$__________________
FIRST BANK CORPORATE CARD MASTER TRUST
$_____ Class A __% Asset Backed Certificates, Series 1997-1
$_____ Class B __% Asset Backed Certificates, Series 0000-0
XXXXX XXXX XX XXXXX XXXXXX (NATIONAL ASSOCIATION)
(Transferor)
FBS CARD SERVICES, INC.
(Servicer)
UNDERWRITING AGREEMENT
January __, 1997
X.X. Xxxxxx Securities Inc.
As Representative of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
First Bank of South Dakota (National Association), a national
banking association (the "Transferor"), proposes to sell, transfer and convey
receivables (the "Receivables") generated from time to time from certain VISA(R)
charge card accounts and other rights to First Bank Corporate Card Master Trust
(the "Trust"), and the Transferor proposes to cause the Trust to issue to the
Transferor $____________ principal amount of its Class A __% Asset Backed
Certificates, Series 1997-1 (the "Class A Certificates") and $____________
principal amount of its Class B __% Asset Backed Certificates, Series 1997-1
(the "Class B Certificates," and together with the Class A Certificates, the
"Certificates"), which the Transferor proposes to sell to the several
Underwriters listed in Schedule I hereto (the "Underwriters"), for whom you are
acting as representative (the "Representative"), pursuant to the terms hereof.
The Receivables will be transferred from the Transferor to the Trust pursuant to
(a) the Pooling and Servicing Agreement among the Transferor, FBS Card Services,
Inc., as servicer (the "Servicer"), and Citibank, N.A., as trustee (the
"Trustee"), to
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be dated as of January __, 1997 (the "Pooling and Servicing Agreement") and (b)
the Series 1997-1 Supplement to the Pooling and Servicing Agreement, to be dated
as of January __, 1997 (the "Supplement"), among the Transferor, the Servicer
and the Trustee. Each Certificate represents an undivided interest in the Trust.
The Trust will be formed for the purpose of holding the Receivables and
issuing the Certificates and other similar securities. The property of the Trust
will include Receivables generated from time to time in a portfolio of
designated VISA(R) charge card accounts originated under the Transferor's
Corporate Card or Purchasing Card programs, all monies due in payment of the
Receivables, all proceeds of the Receivables, any Enhancement (as defined in the
Prospectus), all monies on deposit in certain bank accounts of the Trust and the
right to receive certain amounts of Net Interchange (as defined in the
Prospectus) allocable to the Certificates. Each Certificate will represent the
right to receive a portion of the collections and certain other amounts with
respect to the Receivables. Such collections and other amounts will be used to
pay interest and principal due on such Certificate on the applicable payment
date. The Class A Certificates will also have the benefits of certain excess
collections, and the subordination of the Class B Certificates and the
Collateral Investor Interest. The Class B Certificates will also have the
benefits of certain excess collections not needed to cover shortfalls in respect
of the Class A Certificates and the subordination of the Collateral Investor
Interest (as defined in the Prospectus) not used for the benefit of the Class A
Certificates.
The Transferor initially will own the remaining undivided interest in the
Trust not represented by the Certificates, by the Collateral Investor Interest,
by other investor certificates issued by the Trust and by the interests of
Enhancement providers, if any. Series 1997-1 is the first Series issued by the
Trust. The Transferor may from time to time offer and sell other Series that
evidence undivided interests in certain assets of the Trust, which may have
terms significantly different from the Certificates.
The Transferor 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 "Securities Act"), a registration
statement on Form S-3 (No. 333-1837), including a prospectus, relating to the
Certificates. The registration statement as amended at the time when it shall
become effective, or, if a post-effective amendment is filed with respect
thereto, as amended by such post-effective amendment at the time of its
effectiveness, including in each case information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of
Securities is referred to in this Agreement as the "Prospectus". Any reference
in this Agreement to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference
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therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such preliminary
prospectus or the Prospectus, as the case may be, and any reference to "amend"
"amendment" or "supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
When used in this Agreement, "Basic Documents" shall mean the Pooling and
Servicing Agreement, the Supplement, the Certificates, and the Loan Agreement,
and any other contract, agreement or instrument which is or is to be entered
into by the Transferor on the Closing Date or otherwise in connection with any
of the foregoing or this Agreement. To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Prospectus.
The Transferor and the Servicer hereby agree with the Underwriters as
follows:
1. Purchase and Sale. The Transferor agrees to sell the Certificates to
the several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Transferor the respective principal amount of Class A Certificates and
Class B Certificates, respectively, set forth opposite such Underwriter's name
in Schedule I hereto at a price equal to ______% of their principal amount for
the Class A Certificates and _____ % of their principal amount for the Class B
Certificates, in each case plus accrued interest, if any, on the principal
amount thereof at the Class A Certificate Rate and the Class B Certificate Rate,
respectively, from ______________, 1997 to the date of payment and delivery.
2. Offering. The Transferor understands that the Underwriters intend (i)
to make a public offering of their respective portions of the Certificates as
soon after the parties hereto have executed and delivered this Agreement as in
the judgment of the Representative is advisable and (ii) initially to offer the
Certificates upon the terms set forth in the Prospectus.
3. Delivery and Payment. Payment for the Certificates shall be made by
wire transfer in immediately available funds to the account specified by the
Transferor (which account shall be specified to the Representative no later than
noon the Business Day (as defined below) prior to the Closing Date (as defined
below)), at 10:00 A.M., New York City time on January , 1997, or at such other
time on the same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Transferor may agree upon in writing.
The time and date of such payment 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.
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Payment for the Certificates shall be made against delivery to the nominee
of The Depository Trust Company for the account of the Representative for the
respective accounts of the several Underwriters of one or more global
certificates (the "Global Certificate") representing the Class A Certificates
and the Class B Certificates, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Certificates duly paid by the
Transferor. The Global Certificates will be made available for inspection by the
Representative at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New York City
time, on the Business Day prior to the Closing Date.
4. Representations and Warranties of the Transferor. The Transferor
represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and did not 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, in the light of the
circumstances under which they were made, not misleading; provided that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Transferor in writing by such
Underwriter through the Representative expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act or if a post-effective amendment is
required to be filed under the Securities Act, such post-effective
amendment has been declared effective by the Commission under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Transferor, threatened by
the Commission; and the Registration Statement and Prospectus (as amended
or supplemented if the Transferor shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment
or supplement thereto, contain 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 the Prospectus, as
amended or supplemented, if applicable, at the Closing Date will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; except that
the
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foregoing representations and warranties shall not apply to statements or
omissions in the Registration Statement or the Prospectus made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Transferor in writing by such Underwriter through the
Representative expressly for use therein;
(c) 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 general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Transferor as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(d) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act,
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(e) the Transferor has been duly organized, is validly existing as a
national banking association in good standing under the laws of the United
States and has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on
the transactions contemplated herein or in the Basic Documents;
(f) this Agreement has been duly authorized, executed and delivered
by the Transferor;
(g) the Certificates have been duly and validly authorized and, when
such Certificates are duly and validly executed and authenticated by the
Trustee and delivered in accordance with the Pooling and Servicing
Agreement and delivered and paid for pursuant to this Agreement, will be
validly issued and outstanding and
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entitled to the benefits and security afforded by the Pooling and
Servicing Agreement; each of the Basic Documents has been duly authorized
by the Transferor and, when executed and delivered by the Transferor and
the other parties thereto, each of the Basic Documents will constitute a
legal, valid and binding obligation of the Transferor enforceable against
the Transferor in accordance with its terms, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors rights generally and to general equitable principles; and the
Certificates and the Basic Documents each will conform to the descriptions
thereof in the Prospectus;
(h) the Transferor is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, its articles
of association or bylaws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Transferor is a
party or by which it or any of its properties is bound, except for
violations and defaults which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein or
in the Basic Documents; the issue and sale of the Certificates and the
performance by the Transferor of all of the provisions of its obligations
under the Securities Act, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Transferor is
a party or by which the Transferor is bound or to which any of the
property or assets of the Transferor is subject, nor will any such action
result in any violation of the provisions of the articles of association
or bylaws of the Transferor or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Transferor, or any of its properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Certificates or the consummation by
the Transferor of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, and as may be required under state securities or Blue Sky
Laws in connection with the purchase and distribution of the Certificates
by the Underwriters and the filing of any financing statements required to
perfect the Trust's interest in the Receivables and the Transferor has
full power and authority to sell, and establish the Trust that will issue,
the Certificates as contemplated by this Agreement and to enter into this
Agreement, the Loan Agreement, the Pooling and Servicing Agreement and the
Supplement;
(i) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending, or to the
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knowledge of the Transferor, threatened against or affecting the
Transferor or its properties, or to which the Transferor is or may be a
party or to which the Transferor or any property of the Transferor is or
may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated
by this Agreement or any of the Basic Documents, (iii) that may adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates, (iv) that could materially and adversely
affect the Transferor's performance of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic
Documents, (v) could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholder's equity
or results of operations of the Transferor or (vi) which could
individually or in the aggregate reasonably be expected to have a material
adverse effect on the interests of the holders of the Certificates or the
marketability of the Certificates; and there are no statutes, regulations,
contracts or other documents that are required to be filed as an exhibit
to the Registration Statement or required to be described in or
incorporated by reference into the Registration Statement or the
Prospectus which are not filed, described or incorporated by reference as
required;
(j) the computer tape with respect to the Receivables to be sold to
the Trust created as of the Cutoff Date and made available to the
Underwriters by the Transferor was complete and accurate in all material
respects as of the date hereof; the Transferor has good and marketable
title to the Receivables free and clear of all liens, encumbrances and
defects, except such as are described or referred to in to Prospectus, and
by assignment and delivery of each of the Receivables to the Trust as of
the Closing Date, the Transferor will transfer title in the Receivables to
the Trust, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, change or encumbrance;
(k) the representations and warranties of the Transferor contained
in the Basic Documents are true and correct in all material respects;
(l) Ernst & Young LLP are independent public accountants with
respect to the Transferor within the meaning of the Securities Act;
(m) the Transferor 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 own the
Receivables and to perform its obligations under this Agreement and the
Basic
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Documents, and the Transferor has not received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization; and
the Transferor is in compliance with all laws and regulations necessary
for the performance of its obligations under this Agreement and the Basic
Documents;
(n) the Transferor has delivered to you complete and correct copies
of publicly available portions of the Consolidated Reports of Condition
and Income of the Transferor for the three most recent years for which
such reports are available, as submitted to the Comptroller of the
Currency; except as set forth in or contemplated in the Registration
Statement and the Prospectus, there has been no material adverse change in
the condition (financial or otherwise) of the Transferor since the last
such report;
5. Representations and Warranties of the Servicer. The Servicer represents
and warrants to each Underwriter that:
(a) the Servicer has been duly incorporated and is validly existing
as a corporation in good standing under the laws of State of Minnesota and
has full corporate power, authority and legal right to own its properties
and conduct its charge card servicing business as such properties are
presently owned and as such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement, the
Pooling and Servicing Agreement, the Supplement and the Loan Agreement;
(b) the Servicer is not required to qualify nor register as a
foreign corporation in any state in order to service the Receivables as
required by this Agreement and has obtained all licenses and approvals
necessary in order to so service the Receivables as required under federal
and Minnesota law. If the Servicer shall be required by any applicable law
or statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Servicer, or any of its
properties to so qualify or register or obtain such license or approval,
then it shall do so;
(c) the execution, delivery, and performance of this Agreement, the
Pooling and Servicing Agreement, the Supplement and the Loan Agreement
have been duly authorized by the Servicer by all necessary corporate
action on the part of the Servicer and this Agreement will remain, from
the time of its execution, an official record of the Servicer;
(d) this Agreement has been duly authorized, executed and delivered
by the Servicer;
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(e) the Pooling and Servicing Agreement, the Supplement and the Loan
Agreement constitute legal, valid and binding obligations of the Servicer,
enforceable in accordance with their terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect, affecting
the enforcement of creditors' rights in general or by general equity
principles;
(f) the execution and delivery of this Agreement, the Pooling and
Servicing Agreement, the Supplement and the Loan Agreement by the
Servicer, and the performance of the transactions contemplated by this
Agreement or the Basic Documents and the fulfillment of the terms hereof
or thereof applicable to the Servicer, will not conflict with, violate,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, any applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Servicer, or any of its properties or any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a
party or by which it is bound;
(g) there are no proceedings or investigations pending or, to the
best knowledge of the Servicer, threatened against the Servicer before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Basic Documents,
seeking any determination or ruling that, in the reasonable judgment of
the Servicer, would materially and adversely affect the performance by the
Servicer of its obligations under this Agreement or the Basic Documents to
which the Servicer is a party, or seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of
this Agreement or the Basic Documents to which the Servicer is a party;
and
(h) the Servicer shall duly satisfy all obligations on its part to
be fulfilled under or in connection with each Receivable and the related
Account, will maintain in effect all qualifications required under any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Servicer, or any
of its properties in order to service properly each Receivable and the
related Account and will comply in all material respects with any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Servicer, or any
of its properties, in connection with servicing each Receivable and the
related Account the failure to comply with which would have a material
adverse effect on the Certificateholders or any Enhancement Provider (as
defined in the Pooling and Servicing Agreement).
6. Covenants and Agreements. The Transferor covenants and agrees with each
of
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the several Underwriters as follows:
(a) if required, to file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A under the
Securities Act, and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 a.m., New York City time, on
the Business Day next succeeding the date of this Agreement in such
quantities as the Representative may reasonably request;
(b) to deliver, at the expense of the Transferor, to the
Representative, two signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein, and to each
other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits but including the documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto and documents incorporated by reference therein)
as the Representative may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Representative
a copy of the proposed amendment or supplement for review and not to file
any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) to advise the Representative promptly, and to confirm such
advice in writing, (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has been
filed or becomes effective, (iii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the
Representative with copies thereof, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (vi) of the occurrence of
any event, within the period referenced in paragraph (e) below, 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 in order to make the statements therein, in light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (vii) of the receipt by the Transferor of any notification
with respect to any suspension of the qualification of the Certificates
for offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and to use its best
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efforts to prevent the issuance of any such stop order, or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any order suspending such qualification of the
Certificates, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Certificates as in the opinion of counsel for the
Underwriters a prospectus relating to the Certificates is required by law
to be delivered in connection with sales by an Underwriter or a dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Transferor, to the Underwriters and to the dealers
(whose names and addresses the Representative will furnish to the
Transferor) to which Certificates may have been sold by the Representative
on behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Certificates for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and to continue such qualification
in effect so long as reasonably required for distribution of the
Certificates; provided that the Transferor shall not be required to file a
general consent to service of process in any jurisdiction;
(g) to make generally available to the holders of the Certificates
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
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Certificates are outstanding, to furnish to the
Representative (i) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's
servicing reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement by first class mail as soon as practicable after such
statements and reports are furnished to the Trustee, (ii) copies of each
amendment to any of the Basic Documents, (iii) on each Determination Date
or as soon thereafter as practicable, notice by telex or facsimile to the
Representative of the "series factor" as of the related Record Date, (iv)
copies of all reports or other
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communications (financial or other) furnished to holders of the
Certificates, and copies of any reports and financial statements furnished
to or filed with the Commission, any governmental or regulatory authority
or any national securities exchange, and (v) from time to time such other
information concerning the Trust or the Transferor as the Representative
may reasonably request;
(i) during the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any securities which are substantially similar to the
Certificates;
(j) to the extent, if any, that the ratings provided with respect to
the Certificates by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the
Transferor, the Transferor shall use its best efforts to furnish such
documents and take any other such action;
(k) to use the net proceeds received by the Transferor from the sale
of the Certificates pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(l) if required, to register the Certificates timely pursuant to the
Exchange Act of 1934; and
(m) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all fees, costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all fees, costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Certificates,
including any fees, costs and expenses of the Trustee or any transfer
agent, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any
preliminary prospectus (including in each case all exhibits, amendments
and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for
investment of the Certificates under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters
and their disbursements with respect thereto), (iv) in connection with the
listing of the Certificates on any stock exchange, (v) related to any
filing with the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Basic Documents, the Blue Sky
Survey and any Legal Investment Survey and the furnishing to Underwriters
and dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided, (vii) of the
Transferor's counsel and accountants and to the extent previously agreed
with the Representative, of the Underwriters'
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counsel, (viii) any expenses incurred by the Transferor in connection with
any "roadshow" presentation to potential investors and (ix) payable to
rating agencies in connection with the rating of the Certificates.
7. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by the
Transferor of its obligations hereunder and to the following additional
conditions:
(a) if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become effective,
not later than 5:00 P.M., New York City time, on the date hereof; and no
stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
Section 6(a) hereof; and all requests for additional information shall
have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the Transferor contained
herein are true and correct on and as of the Closing Date as if made on
and as of the Closing Date and the representations and warranties of the
Transferor and the Servicer in the Pooling and Servicing Agreement will be
true and correct on the Closing Date; and the Transferor shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder and under the Basic Documents at or prior
to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate
an improvement, in the rating accorded any securities of the Transferor by
any "nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities 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);
(d) since the date hereof there shall not have been any material
adverse change or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholder's equity or results of
operations of the Transferor or the Servicer,
-14-
otherwise than as set forth or contemplated in the Prospectus, the effect
of which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Certificates on the Closing Date on the terms and in the manner
contemplated in the Prospectus;
(e) the Representative shall have received on and as of the Closing
Date a certificate of an executive officer of the Transferor with specific
knowledge about the Transferor's financial matters, satisfactory to the
Representative to the effect set forth in subsections (a) through (d) of
this Section;
(f) Xxxxxx & Xxxxxxx LLP, counsel for the Transferor and Servicer,
shall have furnished to the Representative their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Representative, to the effect that:
(i) the Transferor has been duly organized and is validly
existing as a national banking association in good standing under
the laws of the United States, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) the Transferor has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the
Transferor or the transactions contemplated herein or in the Basic
Documents;
(iii) the Servicer is duly incorporated and is validly
existing in good standing under the laws of the state of Minnesota,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus;
(iv) the Servicer has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the
Servicer or the transactions contemplated herein or in the Basic
Documents;
(v) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings
-15-
pending or, to the best of such counsel's knowledge, threatened
against or affecting the Transferor or the Servicer or any of its
properties, or to which the Transferor or Servicer is or may be a
party or to which any property of the Transferor or Servicer is or
may be the subject (i) that are required to be disclosed in the
Registration Statement or the Prospectus, (ii) asserting the
invalidity of this Agreement or of any of the Basic Documents, (iii)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iv) that may adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates, (v) that could materially and
adversely affect the performance by the Transferor or the Servicer
of its obligations under this Agreement or any of the Basic
Documents or (vi) which, if determined adversely to the Transferor
or the Servicer, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Transferor or
the Servicer taken as a whole or that would reasonably be expected
to materially adversely affect the interests of the holders of the
Certificates;
(vi) such counsel does not know of any statutes, regulations,
contracts or other documents that are required to be described in or
incorporated by reference into the Registration Statement or the
Prospectus or required to be filed as an exhibit to the Registration
Statement that are not described, filed or incorporated by reference
as required;
(vii) this Agreement has been duly authorized, executed and
delivered by the Transferor and the Servicer;
(viii) the Certificates have been duly and validly authorized
and, when such Certificates are duly and validly executed and
authenticated by the Trustee and delivered in accordance with the
Pooling and Servicing Agreement and delivered and paid for pursuant
to this Agreement, will be validly issued and outstanding and
entitled to the benefits and security afforded by the Pooling and
Servicing Agreement;
(ix) each of the Basic Documents has been duly authorized,
executed and delivered by the Transferor and the Servicer, as
applicable, and constitutes a valid and binding obligation of each
of the Transferor and the Servicer enforceable against each of the
Transferor and the Servicer in accordance with their terms, subject
as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors rights generally
and to general equitable
-16-
principles;
(x) each of the Transferor and the Servicer is not, nor with
the giving of notice or lapse of time or both would be, in violation
of or in default under, its articles of association or by laws or
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Transferor or the Servicer is a party or by which it or any of its
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Transferor
or the Servicer and its subsidiaries taken as a whole or to the
holders of the Certificates; the issue and sale of the Certificates
and the execution, delivery and performance by the Transferor or the
Servicer, as applicable, of the Certificates, the Basic Documents
and this Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Transferor or the Servicer is a party or by which the Transferor or
the Servicer is bound or to which any of the property or assets of
the Transferor or the Servicer is subject, nor will any such action
result in any violation of the provisions of the articles of
association, or the bylaws of the Transferor or the Servicer or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Transferor or the Servicer, or any of its properties;
(xi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the
Certificates or the consummation of the other transactions
contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act,
and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Certificates by
the Underwriters and the filing of any financing statements required
to perfect the Trust's interest in the Receivables;
(xii) the statements in the Prospectus under "Description of
Certificates" insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings; the statements in the
Registration Statement and the Prospectus under the headings
"Federal Income Tax Consequences", "State and Local
-17-
Tax Consequences", "ERISA Considerations", "Certain Legal Aspects of
the Receivables" and "Legal Matters", to the extent they constitute
descriptions of matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects;
(xiii) the Registration Statement has become effective under
the Securities Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or threatened by the Commission; such counsel
is of the opinion that the Registration Statement and the Prospectus
and any amendments and supplements thereto (other than any
accounting, statistical or financial data included therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act; and
nothing has come to such counsel's attention that would cause it to
believe that (other than the accounting, statistical or financial
data included therein, as to which such counsel need express no
belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective and
at the Closing Date contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and that the Prospectus, as amended or supplemented, if applicable,
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(xiv) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Transferor prior to the Closing Date (other than any accounting,
statistical or financial data included therein, as to which such
counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of
such documents, when such documents were so filed, contained an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such documents
were so filed, not misleading;
(xv) the Transferor and Servicer possess or have obtained all
licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and have made all declarations and
filings with, all federal, state, local
-18-
and other governmental authorities (including foreign regulatory
agencies), all self-regulatory organizations and all courts and
other tribunals, domestic or foreign, necessary to own or lease, as
the case may be, and to operate its properties and to carry on its
business as conducted as of the date hereof, and neither the
Transferor nor the Servicer has received any actual notice of any
proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and
the Prospectus; and each of the Transferor and Servicer is in
compliance with all laws and regulations relating to the conduct of
its business as conducted as of the date of the Prospectus;
(xvi) the Transferor has full power and authority to sell and
assign the Receivables to the Trust pursuant to the Pooling and
Servicing Agreement and has duly authorized such sale and assignment
to the Trust by all necessary corporate action;
(xvii) immediately prior to the transfer of the Receivables by
the Transferor pursuant to the Pooling and Servicing Agreement, the
Transferor was the sole owner of all right, title and interest in
and to the Receivables and the other property to be transferred by
it to the Trust;
(xviii) by assignment and delivery of each of the Receivables
to the Trust as of the Closing Date, the Transferor will transfer
title in the Receivables to the Trust, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, change or
encumbrance;
(xix) 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 required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended;
(xx) the Receivables are either "accounts" or "general
intangibles" as defined in the UCC;
(xxi) all filings necessary under applicable law to perfect
the transfer of the Receivables by the Transferor to the Trustee as
Trustee of the Trust pursuant to the Pooling and Servicing Agreement
have been made and, no other filings (other than the filing of
continuation statements) need be made to maintain the perfection of
the transfer of the Receivables to the Trustee as Trustee of the
Trust pursuant to the Pooling and Servicing Agreement;
(xxiii) the Certificates, this Agreement, the Pooling and
Servicing
-19-
Agreement and the Supplement each conform in all material respects
with the descriptions thereof contained in the Registration
Statement and Prospectus.
(g) on the date hereof and also on the Closing Date, Ernst & Young
LLP shall have furnished to you letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you;
(h) the Representative shall have received on and as of the Closing
Date an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to
the Underwriters, with respect to the validity of the Pooling and
Servicing Agreement and the Certificates and with respect to the
Registration Statement, the Prospectus and other related matters as the
Representative may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(i) Xxxxxx & Whitney LLP, counsel for the Transferor, shall have
furnished to the Representative their written opinion, dated the Closing
Date, with respect to certain federal income tax matters, in form and
substance satisfactory to the Representative, to the effect that:
(i) the statements in the Registration Statement under the
heading "Federal Income Tax Consequences" and the summary thereof
under the heading "Summary-Tax Status," to the extent they
constitute matters of federal law or legal conclusions with respect
thereto, have been reviewed by such counsel and are correct in all
material respects; and
(ii) for federal income tax purposes, the Certificates will be
characterized as indebtedness secured by the Receivables and any
other Trust assets, and the Trust will not be characterized as an
"association" or "publicly traded partnership" taxable as a
corporation;
(iii) assuming that the Certificates are treated as debt for
federal income tax purposes, (x) the Certificates will be treated as
debt for South Dakota and Minnesota state income tax purposes and
(y) Holders of Certificate not otherwise subject to taxation in
South Dakota or Minnesota would not become subject to taxation in
South Dakota or Minnesota solely because of a Holder's ownership of
a Certificate; and
(iv) assuming further that the Trust will not be characterized
as an "association" or "publicly traded partnership" taxable as a
corporation for federal income tax purposes, it will not be subject
to South Dakota or Minnesota state tax at the entity level.
-20-
(j) the Representative shall have received an opinion of counsel to
the Trustee, dated the Closing Date, in form and substance satisfactory to
the Representative to the effect that:
(i) the Trustee has been duly organized and is validly
existing as a national banking association in good standing under
the laws of the United States and has the power and authority to
enter into and to perform all actions required of it under the
Pooling and Servicing Agreement, the Supplement and the Loan
Agreement;
(ii) each of the Pooling and Servicing Agreement, the
Supplement and the Loan Agreement has been duly authorized, executed
and delivered by the Trustee, and constitutes a legal, valid binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms except as such enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or other similar laws now
or hereafter in effect relating to the enforcement of creditors'
rights in general, as such laws would apply in the event of a
bankruptcy, insolvency, liquidation, reorganization, moratorium,
conservatorship, receivership or similar occurrence affecting the
Trustee, and (B) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law) as well as concepts of reasonableness, good faith and fair
dealing;
(iii) the Certificates have been duly authenticated and
delivered by the Trustee;
(iv) the execution and delivery of the Pooling and Servicing
Agreement, the Supplement and the Loan Agreement by the Trustee and
the performance by the Trustee of their respective terms do not
conflict with or result in a violation of (A) any law or regulation
of the United States or the State of New York governing the banking
or trust powers of the Trustee, or (B) the articles of incorporation
or articles of association or bylaws of the Trustee; and
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States 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, the
Supplement and the Loan Agreement or the performance by the Trustee
thereunder;
-21-
(k) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative;
(l) the Representative shall have received copies of letters from:
(i) Standard & Poor's Ratings Group stating that the
Class A Certificates shall have been rated AAA and that the
Class B Certificates shall have been rated at least A;
(ii) Xxxxx'x Investors Service, Inc. stating that the
Class A Certificates shall have been rated Aaa and that the
Class B Certificates shall have been rated at least A; and
(iii) Fitch Investors Service, L.P. stating that the
Collateral Investor Interest shall have been rated at least
BBB;
(m) on the Closing Date, the representations and warranties of the
Transferor and the Servicer in the Pooling and Servicing Agreement will be
true and correct;
(n) any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Loan Agreement, the
Supplement and the Certificates shall have been paid by the Transferor at
or prior to the Closing Date; and
(o) the purchaser of the Collateral Investor Interest shall have
furnished to the Representative the favorable written opinions of counsel
to the purchaser of the Collateral Investor Interest, as to the due
authorization, execution and delivery of the Loan Agreement by the
purchaser of the Collateral Investor Interest and the enforceability of
the Loan Agreement in form and substance satisfactory to the
Representative and its counsel; and
(p) Xxxxxx & Xxxxxxx LLP, counsel for the Transferor, shall have
furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, with
respect to the effect of the Transferor's insolvency or receivership on
the Trust's interests in the Receivables;
-22-
(q) on or prior to the Closing Date the Transferor shall have
furnished to the Representative such further certificates and documents as
the Representative shall reasonably request.
8. (a) Indemnification and Contribution. The Transferor and the Servicer
agree to jointly and severally indemnify and hold harmless each Underwriter,
each affiliate of an Underwriter which assists such Underwriter in the
distribution of the Certificates and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Transferor shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Transferor in writing by such Underwriter through the Representative expressly
for use therein;
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Transferor and the Servicer, their directors, their officers
who signed the Registration Statement, and each person who controls the
Transferor or the Servicer within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Transferor and the Servicer to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Transferor in writing by such Underwriter through the Representative expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus;
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Subsections
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such
-23-
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Transferor or the
Servicer, its directors, its officers who sign the Registration Statement, and
such control persons of the Transferor and the Servicer shall be designated in
writing by the Transferor or the Servicer, respectively. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (c), the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding;
(d) If the indemnification provided for in subsections (a) or (b) above is
unavailable to an Indemnified Person in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such
subsection, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Transferor and the
Servicer on the one hand and the Underwriters on the other hand from the
offering of the Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, 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 Servicer on the one hand
-24-
and the Underwriters on the other in connection with the statements or omissions
that 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 Servicer on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering (before deducting expenses) received by the Transferor and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Certificates. The relative
fault of the Transferor and the Servicer on the one hand and the Underwriters on
the other 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 and the Servicer or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Transferor, the Servicer and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in this subsection (d) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Certificates underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective principal
amount of Certificates set forth opposite their names in Schedule I hereto, and
not joint.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity;
(e) The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of the Transferor and the Servicer set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person
-25-
controlling any Underwriter or by or on behalf of the Transferor or the
Servicer, their officers or directors or any other person controlling the
Transferor or the Servicer and (iii) acceptance of and payment for any of the
Certificates.
9. Termination. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representative, by notice
given to the Transferor, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange or the American Stock Exchange, (ii) trading of any securities of or
guaranteed by the Transferor shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York or South Dakota shall have been declared by either
federal or New York or South Dakota State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Representative,
is material and adverse and which, in the judgment of the Representative, makes
it impracticable to market the Certificates on the terms and in the manner
contemplated in the Prospectus.
10. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Certificates which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of that
Class of Certificates to be purchased on such date, the other Underwriters of
the Class shall be obligated severally in the proportions that the principal
amount of Certificates set forth opposite their respective names in Schedule I
bears to the aggregate principal amount of Certificates set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
the Representative may specify, to purchase the Certificates which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of
Certificates that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Certificates of that Class without the written consent
of such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Certificates which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Certificates with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Certificates of that Class to be purchased on
such date, and arrangements satisfactory to the Representative and the
Transferor for the purchase
-26-
of such Certificates are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Transferor. In any such case either the Representative 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 in the Prospectus or in 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 default of
such Underwriter under this Agreement.
11. Expenses Upon Termination. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part
of the Transferor to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Transferor shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Transferor agrees to
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the Transferor, the Servicer, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Certificates from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
13. Actions by Representative; Notices. Any action by the Underwriters
hereunder may be taken by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc. alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representative c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (Facsimile No.: (212)
648-5909); Attention: Syndicate Desk. Notices to the Transferor shall be given
to it at ______________, _____________, ___________, (Facsimile No.:______);
Attention:__________.
14. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
-27-
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
FIRST BANK OF SOUTH DAKOTA
(NATIONAL ASSOCIATION), as Transferor
By:_______________________
Name:
Title:
FBS CARD SERVICES, INC, as Servicer
By:_______________________
Name:
Title:
Accepted: January __, 1997
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By:___________________________
Name:
Title:
-28-
SCHEDULE I
PRINCIPAL AMOUNT OF CLASS A
CERTIFICATES TO BE PURCHASED
----------------------------
Underwriter
X.X. Xxxxxx Securities Inc............
[Co-Manager]..........................
Total...............====================
PRINCIPAL AMOUNT OF CLASS B
CERTIFICATES TO BE PURCHASED
----------------------------
Underwriter
X.X. Xxxxxx Securities Inc............
[Co-Manager]..........................
Total...............====================
