EXECUTION COPY
TRAVELERS BANK CREDIT CARD MASTER TRUST I
$227,500,000 Class A
6.00% Asset-Backed Certificates
Series 1998-1
UNDERWRITING AGREEMENT
February 26, 1998
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. CC Credit Card Corporation, a Delaware Corporation (the
"Transferor") proposes to cause the Travelers Bank Credit Card Master Trust I to
issue $227,500,000 aggregate principal amount of Class A 6.00% Asset-Backed
Certificates, Series 1998-1 (the "Class A Certificates") pursuant to the Pooling
and Servicing Agreement to be dated as of March 1, 1998, as supplemented by the
Series 1998-1 Supplement thereto, to be dated as of March 1, 1998 (together, the
"Pooling and Servicing Agreement") among the Transferor, Travelers Bank & Trust,
fsb, as servicer (in such capacity, the "Servicer") and The Bank of New York, as
trustee (the "Trustee").
Simultaneously with the issuance of the Class A Certificates the
Trust will issue $12,500,000 aggregate initial principal amount of Class B
Asset-Backed Certificates, Series 1998-1 (the "Class B Certificates") and
$10,000,000 aggregate initial principal amount of Class C Asset-Backed
Interests, Series 1998-1 (the "Class C Interests"). The Class B Certificates
will be subordinate to the Class A Certificates and the Class C Interests will
be subordinate to the Class A Certificates and the Class B Certificates. The
Class B Certificates and the Class C Interests will initially be retained by the
Transferor. The assets of the Trust (the "Trust Assets") will include, among
other things, certain amounts due (the "Receivables") on a pool of MasterCard(R)
and Visa(R) revolving credit card accounts (the "Accounts") owned by Travelers
Bank & Trust, fsb and The Travelers Bank USA. The Accounts will be selected by
Travelers Bank & Trust, fsb ("Travelers Bank, fsb") and by The Travelers Bank
USA ("Travelers Bank
USA" and, collectively with Travelers Bank, fsb, the "Banks") and designated and
the Receivables therein transferred to the Transferor by the Banks pursuant to
separate Receivables Transfer Agreements, one between Travelers Bank, fsb and
the Transferor and the other between Travelers Bank USA and the Transferor and
each to be dated as of March 1, 1998 (collectively, the "Receivables Transfer
Agreements").
Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified in the Pooling and Servicing Agreement.
The Transferor hereby agrees with Salomon Brothers Inc and Chase
Securities Inc. (the "Underwriters") as follows:
2. Representations and Warranties of the Transferor. The Transferor
represents and warrants to, and agrees with, the Underwriters that:
(a) The Transferor is a Delaware corporation duly organized and
validly existing in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own or lease its properties
and conduct its business as such properties are presently owned or leased and as
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement, the Class A Certificates, the Pooling and
Servicing Agreement and the Receivables Transfer Agreements (the Pooling and
Servicing Agreement and the Receivables Transfer Agreements, together, the
"Transaction Documents").
(b) The execution and delivery of this Agreement, the Class A
Certificates and each of the Transaction Documents, the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions contemplated hereunder and thereunder have been duly authorized by
the Transferor by all necessary action on the part of the Transferor.
(c) This Agreement has been duly authorized and validly executed and
delivered by the Transferor.
(d) Each of the Transaction Documents will be executed and delivered
by the Transferor on or before the Closing Date, and when executed and delivered
by the other parties thereto, each will constitute a valid and binding agreement
of the Transferor, enforceable against the Transferor in accordance with its
terms, except to the extent that (i) the enforceability thereof may be subject
to insolvency, reorganization, moratorium, receivership or other similar laws
now or hereafter in effect relating to creditors' or other obligees' rights
generally, (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought and
(iii) the enforceability of rights of indemnity thereunder may be subject to
limitations of public policy under applicable securities laws.
(e) The Class A Certificates when issued pursuant to the terms of
the Pooling and Servicing Agreement and, when executed by the Transferor and
authenticated by the Trustee in accordance with the Pooling and Servicing
Agreement and delivered pursuant to this Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and
2
Servicing Agreement and the Class A Certificates will be, in all material
respects, in the form contemplated by the Pooling and Servicing Agreement and
will conform to the description thereof contained in the Prospectus and
Registration Statement, as amended or supplemented.
(f) The Transferor is not in violation of any Requirement of Law or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other instrument to which it is a party or
by which it is bound or to which any of its property is subject, which
violations or defaults separately or in the aggregate would have a material
adverse effect on the Transferor or the Trust.
(g) Neither the issuance and sale of the Class A Certificates, nor
the execution and delivery by the Transferor of this Agreement, the Class A
Certificates or the Transaction Documents, nor the incurrence by the Transferor
of the obligations herein and therein set forth, nor the consummation of the
transactions contemplated hereunder or thereunder, nor the fulfillment of the
terms hereof or thereof does or will (i) violate, in any material respect, any
Requirement of Law presently in effect, applicable to it or its properties or by
which it or its properties are or may be bound or affected, (ii) conflict, in
any material respect, with, or result in a material breach of, or constitute a
default under any material provision of any indenture, contract, agreement,
deed, lease, mortgage or instrument to which it is a party or by which it or its
properties are bound, or (iii) result in the creation or imposition of any Lien
upon any of its property or assets, except for those encumbrances created under
the Pooling and Servicing Agreement.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by the Transferor of this Agreement, the Class A
Certificates or the Transaction Documents, or to the consummation of the
transactions contemplated hereunder and thereunder, or to the fulfillment of the
terms hereof and thereof have been or will have been obtained on or before the
Closing Date.
(i) All actions required to be taken by the Transferor as a
condition to the offer and sale of the Class A Certificates as described herein
or the consummation of any of the transactions described in the Prospectus and
Registration Statement have been or, prior to the Closing Date, will be taken.
(j) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939.
(k) The representations and warranties made by the Transferor in the
Pooling and Servicing Agreement and made in any Officer's Certificate of the
Transferor delivered pursuant to the Pooling and Servicing Agreement will be
true and correct at the time made and on and as of the Closing Date as if set
forth herein.
3
(l) The Transferor agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Receivables,
except as provided in the Pooling and Servicing Agreement, and agrees to take
all action required to be taken by it under the Pooling and Servicing Agreement
in order to maintain the security interest in the Receivables granted pursuant
to the Pooling and Servicing Agreement, and upon execution and delivery of the
Pooling and Servicing Agreement by the Trustee, the Trustee will have acquired
beneficial ownership of all of the Transferor's right, title and interest in and
to the Receivables.
(m) A registration statement on Form S-3 (No. 333-40381), including
a form of prospectus and such amendments thereto as may have been required to
the date hereof, relating to the Class A Certificates and the offering thereof
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with, and has been declared effective by, the Securities
and Exchange Commission (the "Commission"). If any post-effective amendment to
such registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment has
been declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, and "Effective Date" means the date of the
Effective Time. Such registration statement, as amended at the Effective Time,
is hereinafter referred to as the "Registration Statement." The Transferor
proposes to file with the Commission pursuant to Rule 424(b) ("Rule 424(b)")
under the Act a supplement (the "Prospectus Supplement") to the prospectus
included in the Registration Statement (such prospectus, in the form it appears
in the Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424(b), is hereinafter referred to as the
"Base Prospectus") relating to the Class A Certificates and the method of
distribution thereof. The Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, are hereinafter
referred to as the "Prospectus."
(n) On the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and on the date of this Agreement, the Registration Statement and the Prospectus
conform, and at the time of filing of the Prospectus pursuant to Rule 424(b) the
Registration Statement and the Prospectus will conform, in all respects with the
requirements of the Act and the Rules and Regulations, and the Registration
Statement does not include, and will not include, any untrue statement of a
material fact or omit, and will not omit, to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and
the Prospectus does not include and will not include, any untrue statement of a
material fact or omit, and will not omit, to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the foregoing does not apply
to statements in or omissions from either of such documents based upon
information furnished to the Transferor by the Underwriters specifically for use
therein.
4
(o) KPMG Peat Marwick, LLP are independent public accountants with
respect to the Transferor within the meanings of the Act and the Rules and
Regulations.
(p) The Trust is not now, and immediately following the sale of the
Class A Certificates pursuant to this Agreement will not be, required to be
registered under the Investment Company Act of 1940, as amended.
3. Representations and Warranties of the Banks. Each of the Banks (each,
respectively, a "Bank"), with respect to itself, represents and warrants to, and
agrees with, the Underwriters that:
(a) With respect to Travelers Bank, fsb, it is a federally chartered
savings bank duly organized and validly existing in good standing under the laws
of the United States, and, with respect to Travelers Bank USA, it is a Delaware
state-chartered bank, and the Bank has all requisite corporate power and
authority to own or lease its properties and conduct its business as such
properties are presently owned or leased and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement and each of the Transaction Documents to which it is party.
(b) With respect to Travelers Bank, fsb, it owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to service the Receivables, except
such licenses, permits, certificates, consents, orders, approvals and other
authorizations the failure to own, possess or obtain does not and will not
separately or in the aggregate have a material adverse effect on the ability of
Travelers Bank, fsb to service the Receivables.
(c) The execution and delivery of this Agreement, and each of the
Transaction Documents to which it is a party, the incurrence of the obligations
herein and therein set forth and the consummation of the transactions
contemplated hereunder and thereunder have been duly authorized by the Bank by
all necessary action on the part of the Bank.
(d) The execution and delivery of this Agreement has been duly
authorized by the Bank.
(e) Each of the Transaction Documents to which the Bank is a party
will be executed and delivered by the Bank on or before the Closing Date, and
when executed and delivered by the other parties thereto, will constitute a
valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms, except to the extent that (i) the enforceability
thereof may be subject to insolvency, reorganization, moratorium, receivership
or other similar laws now or hereafter in effect relating to creditors' or other
obligees' rights generally, (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (iii) the enforceability of rights of indemnity thereunder
may be subject to limitations of public policy under applicable securities laws.
5
(f) It is not in violation of any Requirement of Law or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other instrument to which it is a party or by which it
is bound or to which any of its property is subject, which violations or
defaults separately or in the aggregate would have a material adverse effect on
the Bank or the Trust.
(g) Neither the issuance and sale of the Class A Certificates, nor
the execution and delivery by the Bank of this Agreement, or the Transaction
Documents to which it is a party, nor the incurrence by the Bank of the
obligations herein and therein set forth, nor the consummation of the
transactions contemplated hereunder or thereunder, nor the fulfillment of the
terms hereof or thereof, nor the sale of the Receivables to the Corporation nor
the granting of a security interest in the Receivables to the Trustee does or
will (i), in any material respect, violate any Requirement of Law presently in
effect, applicable to it or its properties or by which it or its properties are
or may be bound or affected, (ii) conflict, in any material respect, with, or
result in a material breach of, or constitute a default under any material
provision of, any indenture, contract, agreement, deed, lease, mortgage or
instrument to which it is a party or by which it or its properties are bound, or
(iii) result in the creation or imposition of any Lien upon any of its property
or assets, except for those encumbrances created under the Receivables Transfer
Agreement to which it is a party.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by the Bank of this Agreement, or the
Transaction Documents to which it is a party, or to the consummation of the
transactions contemplated hereunder and thereunder, or to the fulfillment of the
terms hereof and thereof have been or will have been obtained on or before the
Closing Date, except where the failure to do so would not have a material
adverse effect on the ability of the Bank to execute or deliver this Agreement
or the transaction Documents or to consummate the transactions contemplated
hereunder and thereunder or to fulfill the terms hereof and thereof.
(i) All actions required to be taken by the Bank as a condition to
the offer and sale of the Class A Certificates as described herein or the
consummation of any of the transactions described in the Prospectus and
Registration Statement have been or, prior to the Closing Date, will be taken.
(j) The representations and warranties made by the Bank in any of
the Transaction Documents to which it is a party and made in any Officer's
Certificate of the Bank delivered pursuant to any of the Transaction Documents
to which it is a party will be true and correct at the time made and on and as
of the Closing Date as if set forth herein.
(k) The Bank has not granted, assigned, pledged or transferred and
shall not grant, assign, pledge or transfer to any Person an ownership interest
or a security interest in, or any other right, title or interest in, the
Receivables, except as provided in the respective
6
Receivables Transfer Agreement, and it agrees to take all action required by the
respective Receivables Transfer Agreement in order to provide for the transfer
of the Receivables to the Transferor or to maintain the security interest in the
Receivables granted pursuant to the Receivables Transfer Agreement, and upon
execution and delivery of the Pooling and Servicing Agreement by the Trustee,
the Trustee will have acquired beneficial ownership of all of the Bank's right,
title and interest in and to the Receivables.
(l) On the Effective Date, those statements in the Prospectus which
relate to the Bank or to the credit card activities of the Bank did not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements relating to the Bank or the credit card
activities of the Bank, in light of the circumstances under which they were
made, not misleading, and on the date of this Agreement, and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Prospectus does not
include, and will not include, any untrue statement of a material fact and does
not omit, and will not omit, to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that the foregoing does not apply to statements in or
omissions based upon information furnished to the Bank or the Transferor by the
Underwriters specifically for use therein.
(m) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, prospects, management, financial position
or results of operations of the Bank, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
4. Purchase, Sale, Payment and Delivery of the Class A Certificates.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Transferor agrees to sell to the Underwriters, and the Underwriters agree,
severally, and not jointly, to purchase from the Transferor, at a purchase price
of 99.65583% of the principal amount thereof, $227,500,000 aggregate principal
amount of the Class A Certificates, each Underwriter to purchase the amount set
forth opposite the name of such Underwriter on Schedule A hereto (or such
increased principal amount of Class A Certificates as set forth in Section 13
hereof).
(b) The Transferor will deliver the Class A Certificates to you
against payment of the purchase price in immediately available funds, drawn to
the order of the Transferor, at the office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, in New York, New York at 10:00 A.M., New York City time, on March 6, 1998,
or at such other time not later than seven full business days thereafter as you
and the Transferor determine, such time being herein referred to as the "Closing
Date." Each of the Class A Certificates so to be delivered shall be represented
by one or more definitive certificates registered in the name of Cede & Co., as
nominee for The Depository Trust Company. The Transferor shall make such
definitive certificates representing the Class A Certificates available for
inspection by the Underwriters at the office at which the Class A Certificates
are to be delivered no later than five hours before the close of business in New
York City on the business day prior to the Closing Date.
7
5. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Class A Certificates for sale to the
public (which may include selected dealers) as set forth in the Prospectus.
6. Certain Agreements of the Transferor. The Transferor agrees with the
Underwriters that:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount of
Class A Certificates covered thereby and the terms thereof not otherwise
specified in the Base Prospectus, the price at which such Class A Certificates
are to be purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the Transferor
deems appropriate. The Transferor will transmit the Prospectus, including such
Prospectus Supplement, to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing with the Commission pursuant to Rule
424(b). The Transferor will not file any amendment of the Registration Statement
with respect to the Class A Certificates or supplement to the Prospectus unless
a copy has been furnished to you for your review a reasonable time prior to the
proposed filing thereof or to which you shall reasonably object to in writing.
The Transferor will advise you promptly of (i) the effectiveness of any
amendment or supplementation of the Registration Statement or Prospectus, (ii)
any request by the Commission for any amendment or supplementation of the
Registration Statement or the Prospectus or for any additional information,
(iii) the receipt by the Transferor of any notification with respect to the
suspension of qualification of the Class A Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes and (iv) the institution by the Commission of any stop order proceeding
in respect of the Registration Statement, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(b) If, at any time when a prospectus relating to the Class A
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would include
an 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 is necessary at any time to
amend the Prospectus to comply with the Act, the Transferor promptly will
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither your consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 7.
(c) As soon as practicable, the Transferor will cause the Trust to
make generally available to the Certificateholders an earnings statement or
statements of the Trust covering a period of at least 12 months beginning after
the Effective Date which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the Commission promulgated thereunder.
(d) The Transferor will furnish to you copies of the Registration
Statement (one of which will include all exhibits) and all amendments thereto up
to the Closing Date, the preliminary prospectus related to the Class A
Certificates, the Prospectus and all amendments
8
and supplements to such documents, in each case as soon as available and in such
quantities as you reasonably request.
(e) The Transferor will endeavor to qualify the Class A Certificates
for sale under the securities or blue sky laws of such jurisdictions as you
shall reasonably request and the determination of the eligibility for investment
of the Class A Certificates under the laws of such jurisdictions as you may
designate and will continue such qualifications in effect so long as required
for the distribution of the Class A Certificates; provided, however, that the
Transferor shall not be obligated to qualify to do business in any jurisdiction
where such qualification would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(f) For a period from the date of this Agreement until the
retirement of the Class A Certificates, the Transferor will furnish to you or
will cause the Servicer to furnish to you copies of each certificate and the
annual statements of compliance delivered to the Trustee pursuant to Article III
of the Pooling and Servicing Agreement and the annual independent certified
public accountant's servicing reports furnished to the Trustee pursuant to
Article III of the Pooling and Servicing Agreement, by first class mail as soon
as practicable after such certificates, statements and reports are furnished to
the Trustee.
(g) So long as any Class A Certificate is outstanding, the
Transferor will furnish to you or will cause the Servicer to furnish to you, by
first-class mail as soon as practicable (i) all documents concerning the Class A
Certificates distributed by the Transferor or the Servicer to
Certificateholders, (ii) any order of the Commission under the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act") applicable to
the Trust or to the Transferor as originator of the Trust, or pursuant to a
"no-action" letter obtained from the staff of the Commission by the Transferor
and affecting the Trust or the Transferor as originator of the Trust and (iii)
from time to time, such other information concerning the Trust as you may
reasonably request.
(h) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated for any reason, except a default
by you hereunder, the Transferor will pay all expenses as provided in Section 12
hereof.
(i) To the extent, if any, that any of the ratings provided with
respect to the Class A Certificates by Xxxxx'x Investors Service, Inc. or
Standard & Poor's Ratings Services are conditional upon the furnishing of
documents or the taking of any other actions by the Transferor, the Transferor
shall furnish such documents and take any such other actions.
7. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Class A Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Transferor and the Banks herein, to the accuracy of the statements of officers
of the Transferor and the Banks made pursuant to the provisions hereof, to the
performance by the Transferor and the Banks of their respective obligations
hereunder and to the following additional conditions precedent:
9
(a) On or prior to the date of this Agreement, the Underwriters
shall have received a letter, dated the date of this Agreement, and a letter on
the Closing Date, dated the Closing Date of KPMG Peat Marwick LLP, confirming
that they are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder, substantially in the
form heretofore agreed to and otherwise in form and in substance satisfactory to
you and your counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 6(a) of this Agreement;
and, prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Transferor, the
Banks or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Transferor or the Banks which, in your reasonable judgment, materially
impairs the investment quality of the Class A Certificates; (ii) any downgrading
in the rating of any securities of the Trust or any debt securities of
Commercial Credit Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating), (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of Commercial Credit Company or on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in your reasonable judgment, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Class
A Certificates.
(d) You shall have received an opinion, dated the Closing Date, of
X. Xxxxx XxXxxxx, Esq., General Counsel for Commercial Credit Company, to the
effect that:
(i) CC Credit Card Corporation (x) has been duly organized and
is validly existing as a corporation under the laws of the State of
Delaware, with power and authority to own its properties and conduct its
business as described in the Prospectus; (y) is duly qualified or has
registered as a foreign corporation to do business in all states, if any,
where the nature of its business requires such qualification or
registration and in which the failure to so qualify would have a material
adverse effect on CC Credit Card Corporation; and (z) has the power and
authority to acquire and own the Receivables and to carry out its duties
and obligations under this Agreement, and each of the Transaction
Documents and to transfer the Receivables and the Trust Assets to the
Trust;
10
(ii) CC Credit Card Corporation has the corporate power and
corporate authority to execute and deliver this Agreement, the Pooling and
Servicing Agreement, the Receivables Transfer Agreements and the Class A
Certificates and to consummate the transactions contemplated herein and
therein and to acquire and hold the Class B Certificates, the Class C
Interests and the Transferor's Certificate;
(iii) Each of the Pooling and Servicing Agreement, the
Receivables Transfer Agreements and the Class A Certificates has been duly
authorized, executed and delivered by CC Credit Card Corporation;
(iv) This Agreement has been duly authorized, executed and
delivered by CC Credit Card Corporation;
(v) The Registration Statement has become effective under the
Act and to the best of such counsel's knowledge no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened under the
Act; the Registration Statement, the Prospectus and each amendment thereof
or supplement thereto (other than the financial and statistical
information contained therein) on their respective effective dates or
dates of issuance appear on their face to be appropriately responsive in
all material respects to the applicable requirements of the Act and the
Rules and Regulations; such counsel has no reason to believe that either
the Registration Statement or the Prospectus, or any such amendment or
supplement, as of such respective dates, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Prospectus, as amended or supplemented as of the date of such
opinion, contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading (except that such counsel may express no opinion
as to (y) any financial statements, schedules or other financial data
included in the Registration Statement, the Prospectus, or any such
amendment or supplement, or (z) the exhibits to the Registration
Statement); and the summaries in the Registration Statement and Prospectus
of statutes, legal proceedings, contracts and other documents are accurate
and fairly present the information required to be shown;
(vi) No consent, approval, authorization or order of, or
filing of UCC financing statements with any Delaware, New York or federal
court or governmental agency or body having jurisdiction over CC Credit
Card Corporation is required for the consummation of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or the
Receivables Transfer Agreements, except for (v) filing of UCC financing
statements with respect to the transactions contemplated in the
Receivables Transfer Agreements and the Pooling and Servicing Agreement;
(w) such consents, approvals, authorizations, orders or filings as have
been obtained under the Act; (x) such consents, approvals, authorizations,
orders or filings as may be required under blue sky laws of any
jurisdiction; (y) such other consents, approvals, authorizations, orders
or filings as have been obtained; and (z) such consents, approvals,
authorizations,
11
orders or filings the failure of which to obtain or perform will not have
any material adverse affect upon CC Credit Card Corporation's consummation
of the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement or the Receivables Transfer Agreements.
(vii) The execution, delivery and performance by CC Credit
Card Corporation of this Agreement, the Pooling and Servicing Agreement
and the Receivables Transfer Agreements, the transfer of the Receivables
to the Trust, the issuance and sale of the Class A Certificates and the
consummation of any other of the transactions contemplated herein or in
the Pooling and Servicing Agreement or the Receivables Transfer Agreements
will not conflict with, result in a breach of or a violation of any of the
terms of, or constitute a default under, (x) the Certificate of
Incorporation or By-Laws of CC Credit Card Corporation or (y) any rule,
order, statute or regulation known to such counsel to be currently
applicable to CC Credit Card Corporation, or (z) any material agreement or
other material instrument, known to such counsel, to which CC Credit Card
Corporation is a party or by which it is bound; and
(viii) To such counsel's knowledge, there are no actions,
proceedings or investigations pending before any court, administrative
agency or other tribunal (w) asserting the invalidity of this Agreement,
the Pooling and Servicing Agreement, the Receivables Transfer Agreements
or the Class A Certificates, (x) seeking to prevent the issuance of the
Class A Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or the
Receivables Transfer Agreements, (y) which could reasonably be expected to
materially and adversely affect the performance by CC Credit Card
Corporation of its obligations under, or the validity or enforceability
of, this Agreement, the Pooling and Servicing Agreement, the Receivables
Transfer Agreements or the Class A Certificates or (z) seeking to affect
the federal income tax attributes of the Class A Certificates as described
in the Prospectus under the headings "Prospectus Summary -- Tax Status"
and "Federal Income Tax Consequences."
(e) You shall have received an opinion, dated the Closing Date, of
X. Xxxxx XxXxxxx, Esq., General Counsel for Commercial Credit Company, as
counsel for Travelers Bank, fsb and for Travelers Bank USA, to the effect that:
(i) Travelers Bank, fsb has been duly chartered and is validly existing as
a federal savings bank under the laws of the United States and Travelers
Bank USA has been duly chartered and is validly existing as a Delaware
state chartered Bank under the laws of the State of Delaware, and (x) each
Bank has the power and authority to own its properties and conduct its
business as described in the Prospectus; (y) neither is required to
qualify, nor to register as a foreign corporation, in any state in order
to conduct its business, except those states where it has so qualified or
registered or where the failure to so qualify or register would not have a
material adverse effect upon the Class A Certificateholders; and (z) each
has the power and authority to own the Accounts and to sell, assign,
transfer and grant security rights in the Receivables;
12
(ii) Each Bank has the power and authority to execute and deliver this
Agreement, and the Receivables Transfer Agreement to which it is a party
and Travelers Bank fsb has the power and authority to execute and deliver
the Pooling and Servicing Agreement and each Bank has the power and
authority to consummate the transactions contemplated by those documents
to which it is a party;
(iii) Each of this Agreement, and the respective Receivables Transfer
Agreements has been duly authorized, executed and delivered by the Banks
and the Pooling and Servicing Agreement has been duly authorized, executed
and delivered by Travelers Bank fsb;
(iv) No consent, approval, authorization or order of, or filing of UCC
financing statements with any Delaware, New York or federal court or
governmental agency or body having jurisdiction over the Travelers Bank,
fsb or Travelers Bank USA is required for the consummation of the
transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or the Receivables Transfer Agreements, except for (v) filing of
UCC financing statements with respect to the transactions contemplated in
the Receivables Transfer Agreements; (w) such consents, approvals,
authorizations, orders or filings as have been obtained under the Act; (x)
such consents, approvals, authorizations, orders or filings as may be
required under blue sky laws of any jurisdiction; (y) such other consents,
approvals, authorizations, orders or filings as have been obtained; and
(z) such consents, approvals, authorizations, orders or filings the
failure of which to obtain or perform will not have any material adverse
affect upon the respective Bank's consummation of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or the
Receivables Transfer Agreements.
(v) The execution, delivery and performance by Travelers Bank, fsb and by
Travelers Bank USA of this Agreement, the respective Receivables Transfer
Agreements, and, with respect to Travelers Bank, fsb, the Pooling and
Servicing Agreement, the transfer of the Receivables to the Transferor,
the issuance and sale of the Class A Certificates and the consummation of
any other of the transactions contemplated herein or in the Pooling and
Servicing Agreement or the Receivables Transfer Agreements will not
conflict with, result in a breach of or a violation of any of the terms
of, or constitute a default under, (x) the respective certificate of
incorporation or charter or by-laws of the Banks or (y) any rule, order,
statute or regulation known to such counsel to be currently applicable to
the respective Bank, or (z) any material agreement or other material
instrument, known to such counsel, to which the respective Bank is a party
or by which it is bound; and
(vi) To such counsel's knowledge, there are no actions, proceedings or
investigations pending before any court, administrative agency or other
tribunal (w) asserting the invalidity of this Agreement, the Receivables
Transfer Agreements or the Pooling and Servicing Agreement or the Class A
Certificates, (x) seeking to prevent the issuance of the Class A
Certificates or the consummation of any of the transactions contemplated
by this Agreement, the Receivables Transfer Agreements or the Pooling and
Servicing Agreement, (y) which could reasonably be expected to materially
and adversely affect the
13
performance by either of the Banks of its obligations under, or the
validity or enforceability of, this Agreement, the Receivables Transfer
Agreements or the Pooling and Servicing Agreement or the Class A
Certificates or (z) seeking to affect the federal income tax attributes of
the Class A Certificates as described in the Prospectus under the headings
"Summary of Terms -- Tax Status" and "Federal Income Tax Consequences."
(f) You shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
special counsel for the Transferor, or a letter to the effect that you may rely
on those provisions of their opinions to Xxxxx'x Investors Service, Inc. and
Standard & Poor's Ratings Services with respect to certain matters relating to
the transfer of the Receivables to the Transferor and to the Trust, with respect
to the perfection and priority of the Transferor's ownership interest in the
Receivables and to the perfection and priority of the Trust's interest in the
Receivables, and shall provide that the characterization of the Trust for
federal income tax purposes will be determinative of the character of the Trust
under the laws of the State of Delaware concerning any tax imposed or measured
by income, the Pooling and Servicing Agreement, including the allocation of
Collections provisions thereof, constitutes the legal, valid and binding
agreement of the Transferor and of Travelers Bank, fsb, enforceable against the
Transferor and Travelers Bank, fsb, in accordance with its terms, the Class A
Certificates are legally issued, fully paid and nonassessable and entitled to
the benefits of the Pooling and Servicing Agreement, the Receivables Transfer
Agreements are the legal, valid and binding agreements of the Transferor and the
respective Banks parties thereto, enforceable against the Transferor and the
Banks party thereto in accordance with their respective terms and with respect
to other related matters. In delivering such opinions, such counsel shall be
permitted to assume the due authorization, execution and delivery of documents
by the Banks and the due execution and delivery of documents by the Transferor.
(g) You shall have received an opinion dated the closing date, of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to the Transferor, to the
effect that
(i) The statements in the Base Prospectus under the headings
"Certain Legal Aspects of the Receivables," "ERISA Considerations" and
"Federal Income Tax Consequences" and the summaries thereof under the
headings "Prospectus Summary -- Tax Status" in the Base Prospectus and
"Summary of Terms -- Tax Status" and "Federal Income Tax Consequences" in
the Prospectus Supplement, to the extent they constitute matters of law or
legal conclusions with respect thereto, have been reviewed by such counsel
and are correct in all material respects.
(ii) This Agreement, the Pooling and Servicing Agreement, the
Receivables Transfer Agreements and the Class A Certificates conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(iii) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and the
Trust is not now, and immediately following the sale of the Class A
Certificates pursuant to this Agreement will not be, required to be
registered under the Investment Company Act of 1940, as amended.
14
(iv) For federal income tax purposes the Class A Certificates
will properly be characterized as indebtedness and the Trust will not be
an association (or publicly traded partnership) taxable as a corporation;
such opinion may, however, provide that although the foregoing represents
the firm's views regarding the characteristics of the Trust and the Class
A Certificates for federal income tax purposes attention is directed to
the discussion of alternative characterizations and risks discussed in the
Base Prospectus under the heading "Federal Income Tax Consequences."
(h) You shall have received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP,
special counsel for the Underwriters, (i) an opinion, dated the Closing Date, in
which such counsel shall state that, while they are not passing upon and do not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and
although they are not independently verifying the accuracy, completeness or
fairness of such statements, nothing has come to such counsel's attention to
cause such counsel to believe that the Registration Statement (excluding any
exhibits filed therewith), at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or
that the Prospectus, as of the Closing Date, contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel shall not be required to and will not make any comment with
respect to the financial statements, supporting schedules and other financial or
statistical information contained in the Registration Statement or the
Prospectus) and (ii) such other opinion or opinions, dated the Closing Date,
with respect to such matters relating to this transaction as you may require,
and, in each case, the Transferor and the Banks shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(i) You shall have received a certificate from CC Credit Card
Corporation, dated the Closing Date, of two officers of CC Credit Card
Corporation, including at least one vice president or more senior officer or the
treasurer, in which certificate such officers each to the best of such officer's
knowledge after reasonable investigation, shall state that (u) the
representations and warranties of CC Credit Card Corporation in this Agreement
are true and correct in all material respects on and as of the Closing Date, (v)
CC Credit Card Corporation has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, (w) the representations and warranties of CC Credit Card Company,
as Transferor, in the Pooling and Servicing Agreement are true and correct as of
the dates specified in the Pooling and Servicing Agreement, (x) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are threatened by the
Commission, (y) nothing has come to such officer's attention that would lead
such officer to believe that the Registration Statement or the Prospectus, and
any amendment or supplement thereto, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (z) subsequent
to the date of the Prospectus, there has been no
15
material adverse change in the financial position or results of operation of CC
Credit Card Corporation's business except as set forth in or contemplated by the
Prospectus.
(j) You shall have received a certificate from Travelers Bank, fsb,
dated the Closing Date, of two vice presidents or more senior officers of
Travelers Bank, fsb (which shall include the secretary and treasurer of
Travelers Bank, fsb) in which such officers, each to the best of such officer's
knowledge after reasonable investigation, shall state that (u) the
representations and warranties of Travelers Bank, fsb in this Agreement are true
and correct in all material respects on and as of the Closing Date, (v)
Travelers Bank, fsb has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, (w) the representations and warranties of Travelers Bank, fsb, as
Servicer, in the Pooling and Servicing Agreement are true and correct as of the
dates specified in the Pooling and Servicing Agreement, (x) nothing has come to
such officer's attention that would lead such officer to believe that the
Registration Statement or the Prospectus, and any amendment or supplement
thereto, as of its date and as of the Closing Date, contained, with respect to
Travelers Bank, fsb or its business or the Receivables transferred or to be
transferred by Travelers Bank, fsb, an untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (y) subsequent to the date of the Prospectus, there has been no
material adverse change in the financial position or results of operation of
Travelers Bank, fsb's credit card business except as set forth in or
contemplated by the Prospectus.
(k) You shall have received a certificate from Travelers Bank USA,
dated the Closing Date, of two vice presidents or more senior officers of
Travelers Bank USA (which shall include the secretary and treasurer of Travelers
Bank, USA) in which such officers, each to the best of such officer's knowledge
after reasonable investigation, shall state that (u) the representations and
warranties of Travelers Bank USA in this Agreement are true and correct in all
material respects on and as of the Closing Date, (v) Travelers Bank USA has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (w) nothing
has come to such officer's attention that would lead such officer to believe
that the Registration Statement or the Prospectus, and any amendment or
supplement thereto, as of its date and as of the Closing Date, contained with
respect to Travelers Bank USA or its business or the Receivables transferred or
to be transferred by Travelers Bank USA, an untrue statement of a material fact
or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (x) subsequent to the date of the Prospectus, there has been no
material adverse change in the financial position or results of operation of
Travelers Bank USA's credit card business except as set forth in or contemplated
by the Prospectus.
(l) You shall have received an opinion of Xxxxxx Xxxxxx & Xxxxxx,
counsel to the Trustee, addressed to you, dated the Closing Date, satisfactory
in form and substance to you and your counsel and substantially to the effect
that:
(i) The Trustee is a banking corporation organized and validly
existing and in good standing under the laws of the State of New York and
is authorized
16
and qualified to accept the trusts imposed by the Pooling and Servicing
Agreement and to act as Trustee under the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes a legal,
valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to the enforcement of creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) The Class A Certificates have been duly authenticated
and delivered by the Trustee;
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of the terms
thereof does not conflict with or result in a violation of (y) any law or
regulation of the United States of America or the State of New York
governing the banking or trust powers of the Trustee, or (z) the
Organization Certificate or By-Laws of the Trustee; and
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers of
the Trustee is required in connection with the execution and delivery by
the Trustee of the Pooling and Servicing Agreement or the performance by
the Trustee thereunder.
(m) You shall have received evidence satisfactory to you that the
Class A Certificates shall be rated Aaa by Xxxxx'x Investors Service, Inc.
("Moody's") and AAA by Standard & Poor's Ratings Services ("S&P") and neither
Moody's nor S&P shall have placed the Class A Certificates under surveillance or
review with possible negative implications.
(n) The Class B Certificates and the Class C Interests shall have
been duly issued and registered to the Transferor.
(o) The Transferor Certificate shall have been duly issued and
delivered to the Transferor.
(p) The Receivables shall have been transferred to the Trust
pursuant to the Pooling and Servicing Agreement and in the amount described in
the Prospectus.
The Transferor will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any condition specified in this Section 7 shall not have been
fulfilled, this Agreement may be terminated by the Underwriters by notice to the
Transferor on or prior to the
17
Closing Date and such termination shall be without liability of any party to any
other party except as provided in Section 12 hereof.
8. Indemnification and Contribution. (a) The Transferor and the Banks
jointly and severally, will indemnify and hold harmless the Underwriters, each
of their directors, any person who controls either of the Underwriters within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, the "Indemnified Underwriter Parties") against any losses,
claims, damages or liabilities, joint or several, to which any of the
Indemnified Underwriter Parties may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, the preliminary prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Indemnified
Underwriter Parties for any legal or other expenses reasonably incurred by any
of the Indemnified Underwriter Parties in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the foregoing indemnity with respect to the
preliminary prospectus shall not inure to the benefit of any of the Indemnified
Underwriter Parties (or to the benefit of any person controlling such
Indemnified Underwriter Party) from whom the person asserting any such losses,
claims, damages or liabilities purchased Class A Certificates if such untrue
statement or omission or alleged untrue statement or omission made in the
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Transferor shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Class A Certificates to
such person; provided further, however, that neither the Transferor or the Banks
will be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Transferor by the Underwriters specifically for use therein.
(b) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Transferor and the Banks, each of their directors, the
Transferor's Officers who signed the Registration Statement and any person who
controls the Transferor or either Bank within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (collectively, the "Indemnified Transferor
Parties") against any losses, claims, damages or liabilities to any of the
Indemnified Transferor Parties which may become subject, under the Act or
otherwise and will reimburse any legal or other expenses reasonably incurred by
the Indemnified Transferor Parties in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to
18
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Transferor or the Banks by the Underwriters
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Indemnified Transferor Parties in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party 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
otherwise than under subsection (a) or (b) above, except to the extent the
indemnifying party is prejudiced thereby. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, not be liable to such indemnified party under this section for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnifying party has agreed
in writing to pay such fees and expenses, (ii) the indemnifying party has failed
to assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
indemnified party and the indemnifying party and such indemnified party shall
have been advised by its counsel that representation of such indemnified party
and the indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying parties shall not have
the right to assume the defense of such action, suit or proceeding on behalf of
such indemnified party). It is understood, however, that the indemnifying party
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
indemnified parties not having actual or potential differing interest with you
or among themselves, which firm shall be designated in writing by the
indemnified parties.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Transferor and the Banks on the one hand and the
19
Underwriters on the other from the offering of the Class A 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 and the Banks on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Transferor and the Banks
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) of the Class A Certificates received by the Transferor and the Banks
bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Class A Certificates. 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 or the Banks
or the Underwriters and the party's relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission with respect to the Class A Certificates. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subdivision (d), the Underwriters shall not be required to contribute any amount
in excess of the amount by which the total price at which the Class A
Certificates underwritten by the Underwriters and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriters
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission with respect to the Class A
Certificates. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Transferor and the Banks under this
Section shall be in addition to any liability which the Transferor and the Banks
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the Act; and
the obligations of the Underwriters under this section shall be in addition to
any liability which the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Transferor, to each
officer of the Transferor who has signed the Registration Statement and to each
person, if any, who controls the Transferor within the meaning of the Act.
9. Survival of Certain Representations and Obligations; Third Party
Beneficiaries. The respective indemnities, agreements, representations,
warranties and other statements of the Transferor and of the Banks or their
officers 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 thereof, made by or on behalf of the Underwriters,
the Transferor , the Banks or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Class A Certificates. If this Agreement is terminated or if for any
reason other than default by the Underwriters the purchase of the Class A
Certificates by the Underwriters is not consummated, the Transferor shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
6 and the respective obligations of the Transferor, the Banks and the
Underwriters pursuant to Section 8 shall remain in effect. If for any reason the
purchase of the Class A Certificates by the Underwriters is not consummated, the
Transferor will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel and reasonable costs and
expenses of printing) reasonably incurred by them in connection with the
offering of the Class A Certificates. This Agreement has been and is made solely
for the benefit of the Underwriters, the Underwriters'
20
respective directors and controlling persons referred to in Section 8, the
Transferor, the Transferor's directors and officers, the Banks and the
controlling persons referred to in Section 8 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of the Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any to the certificates in his
status as such purchaser.
10. Computational Materials and ABS Term Sheets. (a) Each Underwriter
agrees to provide to the Transferor, not less than two Business Days prior to
the date on which the Transferor is required to file the Prospectus Supplement
pursuant to Rule 424(b), any information used by it (in such written or
electronic format as required by the Transferor) with respect to the offering of
the Class A Certificates that constitutes "Computational Materials," as defined
in the Commission's No-Action Letter, dated May 20, 1994, addressed to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation (as made generally applicable to registrants,
issuers and underwriters by the Commission's response to the request of the
Public Securities Association dated May 27, 1994 (the "Xxxxxx/PSA Letter")),
that is not contained in the Prospectus or the preliminary prospectus (without
taking into account information incorporated therein by reference).
(b) Each Underwriter agrees to provide to the Transferor, not less
than two Business Days prior to the date on which the Transferor is required to
file the Prospectus Supplement pursuant to Rule 424(b), any information used by
it (in such written or electronic format as required by the Transferor) with
respect to the offering of the Class A Certificates that constitutes "ABS Term
Sheets," as defined in the Commission's No-Action Letter, dated February 17,
1995, addressed to the Public Securities Association, that is not contained in
the Prospectus or the preliminary prospectus (without taking into account
information incorporated therein by reference).
(c) Each Underwriter severally agrees, assuming all information
provided by the Transferor and the Banks is accurate and complete in all
material respects, to indemnify and hold harmless the Transferor and the Banks,
each of the officers and directors of the Transferor and the Banks and each
person who controls the Transferor or a Bank within the meaning of Section 15 of
the Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of a material fact contained
in the Computational Materials or ABS Term Sheets, if any, provided by the
Underwriter, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Class A Certificates underwritten
by the Underwriters and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue
21
or alleged untrue statement or omission or alleged omission with respect to the
Class A Certificates. The obligations of the Underwriter under this Section
10(c) shall be in addition to any liability that the Underwriter may otherwise
have.
The procedures set forth in Sections 8(c) and 8(d) shall be equally
applicable to this Section 10(c).
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to:
Salomon Brothers Inc, Seven World Trade Center, New York, NY 10048, Attention:
Xxx Xxxxx.
12. Expenses. The Transferor agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder (i) the preparation, printing (or reproduction), and
filing with the Commission of the registration statement (including exhibits
thereto), each preliminary prospectus, the Prospectus, each amendment or
supplement to any of them, this Agreement, the Receivables Transfer Agreements,
and the Pooling and Servicing Agreement; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the registration statement, each preliminary
prospectus, the Prospectus, the exhibits thereto, the underwriting documents,
and all amendments or supplements to any of them, as may be reasonably requested
for use in connection with the offering and sale of the Class A Certificates;
(iii) the preparation, printing (or reproduction), execution and delivery of the
Transaction Documents and the preparation, printing, authentication, issuance
and delivery of the Class A Certificates; (iv) the printing (or reproduction)
and delivery of this Agreement, the preliminary and supplemental blue sky
memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Class A Certificates; (v) the
registration of the Class A Certificates under the Securities Act; (vi) the
registration or qualification of the Class A Certificates for offer and sale
under the securities or blue sky laws of the several states as provided in
Section 6(e) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental blue sky
memoranda and such registration and qualification); (vii) the fees and expenses
of the Trustee; (viii) the fees and expenses associated with obtaining ratings
for the Class A Certificates from national recognized statistical rating
organizations; (ix) the transportation and other expenses incurred by or on
behalf of the Transferor's and the Banks' representatives in connection with
presentations to prospective purchasers of the Class A Certificates; and (x) the
fees and expenses of the Transferor's and the Banks' accountants and the fees
and expenses of counsel (including local and special counsel) for the
Transferor.
13. Default of an Underwriter. If any one or more of the Underwriters
shall fail or refuse to purchase Class A Certificates which it or they are
obligated to purchase hereunder, and the aggregate principal amount of Class A
Certificates which such defaulting Underwriter or Underwriters are obligated but
fail or refuse to purchase is not more than one-tenth of the aggregate principal
amount of the Class A Certificates, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the principal amount of Class A
22
Certificates set forth opposite its name on Schedule A hereto bears to the
aggregate principal amount of Class A Certificates set forth opposite the names
of all non-defaulting Underwriters or in such other proportion as you may
specify in accordance with any applicable agreement among underwriters, to
purchase the Class A Certificates which such defaulting Underwriter or
Underwriters are obligated, but failed or refused to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase Class A
Certificates and the aggregate principal amount of Class A Certificates with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Class A Certificates and arrangements satisfactory to
you and the Transferor for the purchase of such Class A Certificates by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Transferor are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Transferor. In any such case which does not result in termination of this
Agreement, either you or the Transferor shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes in this
Agreement, any party not listed in Schedule A hereto who, with your approval and
the approval of the Transferor, purchases Class A Certificates which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 13 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
14. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Transferor by notice to the Transferor, if prior to the
Closing Date: (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York or Delaware shall have been declared by either
federal or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in your
judgment, impracticable or inadvisable to commence or continue the offering of
the Class A Certificates on the terms set forth on the cover page of the
Prospectus or to enforce contracts for the release of the Class A Certificates
by the Underwriters. Notice of such termination may be given to the Transferor
by telegram, telecopy or telephone and shall be subsequently confirmed by
letter.
15. Information Furnished by the Underwriters. The statements set forth in
the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements under the caption "Underwriting" in the
preliminary prospectus and in the Prospectus (except the last two paragraphs
thereof), constitute the only information furnished by or on behalf of the
Underwriters to the Transferor for use in the preliminary prospectus or in the
Prospectus as such information is referred to in Sections 2(n), 3(l) and 8(a)
hereof.
23
16. Nonpetition Covenant. Each Underwriter agrees that it will not, prior
to the date which is one year and one day after the termination of the Pooling
and Servicing Agreement with respect to the Trust or the Transferor, acquiesce,
petition or otherwise invoke or cause the Trust or the Transferor to invoke the
process of any Governmental Authority for the purpose of commencing or
sustaining a case against the Trust or the Transferor under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or the Transferor or any substantial part of its property or ordering the
winding-up or liquidation of the affairs of the Trust or the Transferor.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
18. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
24
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Transferor whereupon this letter and your
acceptance shall become a binding agreement among the Transferor, the Banks and
the Underwriters.
Very truly yours,
CC CREDIT CARD CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer and Director
The foregoing Agreement is TRAVELERS BANK & TRUST, fsb
hereby confirmed and accepted
as of the date hereof
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXXXXX INC,
as Representative of the
Underwriters set forth herein
THE TRAVELERS BANK USA
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- -----------------------------
Name: Xxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: Associate Title: Vice President
[Underwriting Agreement Signature Page]
SCHEDULE A
Class A Certificates
Principal Amount of
Underwriters Class A Certificates
------------ --------------------
Salomon Brothers Inc $205,000,000
Chase Securities Inc. $ 22,500,000
