommunication between
you and the Company. Each offering of Certificates will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be
binding upon the Company, Holdings and each Underwriter participating in
the offering of such Certificates.
Section 1. Representations and Warranties. (a) Each of the Company
and Holdings, only as to itself and not jointly, represents and warrants
to, and agrees with, each Underwriter that:
(i) The Company 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 "1933
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, and 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 1933 Act (such
registration statement, the "Initial Registration Statement") has been
declared effective by the Commission. If any posteffective 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, 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) (the "Additional Registration Statement") relating to the
Certificates has been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the 1933 Act and, if so filed, has become
effective upon filing pursuant to Rule 462(b), then the Certificates
have been duly registered under the 1933 Act pursuant to the Initial
Registration Statement and such Additional Registration Statement or
(ii) an Additional 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 1933 Act pursuant to the
Initial Registration Statement and such Additional Registration
Statement. If the Company does not propose to amend the Initial
Registration Statement or, if an Additional Registration Statement has
been filed and the Company does not propose to amend it and if any
posteffective 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 has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
under the 1933 Act or, in the case of any Additional Registration
Statement, Rule 462(b). 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 posteffective amendments, have been furnished to the
Underwriters. Holdings proposes to file with the Commission pursuant
to Rule 424 ("Rule 424") under the 1933 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 Representative shall agree 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 the Company has advised the
Representative, 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;"
(ii) 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 Partners First Entities , threatened by
the Commission;
(iii) 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 1933 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 any supplement
thereto, 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 1933 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 therein or necessary to make the
statements therein not misleading; provided, however, 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 the Company or Holdings, as applicable, by or
on behalf of an Underwriter specifically for use in connection with
the preparation of a Registration Statement and the Final Prospectus;
(iv) Holdings is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Final Prospectus, and is duly qualified as a foreign limited
liability company and duly authorized to transact business and is in
good standing under the laws of each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of Holdings;
(v) The Company is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Final Prospectus, and is duly qualified as a foreign limited
liability company and duly authorized to transact business and is in
good standing under the laws of each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company and Holdings; and upon execution and delivery
of each Terms Agreement by the Company and Holdings, such Terms
Agreement shall have been duly authorized, executed and delivered by
the Company and Holdings;
(vii) As of the Closing Date (as defined in Section 2(a)), the
representations and warranties of the Company, as Transferor, or
Holdings, as Servicer, as applicable, in the Pooling and Servicing
Agreement and the Supplement will be true and correct in all material
respects;
(viii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the Trust is not required to be registered
under the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(ix) 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 by
each of the Company and Holdings and, when executed and delivered by
the Company, as Transferor, and Holdings, as Servicer, 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 the Company or Holdings, as applicable; 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, the Credit Enhancement Agreement has been duly
authorized, and when executed and delivered by the Trustee and Credit
Enhancement Provider, the Credit Enhancement Agreement will constitute
a valid and binding agreement of the Company and Holdings, as
applicable;
(x) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the securities or blue sky laws of
the various states), which is required for (A) the valid
authorization, issuance, sale and delivery of the Certificates or (B)
the execution, delivery or performance of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement, or the Credit Enhancement Agreement by the Company or
Holdings, as applicable, has been received;
(xi) 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 Company or Holdings, as applicable, for the
consummation of the transactions contemplated by this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement or the
Supplement, except such as have been obtained and made under the 1933
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;
(xii) The Company and Holdings, as applicable, are not in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company or Holdings, as applicable. The execution and delivery of this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Supplement and the Credit Enhancement Agreement by the
Company or Holdings, as applicable, the issuance and delivery of the
Certificates, the consummation by the Company or Holdings, as
applicable, of the transactions contemplated in this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement and the Registration Statement, and compliance by the
Company or Holdings with the terms of this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the Supplement
and the Credit Enhancement Agreement have been duly authorized by all
necessary corporate action on the part of the Company or Holdings, as
applicable, and do not and will not result in any violation of the
charter or bylaws of the Company or Holdings, as applicable, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or Holdings, as applicable, under
(A) any indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or Holdings, as
applicable, is a party or by which it may be bound or to which any of
its properties may be subject or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or Holdings, as applicable, or any of
their respective properties except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company or
Holdings, as applicable;
(xiii) Except as disclosed in the Final Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company or Holdings, as applicable, threatened
against or affecting the Company or Holdings, as applicable, that is
required to be disclosed in the Final Prospectus or that, in the final
outcome, could, in the judgment of the Company or Holdings, as
applicable, result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company or Holdings, as applicable, or that could
materially and adversely affect the properties or assets of the
Company or Holdings, as applicable, or that could adversely affect the
consummation of the transactions contemplated in this Agreement; the
aggregate liability or loss, if any, resulting from the final outcome
of all pending legal or governmental proceedings to which the Company
or Holdings, as applicable, is a party or which affect any of its
respective properties that are not described in the Final Prospectus,
including ordinary routine litigation incidental to its business,
would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company or Holdings, as applicable;
(xiv) Since the respective dates as of which information is given
in the Final Prospectus, except as otherwise stated therein, there has
not been (A) any material adverse change in the condition (financial
or otherwise) or in earnings, business affairs or business prospects
of the Company or Holdings, as applicable, or (B) any transaction
entered into by the Trust, the Company or Holdings, other than in the
ordinary course of business, that is material to the Trust or the
Certificateholders; and
(xv) Neither the Company nor Holdings nor any of their respective
affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes.
(b) Any certificate signed by any duly authorized officer of the
Company or Holdings, as applicable, and delivered to you or to counsel for
the Underwriters shall be deemed a representation and warranty by the
Company or Holdings, as applicable, to each Underwriter as to the matters
covered thereby.
Section 2. Purchase and Sale. (a) The several commitments of the
Underwriters to purchase Certificates pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and
conditions herein set forth. It is understood that the several Underwriters
propose to offer the Certificates for sale to the public, which may include
selected dealers, as set forth in the Final Prospectus.
(b) Unless otherwise provided in the applicable Terms Agreement,
payment for Certificates shall be made to the Company or to its order by
wire transfer of same day funds at the offices of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 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
Representative and the Company 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.
(c) Unless otherwise provided in the applicable Terms Agreement,
payment for the Certificates shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of
the Certificates registered in the name of Cede & Co. as nominee of The
Depository Trust Company and in such denominations as the Representative
shall request in writing not later than two full Business Days prior to the
Closing Date. The Company shall make the Certificates available for
inspection by the Representative in New York, New York not later than one
full Business Day prior to the Closing Date.
Section 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) If reasonably requested by you in connection with the offering
of the Certificates, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Certificates as you
and the Company deem appropriate, and immediately following the execution
of the Terms Agreement, the Company will prepare a Prospectus Supplement
that complies with the 1933 Act and that sets forth the number or principal
amount of Certificates covered thereby, the names of the Underwriters
participating in the offering and the number or principal amount of
Certificates which each Underwriter severally has agreed to purchase, the
name of each Underwriter, if any, acting as representative in connection
with the offering, the price at which the Certificates are to be purchased
by the Underwriters from the Company, the initial public offering price,
the selling concession and reallowance, if any, and such other information
concerning the Certificates as you and the Company deem appropriate in
connection with the offering of the Certificates. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters named therein as many copies of any preliminary prospectus
supplement, the Basic Prospectus and the Prospectus Supplement as you shall
reasonably request. In addition, to the extent that any Underwriter (i) has
provided to the Company Collateral Term Sheets or Series Term Sheets (each
as defined below) that such Underwriter has provided to a prospective
investor, the Company will file such Collateral Term Sheets or Series Term
Sheets as an exhibit to a report on Form 8-K within two Business Days of
its receipt thereof, or (ii) has provided to the Company Structural Term
Sheets or Computational Materials (each as defined below) that such
Underwriter has provided to a prospective investor, the Company 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 this 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) If at any time when the Final Prospectus is required by the
1933 Act to be delivered in connection with sales of the Certificates any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or counsel for the Company,
to amend the Registration Statement or amend or supplement the Final
Prospectus in order that the Final Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend any Registration Statement or amend or supplement the Final
Prospectus in order to comply with the requirements of the 1933 Act, the
Company will promptly prepare and file with the Commission, subject to
Section 3(d), such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement or
the Final Prospectus comply with such requirements.
(c) During the period when the Final Prospectus is required by the
1933 Act to be delivered in connection with sales of the Certificates or
during the entire period that any Class of Certificates is outstanding
which were expected to be publicly offered securities for purposes of
ERISA, the Company will, subject to Section 3(d), file promptly all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms
Agreement and the Closing Date, the Company will inform you of its
intention to file any amendment to any Registration Statement, any
supplement to the Final Prospectus or any document that would as a result
thereof be incorporated by reference in the Final Prospectus, will furnish
you with copies of any such amendment, supplement or other document and
will not file any such amendment, supplement or other document in a form to
which you or your counsel shall reasonably object.
(e) During the period when the Final Prospectus is required by the
1933 Act to be delivered in connection with the sales of the Certificates,
the Company will notify you immediately, and confirm the notice in writing,
(i) of the effectiveness of any amendment to any Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing of any
supplement to the Final Prospectus or any document that would as a result
thereof be incorporated by reference in the Final Prospectus, (iii) of the
receipt of any comments from the Commission with respect to any
Registration Statement or the Prospectus, (iv) of any request by the
Commission for any amendment to any Registration Statement or any
supplement to the Final Prospectus or for additional information relating
thereto or to any document incorporated by reference in the Final
Prospectus and (v) of the issuance by the Commission of any stop order
suspending any effectiveness of any Registration Statement, of the
suspension of the qualification of the Certificates for offering or sale in
any jurisdiction, or of the institution or threatening of any proceeding
for any of such purposes. The Company will use every reasonable effort to
prevent the issuance of any such stop order or of any order suspending such
qualification and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
(f) The Company will furnish to the Representative, without
charge, two copies of each Registration Statement as originally filed and
of all amendments thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith and copies of all consents and certificates of experts as you may
reasonably request, and has furnished or will furnish to you, for each
other Underwriter, one copy of each Registration Statement as originally
filed and of each amendment thereto.
(g) The Company will cause the Trust to make generally available
to Certificateholders and to the Representative as soon as practicable an
earnings statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Trust occurring after the effective
date of the 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 1933 Act and Rule 158 of the Commission
promulgated thereunder.
(h) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions as you
may designate and to maintain such qualifications in effect for a period of
not less than one year from the effective date of the Terms Agreement
applicable to such Certificates; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Certificates have been qualified as provided above.
(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 Company or Holdings, the Company or
Holdings, as applicable, shall furnish such documents and take any such
other actions.
(j) 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, Holdings will deliver to the Underwriters (i) the annual
Servicer's Certificate, (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 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 the Company is not the
Servicer, as soon thereafter as practicable.
(k) Between the date of the applicable Terms Agreement and the
Closing Date or such other date as is set forth in such Terms Agreement,
the Company will not, without your prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, the Certificates set forth in such Terms Agreement or
any similar securities, other than as set forth in such Terms Agreement.
Section 4. Payment of Expenses; Reimbursement. Each of the
Company and Holdings, only as to itself and not jointly, covenants and
agrees with the Underwriters that they will:
(a) Pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement and any
applicable Terms Agreement, including (i) the preparation,
printing and filing of each Registration Statement (including
financial statements and exhibits), as originally filed and as
amended, any preliminary prospectus supplements and the Final
Prospectus and any amendments or supplements thereto, and the cost
of furnishing copies thereof to the Underwriters, (ii) the
preparation, printing and distribution of this Agreement, the
Terms Agreement, the Pooling and Servicing Agreement, the
Supplement and the Credit Enhancement Agreement, if any, (iii) the
issuance and delivery of the Certificates to the Underwriters,
(iv) the fees and disbursements of the counsel for the Company and
Holdings, as applicable, and accountants, (v) the qualification of
the Certificates under the applicable securities laws in
accordance with Section 3(h) including filing fees and reasonable
fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with any blue sky survey,
(vi) any fees charged by rating agencies for rating any of the
Certificates and (vii) the fees and expenses incurred in
connection with the listing of the applicable Certificates on one
or more domestic or foreign stock exchanges.
(b) Pay or cause to be paid 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, the Credit Enhancement Agreement and the Certificates,
(ii) the cost of delivering the Certificates to the Underwriters,
(iii) any fees charged by investment rating agencies for the
rating of such Certificates, and (iv) the reasonable expenses and
costs (not to exceed the amount specified in the applicable Terms
Agreement) 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 (it
being understood that, except as specified in this Section 4 and
in Sections 7 and 8 hereof, the Underwriters will pay all their
own costs and expenses, including the cost of printing any
Agreement among Underwriters, the fees of counsel to any
Underwriter, transfer taxes on resale of any Certificates by them
and advertising expenses connected with any offers that they may
make).
(c) Reimburse the Underwriters named in the applicable
Terms Agreement for all of their out of pocket expenses, including
the reasonable fees and disbursements of counsel for such
Underwriters, if such Terms Agreement is terminated by you in
accordance with the provisions of Section 6 hereof.
Notwithstanding the foregoing, the Underwriters may agree
to reimburse the Company or Holdings, as applicable, for certain expenses
incurred in connection with the issuance and distribution of the
Certificates of any series if so specified in the applicable Terms
Agreement.
Section 5. Representations and Warranties of the
Underwriters. Each Underwriter severally represents, warrants, covenants
and agrees with the Company or Holdings, as applicable, that:
(a) It either (A) has not provided any potential investor
with a Collateral Term Sheet (that 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) has, substantially contemporaneously with its first
delivery of such Collateral Term Sheet to a potential investor,
delivered such Collateral Term Sheet to the Company, which
Collateral Term Sheet, if any, is attached to this Agreement as
Exhibit B.
(b) It either (A) has not provided any potential investor
with a Structural Term Sheet or Computational Materials, or (B)
has provided any such Structural Term Sheet or Computational
Materials to the Company, which Structural Term Sheets and
Computational Materials, if any, are attached to this Agreement as
Exhibit C.
(c) It either (A) has not provided any potential investor
with a Series Term Sheet or (B) has provided any Series Term Sheet
to the Company, which Series Term Sheets, if any, are attached to
this Agreement as Exhibit D.
(d) Each Collateral Term Sheet bears 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 bear a legend substantially as follows
(or in such other form as may be agreed prior to the date of this
Agreement):
This information does not constitute either an offer to
sell or a solicitation of an offer to buy any of the
securities referred to herein. Information contained
herein is confidential and provided for information only,
does not purport to be complete and should not be relied
upon in connection with any decision to purchase the
securities. This information supersedes any prior
versions hereof and will be deemed to be superseded by
any subsequent versions including, with respect to any
description of the securities or the underlying assets,
the information contained in the final Prospectus and
accompanying Prospectus Supplement. Offers to sell and
solicitations of offers to buy the securities are made
only by the final Prospectus and the related Prospectus
Supplement.
(f) It has not, and will not, without the prior written
consent of the Company, provide any Collateral Term Sheets,
Structural Term Sheets, Series Term Sheets or Computational
Materials, other than any referred to in clauses (a), (b), or (c)
above, to any investor after the date of this Agreement.
(g) 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 ▇▇▇
▇▇▇▇ (Investment Advertisements)(Exemptions) Order 1996 or who is
a person to whom the document may otherwise lawfully be issued or
passed on, it has complied and shall comply with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇ of Great Britain
with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom
and if that Underwriter is an authorized person under the
Financial Services ▇▇▇ ▇▇▇▇, 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 ▇▇▇ ▇▇▇▇ or in Regulation
1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇ & Wood on behalf of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ on behalf of Greenwood
Trust Company (which letter, and the SEC staff's response thereto, were
publicly available April 5, 1996).
Section 6. Conditions of Underwriters' Obligations. Except as
otherwise provided in the Terms Agreement, the obligations of the
Underwriters to purchase and pay for the Certificates pursuant to any such
Terms Agreement are subject to the accuracy of the representations and
warranties of the Company and Holdings contained herein at and as of the
date hereof, the date of the Terms Agreement, and the Closing Date or
contained in certificates of any officer of the Company or Holdings
delivered pursuant to the provisions hereof, to the performance by the
Partners First Entities of its obligations hereunder, and the following
further conditions:
(a) At the Closing Date, no stop order suspending the
effectiveness of the Registration Statement and the Additional Registration
Statement (if applicable) shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending
or, to your knowledge or the knowledge of the Partners First Entities,
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters.
(b) At the applicable Closing Date, you shall have received a
signed opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Holdings, dated
as of the Closing Date, together with signed or reproduced copies of such
opinion for each of the other Underwriters, in form and substance
satisfactory to you or your counsel, with respect to general corporate
matters.
(c) The Underwriters shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, one or more opinions,
in form and substance satisfactory to the Underwriter's counsel, each dated
the applicable Closing Date, with respect to the validity of the
Certificates, the Initial Registration Statement, the Additional
Registration Statement (if any), the Final Prospectus, certain matters of
the Uniform Commercial Code, as adopted in the State of Delaware, and such
other related matters as the Underwriters may reasonably require, and each
of the Company and Holdings shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass on such
matters.
(d) At the applicable Closing Date, you shall have received the
favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, dated as of the applicable Closing Date, together with signed
or reproduced copies of such opinion for each of the other Underwriters,
the Certificates, this Agreement, the Registration Statement, the Final
Prospectus, the Pooling and Servicing Agreement, the Supplement and such
other related matters as you may require. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the Limited Liability Company
Law of the State of Delaware and the federal law of the United States, upon
the opinions of counsel satisfactory to you. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and Holdings and certificates of public officials.
(e) At the applicable Closing Date, you shall have received the
favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Trustee,
dated as of the applicable Closing Date, together with signed or reproduced
copies of such opinion for each of the other Underwriters with respect to
such matters as you may require.
(f) At the applicable Closing Date there shall not have been,
since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition (financial or otherwise) or in the
earnings, business affairs or business prospects of the Company or
Holdings, whether or not arising in the ordinary course of business, and
you shall have received separate certificates of an authorized officer of
the Company and Holdings, dated as of such Closing Date, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties of the Company and Holdings, as applicable,
contained in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of such Closing Date, (iii) the
Company and Holdings, as applicable, has complied with all agreements and
satisfied all conditions on its part to be complied with or satisfied at or
prior to such Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
best knowledge of such person, no proceedings for that purpose have been
initiated or threatened by the Commission.
(g) At the date of the Final Prospectus and at the Closing Date,
Ernst & Young, L.L.P. (or such other independent public accountants as
shall be named in the applicable Terms Agreement), certified independent
public accountants for the Partners First Entities, shall have furnished to
the Underwriters a letter or letters, dated respectively as of the date of
the Final Prospectus and as of the Closing Date confirming that they are
certified independent public accountants within the meaning of the 1933 Act
and the Exchange Act, and the respective applicable published rules and
regulations thereunder and substantially in the form heretofore agreed and
otherwise in form and in substance satisfactory to the Representative and
counsel for the Underwriters.
(h) Subsequent to the date of the Terms Agreement relating to such
Certificates, none of the following shall have occurred: (i) a material
adverse change in the financial markets in the United States or the United
States shall have become engaged in the outbreak or escalation of
hostilities involving the United States or there has been a declaration by
the United States of a national emergency or a declaration of war, (ii) a
banking moratorium shall have been declared by either Federal or New York
State authorities, or (iii) trading in any securities of the Partners First
Entities shall have been suspended or materially limited by the Commission
or the New York Stock Exchange, or if trading generally on the New York
Sock Exchange shall have been suspended or materially limited, or minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices shall have been required, by such exchange or by order of the
Commission or by any other governmental authority, any of which events, in
your reasonable judgment, renders it inadvisable to proceed with the public
offering or the delivery of the Certificates.
(i) The Underwriters shall receive evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been
or are being filed in the office of the Secretary of State of the State of
Delaware, reflecting the interest of the Trustee in the Receivables and the
proceeds thereof.
(j) The Underwriters shall have received evidence satisfactory to
them that the Certificates shall be rated in accordance with the applicable
Terms Agreements by the Rating Agency and subsequent to the date of the
applicable Terms Agreement there shall not have occurred a downgrading in
the rating assigned to the Certificates or any other securities issued by
the Company by any "nationally recognized statistical rating agency", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its rating of the Certificates or any
of such other securities.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by you by notice to the Company at any time on
or prior to the applicable Closing Date, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 hereof. Notwithstanding any such termination, the provisions of
Sections 7, 8 and 9 shall remain in effect.
Section 7. Indemnification. (a) The Company and Holdings each
agree to jointly and severally indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of an untrue
statement or alleged untrue statement of a material fact contained
in any Registration Statement as originally filed (or any
amendment thereto), and all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact contained
in any preliminary prospectus, or any preliminary prospectus
supplement, or the Final Prospectus (or any amendment of
supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company or Holdings; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by
you), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that (i) this indemnity agreement does not apply to any
loss, liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company or Holdings by any Underwriter through you expressly for use in
any Registration Statement as originally filed (or any amendment thereto)
or any preliminary prospectus, or any preliminary prospectus supplement, or
the Final Prospectus (or any amendment or supplement thereto) and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of the 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
the Company or Holdings, as applicable, shall sustain the burden of proving
(A) such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as supplemented, excluding, in either case, 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 1933 Act and (B) that the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company or
Holdings may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and Holdings, their respective directors, each officer
of the Company who signed the Registration Statement, and each person, if
any, who the Company or Holdings within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), as incurred, but only
with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement as originally
filed (or any amendment thereto) or any preliminary prospectus, or any
preliminary prospectus supplement or the Final Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or Holdings by such Underwriter
through you expressly for use in any Registration Statement as originally
filed (or any amendment thereto) or any preliminary prospectus, or any
preliminary prospectus supplement or the Final Prospectus (or any amendment
or supplement thereto). This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have had.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel and counsel to the
indemnifying parties) for all indemnified parties in connection with any
one action or but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnifying party in accordance with such request prior to the date of
such settlement.
Section 8. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided
for in Section 7 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and Holdings on the one hand and the Underwriters on the other
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by
the Company or Holdings on the one hand and one or more of the Underwriters
on the other, as incurred, in such proportions that (a) the Underwriters
are responsible for that portion represented by the percentage that results
from dividing the underwriting discount by the net proceeds of the offering
(before deducting expenses) received by the Company and (b) the Company and
Holdings are responsible for the balance; provided, however, that (i) in no
case shall any Underwriter be liable or responsible for any amount in
excess of the underwriting discount applicable to the Certificates
purchased by such Underwriter hereunder and under the applicable Terms
Agreement and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Company, Holdings and the Underwriters each agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. For purposes of this
Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of each of the Company
and Holdings, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company or Holdings
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as the Company and Holdings, respectively. The Underwriters
respective obligations to contribute pursuant to this Section 8 are several
in proportion to the amount of Certificates set opposite their respective
names in Schedule I to the applicable Term Sheet.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company, Holdings, the Underwriters and their
respective officers set forth in or made pursuant to this Agreement and any
Terms Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company,
Holdings or any Underwriter or controlling person and shall survive
delivery of any payment for the Certificates. The provisions of Sections 4,
7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters participating in an offering of Certificates shall
fail at the applicable Closing Date to purchase the Certificates which it
or they are obligated to purchase hereunder and under the applicable Terms
Agreement (the "Default Securities"), you shall have the right, within 36
hours thereafter, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set forth; if however, you have not completed such arrangements within such
36 hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Certificates to be purchased pursuant to such
Terms Agreement, the nondefaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all
nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the Certificates to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without liability
on the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default that does not result in the
termination of the applicable Terms Agreement, either you or the Company
shall have the right to postpone the applicable Closing Date for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications under
this Agreement and any Terms Agreement shall be in writing and shall be
deemed to have been duly given if delivered, mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to each of you at your respective addresses set forth on the first
page hereof, or in respect of any Terms Agreement, to such other person and
place as may be specified therein; notices to the Company shall be directed
to it at Partners First Receivables Funding LLC, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; notices to Holdings shall be directed to it
at Partners First Holdings LLC, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section 12. Parties. This Agreement herein set forth and any Terms
Agreement is made solely for the benefit of any Underwriter which becomes a
party to a Terms Agreement, the Company, Holdings and, to the extent
expressed, any person controlling the Company or Holdings or any such
Underwriter, and the directors of the Company, its officers who have signed
the Registration Statement, and their respective executors, administrators,
successors and assigns and, subject to the provisions of Section 10, no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any
purchaser, as such purchaser, from any Underwriter of the Certificates. All
of the obligations of any Underwriters hereunder and under any Terms
Agreement are several and not joint.
Section 13. Governing Law and Time. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 14. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party,
all such counterparts taken together shall constitute one and the same
agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement among the Company, Holdings
and each Underwriter in accordance with its terms.
Very truly yours,
PARTNERS FIRST HOLDINGS, LLC
By:__________________________________
Name:
Title:
PARTNERS FIRST RECEIVABLES FUNDING LLC
By:________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
[UNDERWRITER]
By: ________________________________
Name:
Title:
For themselves and the other several Underwriters named
in Schedule I to the applicable Terms Agreement
Exhibit A
PARTNERS FIRST CARD MASTER TRUST
[Title of Securities]
TERMS AGREEMENT
Dated: ___________, ____
To: Partners First Holdings, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Partners First Receivables Funding LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement dated __________, 1998
Ladies and Gentlemen:
We (the "Representative[s]") understand that Partners First
Receivable Funding, LLC, a Delaware limited liability company (the
"Company"), proposes to issue and sell $_____________ of Certificates to be
issued by Partners First Credit Card Master Trust. This Agreement is the
Terms Agreement referred to in the underwriting agreement dated __________,
____ (the "Underwriting Agreement"). Subject to the terms and conditions
set forth herein or incorporated by reference herein, the Underwriters
named below (the "Underwriters") offer to purchase, severally and not
jointly, the respective Certificates.
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.
Terms of the Certificates:
Initial Invested Interest Rate Price to
Class Amount or Formula Public (1)
----- ---------------- ------------- ----------
Class _ $___________ ____% _________%
Class _ $ __________ ____% _________%
(1) Plus accrued interest at the applicable rate from ____________, ____.
Distribution Dates: the __th calendar day of each Month,
commencing __________, ____.
Certificate Ratings:
Class _: ___ by Standard & Poor's
___ by ▇▇▇▇▇'▇
Class _: ___ by Standard & Poor's
___ by ▇▇▇▇▇'▇
Credit Enhancement Provider:
Trustee: The Bank of New York
Pooling and Servicing Agreement: Dated __________, ____, among Partners
First Receivables Funding Corporation, as Transferor, Partners First
Holdings, LLC, as Servicer, and The Bank of New York, as Trustee, on behalf
of the Certificateholders of Partners First Credit Card Master Trust
Supplement: Series ______ Supplement, dated _________, ____, among Partners
First Receivables Financing Corporation, as Transferor, Partners First
Holdings, LLC, as Servicer, and The Bank of New York, as Trustee, on behalf
of the Series _______ 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: __________%
Per Class B Certificate: __________%
Registration Statement: Registration No. 333-29495
Underwriting Commissions, Concessions and Discounts:
The Underwriters' discounts and commissions, the
concessions that the Underwriters 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 _ and Class
_ Certificates, shall be as follows:
Underwriting
Discounts Selling
Class and Concessions Concessions Reallowance
Class _ _____% _____% _____%
Class _ _____% _____% _____%
Closing Date: ______, ____, 10:00 a.m., New York Time
Location of Closing: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Payment for the Certificates: Wire transfer of same day funds
Blue Sky Fees: Up to $
Opinion Modifications:
Other securities being offered concurrently:
Currency:
Redemption provisions:
Listing requirement: [None] [NYSE] [BSE] [Luxembourg]
Reimbursement of expenses:
Other terms and conditions:
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters, the Company and Holdings, please sign and
return to the undersigned a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement,
shall be a binding agreement among the Underwriters named herein, the
Company and Holdings in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
[Representative[s]]
By: ________________
Acting on behalf of themselves
and the other named Underwriters
Confirmed and accepted as of
the date first above written:
PARTNERS FIRST HOLDINGS, LLC
By: ______________________
Name and Title:
PARTNERS FIRST RECEIVABLES FUNDING LLC
By: ______________________
Name and Title:
SCHEDULE I
UNDERWRITERS
$___________ Principal Amount of Class _____% Asset Backed Certificates,
Series ______
Underwriters Principal Amount
-------------
Total $
$__________ Principal Amount of Class _____% Asset Backed Certificates,
Series ______
Underwriters Principal Amount
-------------
Total $
Exhibit B
Collateral Term Sheets
Exhibit C
Structural Term Sheets and Computational Materials
Exhibit D
Series Term Sheets
