EXHIBIT 1.1
SAKS CREDIT CORPORATION
Transferor
SAKS CREDIT CARD MASTER TRUST
July 11, 2001
UNDERWRITING AGREEMENT
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Banc of America Securities LLC
As Representative
(the "Representative") of the
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Several Underwriters
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. Saks Credit Corporation is the Transferor (the "Transferor")
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under the Saks Credit Card Master Trust (the "Trust"), which has issued and will
issue, from time to time, asset backed securities and other interests
("Securities") in one or more series (each, a "Series"). Each Security evidences
and will evidence a fractional, undivided percentage interest in the Trust. The
property of the Trust includes and will include receivables (the "Receivables")
generated from time to time in a portfolio of credit card accounts owned by an
affiliate of the Transferor (the "Accounts"), collections thereon and certain
related property to be conveyed to the Trust by the Transferor (the "Trust
Property").
The Master Pooling and Servicing Agreement, dated as of August 21, 1997
(as amended or supplemented, the "Pooling and Servicing Agreement") is among the
Transferor, Xxxxx Fargo Bank Minnesota, National Association (formerly Norwest
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Bank Minnesota, National Association), a national banking association (the
"Trustee") and Saks Incorporated, as servicer (the "Servicer"). The Transferor
proposes to enter into the Series 2001-2 Supplement, dated as of July 17, 2001
(the "Series 2001-2 Supplement"), to the Pooling and Servicing Agreement,
pursuant to which the Trust will issue $333,000,000 aggregate initial principal
amount of Class A Floating Rate Asset Backed Certificates, Series 2001-2 (the
"Class A Certificates"), $36,000,000 aggregate initial principal amount of Class
B Floating Rate Asset Backed Certificates, Series 2001-2 (the "Class B
Certificates," and together with the Class A Certificates, the "Certificates"),
$65,250,000 aggregate initial principal amount of Class C Floating Rate
Securities, Series 2001-2 (the "Class C Securities") and $15,750,000 aggregate
initial principal amount of Class D Certificates, Series 2001-2 (the "Class D
Certificates"). To the extent not defined herein, capitalized terms used
herein shall have the meanings specified in the Pooling and Servicing Agreement
and the Series 2001-2 Supplement.
The Transferor proposes to sell to the underwriters identified on Schedule
I hereto (the "Underwriters"), for whom Banc of America Securities LLC is acting
as representative (the "Representative"), the principal amount of Certificates
identified on Schedule I.
2. Representations and Warranties of the Transferor. The Transferor
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represents and warrants to each Underwriter as of the date hereof, as follows:
(a) a Registration Statement on Form S-3 (File No. 333-94241), including
a prospectus and such amendments thereto as may have been required to the
date hereof, relating to asset backed securities of various classes and
series has been filed with the Securities and Exchange Commission (the
"Commission"). Such Registration Statement has become effective. No stop
orders suspending the effectiveness of the Registration Statement have
been issued and no procedures for that purpose have been instituted or to
the Transferor's knowledge, threatened by the Commission. A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Certificates and additional
information concerning the Certificates, including the terms thereof, and
the Transferor and its affiliates' credit card business has been prepared
and will be filed timely pursuant to Rule 424(b) of the Rules and
Regulations of the Commission (the "Rules and Regulations") following the
execution of this Agreement. Such Registration Statement, as from time to
time amended and supplemented, is referred to as the "Registration
Statement" and the final form
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of Prospectus included in the Registration Statement, as supplemented by
the Prospectus Supplement in the form to be filed with the Commission
pursuant to Rule 424(b) is referred to as the "Prospectus" (the
"Prospectus"). The Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of the
Certificates; and the conditions to the use of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions to Form
S-3, and the conditions of Rule 415 under the Act, have been satisfied
with respect to the Registration Statement;
(b) as of the date of execution of this Agreement, the Registration
Statement and the Prospectus, except with respect to any modification to
which the Representative has agreed in writing, shall be in all
substantive respects in the form furnished to the Representative prior to
such date or, to the extent not completed on such date, shall contain only
such specific additional information and other changes (beyond that
contained in the latest preliminary Prospectus Supplement that has
previously been furnished to the Representative) as the Transferor has
advised the Representative, prior to such time will be included or made
therein;
(c) on the effective date of the Registration Statement, the
Registration Statement and the Prospectus complied in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and, in the case of the Prospectus, omit to state
any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and on the
date hereof and on the Closing Date (as defined in Section 3 hereof), the
Registration Statement and the Prospectus will comply in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and neither of such documents included or will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the foregoing does not apply to
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information contained in or omitted from either of the documents based
upon written information furnished to the Transferor by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus;
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(d) the Transferor is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, with full power,
authority and legal right to own its properties and conduct its business
as described in the Prospectus, is duly qualified to do business and is in
good standing (or is exempt from such requirements), and has obtained all
necessary licenses and approvals (except with respect to the state
securities or Blue Sky laws of various jurisdictions) in each jurisdiction
in which failure to so qualify or obtain such licenses and approvals would
have a material adverse effect on the interests of Certificateholders
under the Pooling and Servicing Agreement or under the Series 2001-2
Supplement;
(e) on the date of this Agreement, the Certificates, the Class C
Securities and the Class D Certificates will have been duly and validly
authorized and, when the Certificates, the Class C Securities and the
Class D Certificates are issued on the Closing Date each will be duly and
validly executed by or on behalf of the Transferor, authenticated by the
Trustee and delivered in accordance with the Pooling and Servicing
Agreement and the Series 2001-2 Supplement and, when the Certificates are
delivered and paid for as provided herein, and when the Class C Securities
and the Class D Certificates are delivered and paid for by the purchaser
thereof or retained by the Transferor, as the case may be, the
Certificates, the Class C Securities and the Class D Certificates will be
validly issued and outstanding and entitled to the benefits and security
afforded by the Pooling and Servicing Agreement and the Series 2001-2
Supplement;
(f) the execution, delivery and performance by the Transferor of this
Agreement, the Pooling and Servicing Agreement, the Series 2001-2
Supplement, the Certificates, the Class C Securities and the Class D
Certificates, and the consummation by the Transferor of the transactions
provided for herein and therein, have been, or will have been as of the
Closing Date, duly authorized by the Transferor by all necessary corporate
action on the part of the Transferor; and neither the execution and
delivery by the Transferor of such instruments, nor the performance by the
Transferor of the transactions herein or therein contemplated, nor the
compliance by the Transferor with the provisions hereof or thereof, will
(i) conflict with or result in a breach of any of the terms and provisions
of, or constitute a default under, any of the provisions of the
Certificate of Incorporation or By-Laws of the Transferor, or (ii)
conflict with any of the provisions of any law, government rule,
regulation, judgment, decree or order binding on the Transferor or its
properties, or (iii) conflict with
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any of the provisions of any indenture, mortgage, contract or other
instrument to which the Transferor is a party or by which it is bound, or
(iv) result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument other than pursuant to
the Pooling and Servicing Agreement and the Series 2001-2 Supplement;
(g) the Pooling and Servicing Agreement constitutes a legal, valid and
binding agreement of the Transferor, enforceable against the Transferor in
accordance with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights in general and to
general principles of equity (whether considered in a proceeding at law or
in equity);
(h) when executed and delivered by the parties thereto, the Series 2001-2
Supplement will constitute a legal, valid and binding agreement of the
Transferor, enforceable against the Transferor in accordance with its
terms, except to the extent that the enforceability thereof may be subject
to bankruptcy, insolvency, reorganization, receivership, conservatorship,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights in general and to general principles of equity (whether
considered in a proceeding at law or in equity);
(i) all approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the
foreign or state securities or Blue Sky laws of various jurisdictions),
required in connection with the valid and proper authorization, issuance
and sale of the Certificates pursuant to this Agreement, the Pooling and
Servicing Agreement and the Series 2001-2 Supplement and the Class C
Securities and the Class D Certificates pursuant to the Pooling and
Servicing Agreement and the Series 2001-2 Supplement, have been or will be
taken or obtained on or prior to the Closing Date;
(j) this Agreement has been duly executed and delivered by the
Transferor;
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(k) except as set forth in or contemplated in the Registration Statement
and the Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of the Transferor since June 6, 2001;
(l) any taxes, fees and other governmental charges in connection with the
execution, delivery and performance by the Transferor of this Agreement,
the Pooling and Servicing Agreement, the Series 2001-2 Supplement and the
Certificates (except for transfer, income or other taxes due upon the sale
of the Certificates by the Underwriters or any Subsequent Purchaser) shall
have been paid or will be paid by or on behalf of the Transferor at or
prior to the Closing Date to the extent then due; and
(m) the Certificates, the Class C Securities, Class D Certificates, the
Pooling and Servicing Agreement and the Series 2001-2 Supplement conform
and will conform as of the Closing Date in all material respects to the
descriptions thereof in the Prospectus.
3. Purchase, Sale and Delivery of Certificates. On the basis of the
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representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Transferor agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Transferor, the principal amount of the Certificates set forth opposite
each Underwriter's name in Schedule I hereto at the purchase price of 99.70% of
the principal amount of such Certificates with respect to the Class A
Certificates and 99.65% of the principal amount of such Certificates with
respect to the Class B Certificates.
Delivery of and payment for the Certificates will be made at the
offices of Xxxxxx & Bird LLP, 0000 X. Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-
3424, on July 17, 2001 (the "Closing Date"), or at such other time thereafter or
other place as the Representative and the Transferor shall agree upon. Delivery
of such Certificates shall be made by the Transferor to the Representative for
the respective accounts of the several Underwriters against payment by the
several Underwriters, through the Representative of the purchase price thereof
by one or more wires of funds immediately available at Closing to an account
designated by the Transferor. Delivery of the Certificates shall be made
through the facilities of The Depository Trust Company ("DTC"). The
Certificates so to be delivered shall be global certificates registered in the
name of Cede & Co., as nominee for DTC. The number and denomination of
definitive certificates so delivered shall be specified by DTC.
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4. Offering by the Underwriters. It is understood that the several
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Underwriters propose to offer the Certificates subject to this Agreement for
sale to the public as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby covenants and
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agrees with each Underwriter that:
(a) prior to the execution of this Agreement, the Transferor will prepare
a Prospectus Supplement setting forth the amount of Certificates and the
terms thereof, the price at which such Certificates are to be purchased by
the Underwriters from the Transferor, either the initial public offering
price or the method by which the price at which the Certificates are to be
sold will be determined, the selling concessions and allowances, if any,
and such other information as the Underwriters and the Transferor may
mutually agree, and which the Transferor deems appropriate in connection
with the offering of the Certificates, but the Transferor will not file
any amendments to the Registration Statement as in effect with respect to
the Certificates, or any amendments or supplements to the Prospectus,
unless it shall first have delivered copies of such amendments or
supplements to the Representative, or if the Representative shall have
reasonably objected thereto promptly after receipt thereof; the Transferor
will immediately advise the Representative and its counsel (i) when notice
is received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of any
order or communication suspending or preventing, or threatening to suspend
or prevent, the offer and sale of the Certificates or of any proceedings
or examinations that may lead to such an order or communication, whether
by or of the Commission or any authority administering any state
securities or Blue Sky law, as soon as practicable after the Transferor is
advised thereof, and will use every reasonable effort both to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued;
(b) if, at any time when the Prospectus is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the
Transferor will promptly prepare and (subject to review and no reasonable
objection by the Representative as described in Section 5(a) hereof) file
with the Commission an amendment or supplement that will correct such
statement
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or omission or an amendment that will effect such compliance and, within
two Business Days thereafter, furnish to the Representative as many copies
of the Prospectus as amended or supplemented as the Representative may
reasonably request; provided, however, that a consent by the
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Representative to any amendment shall not constitute a waiver of any of
the conditions of Section 6 hereof;
(c) the Transferor will make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as
reasonably practicable and within the time specified by, a statement which
will satisfy the provisions of, Section 11(a) of the Act and Rule 158 of
the Commission, as applicable to and customary for asset backed securities
generally, with respect to the Certificates;
(d) the Transferor will make available to each Underwriter, at its
request, copies of the Registration Statement (and at least one copy, if
not previously delivered to the Representative, shall be delivered to the
Representative and will be signed and will include all documents and
exhibits thereto or incorporated by reference therein) and all amendments
thereto and, so long as delivery of a Prospectus by an Underwriter or
dealer may be required by the Act, the Prospectus, and all amendments
thereto and supplements thereto, in each case as soon as available and in
such quantities as the Representative reasonably requests;
(e) the Transferor will assist the Representative in arranging for the
qualification of the Certificates for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative designates and will continue to assist the Representative
in maintaining such qualifications in effect so long as required for the
distribution and will file or cause to be filed such statements and
reports with respect to the distribution as may be required by the laws of
each jurisdiction in which the Certificates have been qualified as
provided above; provided, however, that neither the Transferor nor the
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Trust shall be required to qualify to do business in any jurisdiction
where it is now not qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction in which it
is now not subject to service of process;
(f) except as otherwise specified in this Agreement, the Transferor will
pay all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters for any expenses reasonably
incurred by them in connection with qualification of the Certificates and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representative may designate and the reproduction of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of such Certificates, for all
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reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Representative and, to the extent
previously agreed upon with the Representative, for reasonable expenses
incurred in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriters and the reasonable fees and
disbursements of the Underwriter's counsel;
(g) the Transferor will, for so long as Certificates purchased pursuant
hereto remain outstanding, deliver or cause to be delivered to the
Representative copies of the annual servicer's certificate and the annual
accountants' reports delivered to the Trustee pursuant to the Pooling and
Servicing Agreement; and
(h) the Transferor will, within 120 days after the end of the current
fiscal year of the Trust, cause the Class A Certificates to be registered
in accordance with Section 12(b) or 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligations of the
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several Underwriters to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Transferor
herein as of the date hereof and the Closing Date, to the accuracy of the
statements of the Transferor made pursuant to the provisions hereof, to the
performance by the Transferor in all material respects of its obligations
hereunder and to the following additional conditions precedent:
(a) the Representative shall have received a letter from
PricewaterhouseCoopers LLP, independent public accountants, and, if
requested by the Representative, a letter from such accountants, dated the
Closing Date, each in the forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be made
by the Transferor under the Act prior to the Closing Date for the
Certificates shall have been duly taken or made; and prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Transferor, threatened by
the Commission;
(c) the Representative shall have received a copy of the indemnification
agreement, dated the date hereof, between the Representative and the
Servicer (the "Indemnification Agreement"), executed by the Servicer and
delivered to the Representative;
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(d) the Certificates offered by means of the Registration Statement shall
be rated at the time of issuance, in the case of the Class A Certificates,
in the highest rating category by Xxxxx'x Investors Service, Inc.
("Moodys"), Standard & Poor's Ratings Services, a division of The XxXxxx-
Xxxx Companies, Inc. ("Standard & Poor's") and Fitch, Inc. ("Fitch") and
in the case of the Class B Certificates, in one of the three highest
rating categories by Moody's, Standard & Poor's and Fitch, and in each
case shall not have been placed on any credit watch with a negative
implication for downgrade;
(e) the Representative shall have received opinions of Xxxxxx & Bird LLP,
counsel to the Transferor, and of such local or corporate counsel to the
Transferor and its affiliates, dated the Closing Date, substantially to
the effect that:
(i) the Transferor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, with full power and authority to own its assets and operate
its business as described in the Prospectus, and had at all relevant
times and now has, the power, authority and legal right to acquire,
own and transfer the Receivables transferred or proposed to be
transferred to the Trust as described in the Prospectus;
(ii) the Transferor has full power and authority to sign the
Registration Statement and to execute and deliver this Agreement and
the Series 2001-2 Supplement and to consummate the transactions
contemplated herein, therein and in the Receivables Purchase
Agreement and the Pooling and Servicing Agreement;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of the Transferor and
have been duly executed and delivered by the Transferor;
(iv) the Certificates have been duly authorized by all necessary
action of the Transferor;
(v) this Agreement, the Receivables Purchase Agreement, the
Pooling and Servicing Agreement and the Series 2001-2 Supplement each
constitutes the legal, valid and binding agreement of the Transferor,
enforceable against the Transferor in accordance with its terms,
subject, as to enforcement, to (A) the effect of bankruptcy,
insolvency, fraudulent transfer,
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reorganization, moratorium, conservatorship, receivership, or other
similar laws of general applicability relating to or affecting
creditors' rights generally, (B) the application of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), and (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or providing for contribution
with respect to such liability where such indemnification or
contribution is contrary to public policy;
(vi) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
applicable law for the consummation of the transactions contemplated
herein, the Receivables Purchase Agreement, the Pooling and Servicing
Agreement or the Series 2001-2 Supplement, except such as have been
obtained or made and such as may be required under foreign or state
securities or Blue Sky laws;
(vii) the execution and delivery of the Series 2001-2 Supplement,
the performance by the Transferor of its obligations under this
Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement and the Series 2001-2 Supplement, the transfer of
the Receivables to the Trust, the issuance and sale of the
Certificates, and the consummation of any other of the transactions
contemplated herein, in the Receivables Purchase Agreement, the
Pooling and Servicing Agreement or the Series 2001-2 Supplement, will
not conflict with, result in a breach of or violation of any of the
terms of, or constitute a default under, the Certificate of
Incorporation or By-Laws of the Transferor, each as amended, the
terms of any indenture or other agreement or instrument known to such
counsel to which the Transferor is a party or by which it or its
properties are bound or any rule, order known to such counsel,
statute or regulation, of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Transferor;
provided, however, that such counsel need express no opinion as to
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state securities or Blue Sky laws or the securities laws of any
foreign jurisdiction;
(viii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge,
there are no actions, proceedings or investigations pending or
threatened before any court, administrative agency or other tribunal
(A) asserting the invalidity of this
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Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Series 2001-2 Supplement or the
Certificates, (B) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Series 2001-2 Supplement or the
Certificates, which if adversely determined would materially and
adversely affect the performance by the Transferor of its obligations
under, or the validity or enforceability of, this Agreement, the
Receivables Purchase Agreement, the Pooling and Servicing Agreement,
the Series 2001-2 Supplement or the Certificates, or (C) seeking
adversely to affect the federal income tax attributes of the
Certificates as described in the Prospectus Supplement under the
heading "Certain Federal Income Tax Consequences of the Offered
Certificates";
(ix) the Registration Statement has become effective under the Act;
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened under
the Act; and the Registration Statement and the Prospectus (other
than the financial, numerical and statistical information contained
therein as to which such counsel need express no opinion) as of their
respective effective date or date of issuance complied as to form in
all material respects with the requirements of the Act and the rules
and regulations promulgated thereunder;
(x) this Agreement, the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Series 2001-2 Supplement and the
Certificates conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus;
(xi) the Pooling and Servicing Agreement and the Series 2001-2
Supplement will not be required to be qualified under the Trust
Indenture Act of 1939, as amended, and neither the Transferor nor the
Trust is now, and immediately following the sale of the Certificates
pursuant hereto will be, required to be registered under the 1940
Act;
(xii) the statements in the Prospectus Supplement under the headings
"Series 2001-2 Summary-Tax Status", "State and Local Tax
Consequences", "Series 2001-2 Summary-ERISA Considerations", "Certain
Federal Income Tax Consequences of the Offered Certificates" and
"ERISA
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Considerations" to the extent they constitute matters of Federal or
state law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects;
and
(xiii) the statements in the Prospectus under the headings "Summary-
ERISA Considerations", "Certain Legal Aspects of the Receivables",
"Certain Federal Income Tax Consequences" and "ERISA Considerations,"
to the extent they constitute matters of Federal law or legal
conclusions with respect thereto, have been reviewed by such counsel
and are correct in all material respects;
Such counsel also shall state that, subject to its customary practices and
limitations relating to the scope of such counsel's participation in the
preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein, it has no
reason to believe that at its effective date the Registration Statement
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus on the Closing
Date includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (in each
case, other than financial, numerical and statistical information
contained therein as to which such counsel need express no opinion); in
rendering such opinion, such counsel may rely as to matters of fact, to
the extent deemed proper and as stated therein, on certificates of
responsible officers of the Transferor, the Servicer, The National Bank of
the Great Lakes, a national banking association (the "Seller") and public
officials;
(f) the Representative shall have received opinions of Xxxxxx & Bird
LLP, special counsel to the Seller, and of such local or corporate counsel
to the Seller, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, to the effect that,
with respect to the Seller:
(i) the Seller is a national banking association duly organized
validly existing and in good standing under the laws of the United
States, with full power and authority to own its assets and operate
its business as described in the Prospectus, and had at all relevant
times and now has, the power, authority and legal right to acquire,
own and service the Receivables transferred or proposed to be
transferred to the Transferor as described in the Prospectus;
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(ii) the Seller has full power and authority as a national banking
association to execute and deliver the Receivables Purchase Agreement
and to consummate the transactions contemplated therein;
(iii) the execution, delivery and performance of the Receivables
Purchase Agreement has been authorized by all necessary action on the
part of the Seller and such agreement has been duly executed and
delivered by the Seller;
(iv) the Receivables Purchase Agreement constitutes the legal,
valid and binding agreement of the Seller, enforceable against the
Seller in accordance with its terms, subject, as to enforcement, to
(A) the effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, conservatorship, receivership, or other
similar laws of general applicability relating to or affecting
creditors' rights generally or the rights of creditors of national
banking associations, (B) the application of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or providing for contribution with respect to such
liability where such indemnification or contribution is contrary to
public policy;
(v) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
applicable law for the consummation of the transactions contemplated
by the Receivables Purchase Agreement, except such as have been
obtained or made;
(vi) the execution, delivery and performance by the Seller of its
obligations under the Receivables Purchase Agreement, the transfer of
the Receivables to the Trust, the sale of the Receivables purported
to be sold thereunder, and the consummation of any other of the
transactions contemplated in such agreement, will not conflict with,
result in a breach of or violation of any of the terms of, or
constitute a default under, the Articles of Association or By-Laws of
the Seller, each as amended, the terms of any indenture or other
agreement or instrument known to such counsel to which the Seller is
a party or by which it or its properties are bound or any rule, order
known to such counsel, statute or regulation, of any court,
regulatory
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body, administrative agency or governmental body having jurisdiction
over the Seller; and
(vii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge
(after reasonable investigation), there are no actions, proceedings
or investigations pending or threatened before any court,
administrative agency or other tribunal (A) asserting the invalidity
of the Receivables Purchase Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by such
agreement, which if adversely determined would materially and
adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, such agreement, or (C)
seeking adversely to affect the federal income tax attributes of the
Certificates as described in the Prospectus Supplement under the
heading "Certain Federal Income Tax Consequences of the Offered
Certificates";
(g) the Representative shall have received an opinion of Xxxxxx & Bird
LLP, special counsel for the Servicer, and/or such local or corporate
counsel to the Servicer, dated the Closing Date, substantially to the
effect that:
(i) the Servicer is a corporation, validly existing and in good
standing under the laws of the State of Tennessee, with full power
and authority to own its assets and operate its business as described
in the Prospectus, and had at all relevant times and now has, the
power, authority and legal right to service the Receivables
transferred or proposed to be transferred to the Trust as described
in the Prospectus;
(ii) the Servicer has full power and authority to execute and
deliver the Series 2001-2 Supplement and the Indemnification
Agreement and to consummate the transactions contemplated herein,
therein and in the Pooling and Servicing Agreement;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of the Servicer and
have been duly executed and delivered by the Servicer;
(iv) the Pooling and Servicing Agreement, the Series 2001-2
Supplement and the Indemnification Agreement each constitutes the
legal, valid and binding agreement of the Servicer, enforceable
against the Servicer
15
in accordance with its terms, subject, as to enforcement, to (A) the
effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, conservatorship, receivership, or other
similar laws of general applicability relating to or affecting
creditors' rights generally, (B) the application of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), and (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or providing for contribution
with respect to such liability where such indemnification or
contribution is contrary to public policy;
(v) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
applicable laws for the consummation of the transactions contemplated
herein, the Pooling and Servicing Agreement or the Indemnification
Agreement, except such as have been obtained or made and such as may
be required under state securities or Blue Sky laws or any foreign
securities laws; and
(vi) the execution and delivery of the Series 2001-2 Supplement and
the Indemnification Agreement, the performance by the Servicer of its
obligations under the Pooling and Servicing Agreement and the Series
2001-2 Supplement, and the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement, the Series 2001-
2 Supplement or the Indemnification Agreement, will not conflict
with, result in a breach of or violation of any of the terms of, or
constitute a default under, the Charter of Incorporation or By-Laws
of the Servicer, each as amended, the terms of any indenture or other
agreement or instrument known to such counsel to which the Servicer
is a party or by which it or its properties are bound or any rule,
order known to such counsel, statute or regulation, of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Servicer; provided, however, that such counsel
-------- -------
need express no opinion as to state securities or Blue Sky laws or
any foreign securities laws;
(h) the Representative shall have received an opinion or opinions from
Xxxxxx & Bird LLP, special federal tax counsel to the Transferor, dated the
Closing Date, and in form and substance reasonably acceptable to the
Representative and its counsel, to the effect that the Certificates are
properly characterized as indebtedness for federal income tax purposes and
that the Trust is properly characterized as not an association (or publicly
traded partnership) taxable as a corporation for federal income tax
purposes;
16
(i) the Representative shall have received an opinion or opinions from
special tax counsel to the Transferor, which may be Xxxxxx & Bird LLP,
and/or such local counsel to the Transferor, dated the Closing Date, and in
form and substance satisfactory to the Representative and its counsel, to
the effect that the Certificates are properly characterized as indebtedness
for Illinois state income tax purposes, that the Trust is properly
characterized as not an association (or publicly traded partnership)
taxable as a corporation under the laws of the State of Illinois and that
the Trust will not be subject to any income, franchise, excise or other tax
under the laws of the State of Illinois;
(j) the Representative shall have received an opinion or opinions from
Xxxxxx Xxxx LLP, special counsel for the Seller and the Transferor, and/or
such local counsel to the Transferor dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, with respect
to (A) the validity, perfection and priority of the Trust's interest in the
Receivables and the proceeds thereof, and the validity, perfection and
priority of the Transferor's interest in the Receivables and the proceeds
thereof, (B) the enforceability of the transfers by the Seller to the
Transferor under the Receivables Purchase Agreement notwithstanding the
insolvency of the Seller, (C) the nonconsolidation of the assets and
liabilities of the Transferor with assets and liabilities of its parent(s)
in the event of the insolvency or bankruptcy of such parent(s), and (D)
with respect to other related matters in a form previously approved by the
Representative and its counsel; in addition, the Representative shall have
received a reliance letter with respect to any opinion that the Transferor
is required to deliver to the Rating Agencies that rate the Certificates
and the Class C Securities;
(k) the Representative shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, in form and substance satisfactory to the
Representative, with respect, the Registration Statement, the Prospectus
and other related matters as the Representative may require, and the
Transferor shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters;
(l) the Representative shall have received, with respect to the
Transferor, a certificate, dated the Closing Date, of the Treasurer or a
Senior Vice President or more senior officer of the Transferor in which
such officer shall state that, to his or her knowledge after reasonable
investigation, (A) the representations and warranties
17
of the Transferor in this Agreement are true and correct in all material
respects on and as of the Closing Date, (B) the Transferor has complied in
all material respects with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, (C) the Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted, or to the
knowledge of such officer, are threatened by the Commission, and (D)
subsequent to the date of the Prospectus, there has been no material
adverse change in the condition (financial or otherwise) of the Transferor
except as set forth in or contemplated in the Registration Statement and
the Prospectus or as described in such certificate;
(m) the Representative shall have received, with respect to Saks
Incorporated ("Saks"), a certificate, dated the Closing Date, of the
Treasurer or any Senior Vice President or more senior officer of Saks in
which such officer, to his or her knowledge after reasonable investigation,
shall state that (A) attached thereto is a true and complete copy of the
Charter of Incorporation and By-laws of Saks, and all amendments thereto,
(B) attached thereto is a true and complete copy of the resolutions of its
Board of Directors or executive committee thereof authorizing the execution
and delivery of the Indemnification Agreement and the transactions
contemplated hereby and thereby, and that such resolutions have not been
amended, modified, revoked or rescinded and are in full force and effect on
the Closing Date, (C) the incumbency and specimen signature of each officer
of Saks who executed, or is executing, the Indemnification Agreement or any
other document delivered in connection therewith is attached thereto, (D)
no material consents, licenses or approvals are required in connection with
the execution, delivery and performance by Saks of the Indemnification
Agreement, and that the Indemnification Agreement is valid and enforceable,
and (E) subsequent to the date of the Prospectus, there has been no
material adverse change in the consolidated condition (financial or
otherwise) of Saks and its subsidiaries, except as set forth in or
contemplated in the Registration Statement and the Prospectus or as
described in such certificate;
(n) the Representative shall have received an opinion of counsel to the
Trustee, which may be an opinion of the Trustee's in-house counsel,
addressed to the Representative dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, and to the
Transferor and the Servicer and their counsel, to the effect that:
18
(i) the Trustee has been duly incorporated and is validly existing
as a national banking association under the laws of the United States
and has the power and authority to enter into the Series 2001-2
Supplement and to perform all actions required of it under the
Pooling and Servicing Agreement and the Series 2001-2 Supplement;
(ii) each of the Pooling and Servicing Agreement and the Series
2001-2 Supplement has been duly authorized, executed and delivered by
the Trustee and constitutes a legal, valid and binding obligation of
the Trustee, enforceable against the Trustee in accordance with its
terms, except as such enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, reorganization, moratorium,
conservatorship, receivership or other similar laws now or hereafter
in effect relating to the enforcement of creditors' rights in
general, as such laws would apply in the event of a bankruptcy,
insolvency, liquidation, reorganization, moratorium, conservatorship,
receivership or similar occurrence affecting the Trustee, and (B)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) the Certificates have been duly authenticated and delivered
by the Trustee;
(iv) the execution and delivery of the Series 2001-2 Supplement by
the Trustee and the performance by the Trustee of the respective
terms of the Pooling and Servicing Agreement and the Series 2001-2
Supplement does not conflict with or result in a violation of (A) any
law or regulation of the United States of America or the state of
Minnesota governing the banking or trust powers of the Trustee, or
(B) the Articles of Association or By-Laws of the Trustee; and
(v) no approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the
state of Minnesota having jurisdiction over the banking or trust
powers of the Trustee is required in connection with the execution
and delivery by the Trustee of the Series 2001-2 Supplement or the
performance by the Trustee thereunder or under the Pooling and
Servicing Agreement.
The Transferor will furnish to the Representative conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
requests.
19
7. Indemnification.
---------------
(a) The Transferor will indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Act or the Exchange Act and the respective officers, directors and
employees of each such person, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; and will reimburse each
Underwriter and each such officer, director, employee or controlling person
for any legal or other expenses reasonably incurred by such Underwriter and
each such officer, director, employee or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action, subject to the following proviso, as such expenses are incurred;
provided, however, that (i) the Transferor will not be liable in any such
-------- -------
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement in or omission or alleged omission made in any such documents in
reliance upon and in conformity with written information furnished to the
Transferor by an Underwriter specifically for use therein and (ii) such
indemnity with respect to any untrue statement or alleged untrue statement
or omission or alleged omission in the Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Certificates which are the subject thereof, if such
person was not given or sent a copy of the Prospectus including the
Prospectus Supplement excluding documents incorporated therein by
reference, at or prior to the confirmation of the sale of such Certificates
to such person in any case where such delivery is required by the Act and
the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in the Preliminary Prospectus and
forming the basis for the related cause of action was corrected in the
Prospectus or the Prospectus Supplement. This indemnity agreement will be
in addition to any liability which the Transferor may otherwise have.
20
(b) Each Underwriter severally, and not jointly, will indemnify and hold
harmless the Transferor, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who
controls the Transferor within the meaning of the Act or the Exchange Act
and the respective officers, directors and employees of each such person
against any losses, claims, damages or liabilities to which the Transferor
or any such director, officer or controlling person may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Transferor by such Underwriter specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Transferor or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred. This indemnity
agreement will be in addition to any liability that such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party of the commencement thereof;
but the omission and/or delay so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than in this Section unless such omission caused actual prejudice
to the party not notified; in case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written notice
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with defense thereof other than reasonable costs of
investigation. If the defendants in any action include both the indemnified
party and the indemnifying
21
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties that
are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate
in the defense of such action on behalf of such indemnified party or
parties. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm (in addition to local counsel, if any) for all such
indemnified parties. No indemnifying party may avoid its duty to indemnify
under this Section 7 if such indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of any judgement in, any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on all claims that are the
subject matter of such action. An indemnifying party shall not be liable
for any settlement of any claim effected without its written consent.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered (i) the relative benefit received by
the Transferor on the one hand and the Underwriters on the other hand from
the offering of the Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, the relative benefits
referred to in clause (i) above but also the relative fault of the
Transferor on the one hand and the Underwriters on the other hand in
connection with the statement or omission that resulted in such liabilities
and expenses as well as any other relevant equitable considerations. The
relative benefits received by the Transferor on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds of the offering of the Certificates (before
deducting expenses) received by the Transferor bear to the total
underwriting discounts and commissions received by the Underwriters in
connection with the offering of the Certificates. The relative fault of the
parties shall be determined by reference to, among other things, the
parties' relative knowledge and access to information concerning the matter
with respect to which the claim was asserted, the opportunity to correct
and prevent any
22
statement or omission, and any other equitable considerations appropriate
under the circumstances. The Transferor and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined
by pro rata or per capita allocation (even if the Underwriters were treated
as one entity for such purpose). Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in
excess of the underwriting discount received by it.
8. Default of Underwriters. If any Underwriter or Underwriters participating
-----------------------
in an offering of Certificates default in their obligations to purchase
Certificates hereunder and the aggregate principal amount of such Certificates
which such defaulting Underwriter or Underwriters agreed, but failed, to
purchase does not exceed 10% of the total principal amount of the Certificates,
the Representative may make arrangements satisfactory to the Transferor for the
purchase of such Certificates by other persons, including any of the
Underwriters participating in such offering, but if no such arrangements are
made within a period of 36 hours after the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
total commitments hereunder, to purchase the Certificates which such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Certificates with respect to
which such default or defaults occur is more than 10% of the total principal
amount of the Certificates and arrangements satisfactory to the Representative
and the Transferor for the purchase of such Certificates by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Transferor, except as provided in Section 10. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Termination of the Obligations of the Underwriters. The obligations of the
--------------------------------------------------
Underwriters to purchase the Certificates on the Closing Date shall be
terminable by the Underwriters by written notice delivered to the Transferor if
at any time on or prior to the Closing Date (i) trading in securities generally
on the New York Stock Exchange shall have been suspended or materially limited,
or there shall have been any setting of minimum prices for trading on such
exchange of the securities of Saks or any suspension of trading of the
securities of Saks on any exchange or in the over-the-counter market, (ii) a
general moratorium on commercial banking activities shall have been declared by
any applicable Federal or State authorities, (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representative, as representative of the
Underwriters, impracticable to market the
23
Certificates on the terms and in the manner contemplated in the Prospectus, (iv)
the rating of another Series or Class, or a class of securities shall have been
reduced or withdrawn, which reduction or withdrawal, in the judgment of the
Representative, makes it impracticable to market the Certificates on the terms
and in the manner contemplated in the Prospectus, (v) any public announcement
that any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) has under surveillance or
review its rating of the debt securities of either the Transferor or the
Servicer (other than an announcement with positive implications of a possible
upgrading and no implication of a possible downgrading or such rating), or (vi)
any change or any development involving a prospective change, materially and
adversely affecting (A) the Trust Property taken as whole or (B) the business or
properties of the Transferor or Saks which, in the reasonable judgment of the
Representative, as representative of the Underwriters, in the case of either (A)
or (B), makes it impracticable to market the Certificates on the terms and in
the manner contemplated in the Prospectus. If this Agreement is terminated
pursuant to this Section, such termination shall be without liability of any
party to any other party.
10. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements by the
Transferor or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Underwriters, the Transferor or any of their respective officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates.
If this Agreement is terminated pursuant to Sections 8 or 9 or if for any
reason the purchase of the Certificates by the Underwriters is not consummated,
the Transferor shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5(f), and the obligations of the Transferor
and the Underwriters pursuant to Section 7 shall remain in effect.
11. Representation of the Underwriters. Each underwriter represents and
----------------------------------
warrants that:
(x) it has not offered or sold, and will not offer or sell, any notes to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which do not constitute an
offer to the public in the United
24
Kingdom for the purposes of the Public Offers of Securities
Regulations 1995,
(y) it has complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by it in
relation to the notes in, from or otherwise involving the United
Kingdom, and
(z) it has only issued or passed on, and will only issue or pass on, in
the United Kingdom any document received by it in connection with the
issue or sale of notes to a person who is of a kind described in
Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to
whom the document may otherwise lawfully be issued or passed on.
12. Notices. All communications hereunder will be in writing and, if sent to
-------
an Underwriter, will be mailed, delivered or telecopied to Banc of America
Securities LLC, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxxxx, facsimile
number 000-000-0000, or to such other address as the Representative may
designate in writing to the Transferor, or if sent to the Transferor, will be
mailed, delivered or telecopied to Saks Credit Corporation, 000 Xxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, facsimile number
(000) 000-0000, or to such other address specified in the applicable Terms
Agreement; provided, however, that any notice to an Underwriter pursuant to
-------- -------
Section 7 will be mailed, delivered or telecopied to such Underwriter at the
address furnished by such Underwriter.
13. Successors. This Agreement will inure to the benefit of and be binding
----------
upon parties hereto and their respective successors and the officers, directors
and controlling persons referred to in Section 7 hereof, and their successors
and assigns, and no other person will have any right or obligation hereunder.
14. Severability of Provisions. Any covenant, provision, agreement or term of
--------------------------
this Agreement that is prohibited or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
15. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall constitute an original, but all of which shall together constitute
one instrument.
25
16. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN
--------------
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
26
If the foregoing is in accordance with your understanding of this
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Transferor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Transferor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
SAKS CREDIT CORPORATION,
as Transferor
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BANC OF AMERICA SECURITIES LLC
as Representative of the
Several Underwriters
By /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
27
Schedule I
----------
Principal Amount of
Class A Certificates
--------------------
Banc of America Securities LLC..................... $234,000,000
Banc One Capital Markets, Inc...................... 33,000,000
X.X. Xxxxxx Securities Inc......................... 33,000,000
Xxxxxxx Xxxxx Xxxxxx Inc........................... 33,000,000
------------
Total.............................................. $333,000,000
Principal Amount of
Class B Certificates
--------------------
Banc of America Securities LLC..................... $ 36,000,000
------------
Total.............................................. $ 36,000,000
28
