EXHIBIT 1
UNDERWRITING AGREEMENT
CSX Trade Receivables Corporation
CSXT Trade Receivables Master Trust
$___________
CSXT Trade Receivables Master Trust___% Trade Receivables Participation
Certificates, Series 1998-1
June ___, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Underwriters Listed on
Schedule I (the "Representative")
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
CSX Trade Receivables Corporation, a Delaware corporation (the "Company"),
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as originator of the CSXT Trade Receivables Master Trust (the "Master Trust"),
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proposes, subject to the terms and conditions stated herein, to cause to be
issued and sold to the Underwriters listed on Schedule I hereto (the
"Underwriters") an aggregate of $___________ principal amount of the "CSXT Trade
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Receivables Master Trust ___% Trade Receivables Participation Certificates,
Series 1998-1" (the "Securities"). The Securities will be issued by the Master
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Trust pursuant to an Amended and Restated Pooling and Servicing Agreement, dated
as of October 27, 1993, to be amended as of June ___, 1998, and supplemented by
the Series 1998-1 Supplement to be dated as of June ___, 1998 (the "Pooling and
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Servicing Agreement"), among the Company, CSX Transportation, Inc., ("CSXT"), as
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Servicer and The Chase Manhattan Bank (as successor in interest to Chemical
Bank), as trustee (the "Trustee"). Capitalized terms used and not otherwise
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defined herein are used as defined in the Pooling and Servicing Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
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Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement on
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Form S-3 (File No. 333-48195), including a prospectus, for the registration of
asset-backed securities (issuable in series and classes thereof), including the
Securities, which registration statement has become effective, and a copy of
which, as amended to the date hereof, has heretofore been delivered to the
Representative. The Seller proposes to file with the Commission pursuant to Rule
424(b) under the Securities Act a supplement dated June ___, 1998 (the
"Prospectus Supplement") to the prospectus dated May ___, 1998 (the "Base
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Prospectus") relating to the Securities and the method of distribution thereof.
Such registration statement, including exhibits thereto, is hereinafter called
the "Registration Statement"; and the Base Prospectus and the Prospectus
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Supplement, together with any amendment thereof or supplement thereto authorized
by the Seller prior to the Closing Date for use in connection with the offering
of the Securities are hereinafter called the "Prospectus."
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The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to sell and deliver the Securities to the
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 Company the respective aggregate principal amounts of Securities set
forth opposite such Underwriter's name on Schedule I hereto. The purchase price
for the Securities will be the percentage set forth on Schedule I hereto of the
aggregate principal amounts set forth opposite such Underwriter's name on
Schedule I hereto, plus accrued interest, if any, from June ___, 1998 to the
date of payment and delivery.
2. The Company understands that each Underwriter intends (i) to make a
public offering of the Securities as soon as it deems advisable after this
Agreement has become effective and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order by wire transfer or other same day funds by wire transfer at 9:00 A.M.,
New York City time, on May ___, 1998, 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 Company may agree upon in writing. The time and date of
such payment for the Securities are referred to herein as the "Closing Date."
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As used herein, the term "Business Day" means any day other than a Saturday, a
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Sunday or a day on which The Depository Trust Company is closed.
Payment for the Securities shall be made against delivery to the
Representative for the respective accounts of the Underwriters on the Closing
Date
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of one or more definitive certificate(s) representing the Securities
registered in the name of Cede & Co., as nominee for The Depositary Trust
Company and in such denominations, as permitted by the Pooling and Servicing
Agreement, as the Representative shall request in writing not later than two
full Business Days prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The certificate(s) for the Securities will be made available for
inspection and packaging by the Representative in New York, New York not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus filed as part of the Registration Statement 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 in order 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
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not apply to any statements or omissions made in reliance upon and in
conformity with information relating to the Underwriters furnished to the
Company in writing by any Underwriter through the Representative expressly
for use therein;
(b) the Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"), and
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the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of 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 best knowledge of the Company, threatened by the
Commission; and the Registration Statement, as of the Effective Date, did
not contain an untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading and the Prospectus, as of the date of
the Prospectus Supplement, did not, and as of the Closing Date will not,
contain an untrue statement of a material fact and did not and will not
omit 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; except that the foregoing representations and warranties shall
not apply to statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in
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conformity with information relating to the Underwriters furnished to the
Company in writing by the Underwriters through the Representative expressly
for use therein;
(c) each of the Company and CSXT has been duly incorporated under the
laws of its jurisdiction of incorporation; each of the Company and CSXT is
a validly existing corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and corporate authority to
own, lease and operate its properties and conduct its business, and is 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 substantial properties, or conducts any business, so as to
require such qualification, except where the failure to be so qualified or
in good standing would not have a material adverse effect on the business,
results of operations or financial condition or the material properties or
assets of the Company or CSXT or the performance of their obligations
hereunder or under the Securitization Agreements (as defined below) (a
"Material Adverse Effect");
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(d) each of this Agreement, the Pooling and Servicing Agreement, and
the Receivables Sale Agreement (as defined in the Pooling and Servicing
Agreement) (collectively, excluding this Agreement, the "Securitization
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Agreements") has been duly authorized, executed and delivered by the
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Company and CSXT;
(e) this Agreement constitutes the valid and binding agreement of the
Company and CSXT; and each Securitization Agreement constitutes a legal,
valid and binding agreement of each of the Company and CSXT, enforceable
against the Company and CSXT in accordance with its terms, subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought;
(f) the Securities and the Securitization Agreements conform in all
material respects to the descriptions thereof in the Prospectus;
(g) the Securities have been duly and validly authorized for issuance
and, when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Pooling and Servicing Agreement, and
delivered to and paid for by the Underwriters in accordance with the terms
hereof, will have been duly and validly executed, issued and delivered and
will be entitled to the benefits of the Pooling and Servicing Agreement,
subject to (i) bankruptcy, insolvency, reorganization, moratorium
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or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought;
(h) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Securities and
the Securitization Agreements, and the consummation by the Company of the
transactions contemplated herein and therein and in the Prospectus, (i) do
not and will not result in any violation of the Certificate of
Incorporation or the By-laws of the Company and (ii) do not and will not in
any material respect conflict with, or result in a breach or violation of
any of the terms or provisions of, or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or give rise to any right to accelerate the maturity or require the
prepayment of any indebtedness or the purchase of any capital stock under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any material properties or assets of the Company under, (A) any
contract, indenture, mortgage, deed of trust, loan agreement, note, lease,
partnership agreement or other agreement or instrument to which the Company
or CSXT is a party or by which either of them may be bound or to which any
of their respective properties or assets may be subject, (B) (assuming,
prior to the effectiveness of the Registration Statement, compliance with
the Securities Act) any applicable law or statute, rule or regulation
(other than the securities or Blue Sky laws of the various states of the
United States of America) or (C) any judgment, order or decree of any
government, governmental instrumentality, agency, body or court, domestic
or foreign, having jurisdiction over the Company or CSXT or any of their
respective properties or assets;
(i) the execution and delivery by CSXT of, and the performance by CSXT
of all of its obligations under, this Agreement and the Securitization
Agreements, and the consummation by CSXT of the transactions contemplated
herein and therein and in the Prospectus, (i) do not and will not result in
any violation of the Certificate of Incorporation or the By-laws of CSXT
and (ii) do not and will not in any material respect conflict with, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness or
the purchase of any capital stock under, or result in the creation or
imposition of any lien, charge or encumbrance upon any material properties
or assets of CSXT under, (A) any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, partnership agreement or other
agreement or instrument to which CSXT or the Company is a party or by which
either of them may be bound or to which
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any of their respective properties or assets may be subject, (B) (assuming,
prior to the effectiveness of the Registration Statement, compliance with
the Securities Act) any applicable law or statute, rule or regulation
(other than the securities or Blue Sky laws of the various states of the
United States of America) or (C) any judgment, order or decree of any
government, governmental instrumentality, agency, body or court, domestic
or foreign, having jurisdiction over CSXT or the Company or any of their
respective properties or assets;
(j) the representations and warranties of the Company and CSXT set out
in the Securitization Agreements are true and correct in all material
respects;
(k) no authorization, approval, consent, order, registration,
qualification or license of, or filing with, any government, governmental
instrumentality, agency, body or court, domestic or foreign, or third party
(other than as have been or will be prior to the Closing Date obtained
under the Securities Act or as may subsequently be required under the
Securities Exchange Act of 1934 (the "Exchange Act") or as may be required
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under the securities or Blue Sky laws of the various states of the United
States of America) is required for the valid authorization, issuance, sale
and delivery of the Securities, or the performance by the Company or CSXT
of all of its obligations under this Agreement, the Securitization
Agreements or (in the case of the Company) the Securities, or the
consummation by the Company or CSXT of the transactions contemplated by
this Agreement, the Securitization Agreements or the Prospectus;
(l) neither the Company nor CSXT (i) is in violation of its Articles
of Incorporation or By-Laws or (ii) is in breach or violation in any
material respect of any of the terms or provisions of, or with the giving
of notice or lapse of time, or both, would be in default under, any
contract, indenture, mortgage, deed of trust, loan agreement, note, lease,
partnership agreement, or other agreement or instrument to which the
Company or CSXT is a party or by which either of them may be bound or to
which any of their material properties or assets may be subject, except for
such violations or defaults that would not have a Material Adverse Effect;
(m) there is no action, suit or proceeding before or by any
government, governmental instrumentality, agency, body or court, domestic
or foreign, now pending or, to the best knowledge of the Company and CSXT
after due inquiry, threatened against or affecting the Company or CSXT (i)
asserting the invalidity of this Agreement, any Securitization Agreement or
the Securities, (ii) seeking to prevent the issuance of the Securities or
the
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consummation of any of the transactions contemplated by this Agreement
or any Securitization Agreement, (iii) that might materially and adversely
affect the performance by either the Company or CSXT of its obligations
under, or the validity or enforceability of, this Agreement, any
Securitization Agreement or the Securities, (iv) seeking to affect
adversely the federal income tax attributes of the Securities described in
the Prospectus or (v) that if determined adversely as to either the Company
or CSXT would have a Material Adverse Effect on either the Company or CSXT,
except, in the case of clauses (iii) and (v), as disclosed in, or in a
document incorporated by reference in, the Prospectus and the Registration
Statement;
(n) there has not been any material adverse change in the business,
results of operations or financial condition or the material properties or
assets of CSXT since the end of the most recent fiscal quarter of CSXT;
(o) any taxes, fees, and other governmental charges in connection with
the execution and delivery of this Agreement and the Securitization
Agreements and the execution, delivery, and sale of the Securities have
been or will be paid at or before the Closing Date;
(p) the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
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Indenture Act"), and neither the Company nor the Master Trust is required
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to be registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(q) neither the Company nor CSXT is a party to, or otherwise bound by,
any indenture or other material agreement or instrument, or, to the
Company's or CSXT's knowledge, subject to or in violation of any statute,
regulation, or order of any governmental body, administrative agency,
regulatory body, or court having jurisdiction over the Company or CSXT that
would have a Material Adverse Effect; and
(r) there are no contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required.
5. The Company covenants and agrees with the Underwriters as follows:
(a) to cause the Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Securities Act by
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means reasonably calculated to result in filing with the Commission
pursuant to said rule;
(b) to deliver, at the expense of the Company, (i) on the Closing
Date, two conformed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, to the
Representative, and (ii) during the period mentioned in paragraph (e)
below, to each Underwriter as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative or such Underwriter may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus (other than by filing documents under the
Exchange Act which are incorporated by reference therein), to furnish to
the Representative and its counsel a copy of the proposed amendment or
supplement for review within a reasonable time prior to the proposed filing
thereof and not to file any such proposed amendment or supplement to which
the Representative or its counsel reasonably object;
(d) to advise the Representative promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement shall have
become effective, (ii) 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, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding
for that purpose and (iv) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to obtain
promptly the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters or in the opinion of counsel for the Company a prospectus
relating to the Securities is required by law to be delivered in connection
with sales by an Underwriter or a dealer, any event shall occur or
information shall become known 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 at the time the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to
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comply with law, forthwith to, at the sole expense of the Company, prepare
and, subject to Section 5(c) above, file with the Commission, and furnish
to the Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Company) to which Securities 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 at
the time the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law;
(f) (i) to cooperate with the Underwriters in arranging for the
qualification of the Securities 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 Securities and (ii) to pay all fees and
expenses (including fees and disbursements of counsel for the
Representative) incurred in connection with such qualification and in
connection with the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the Representative may
designate; provided that the Company shall not be required to file a
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general consent to service of process or qualify as a foreign corporation
in any jurisdiction or subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject;
(g) to cause the Master Trust to make generally available to holders
of the Securities and to the Representative, in accordance with Rule 158
under the Securities Act or otherwise, as soon as practicable, but in any
event not later than forty-five days after the end of the fourth full
fiscal quarter (ninety days in the case of the last fiscal quarter in any
fiscal year) following the fiscal quarter ending after the Effective Date,
an earnings statement of the Master Trust (which need not be audited)
complying with Section 11(a) of the Securities Act and covering a period of
at least twelve consecutive months beginning after the Effective Date;
(h) so long as the Securities are outstanding, to deliver or cause to
be delivered to the Representative the annual statements as to compliance
and the annual statement(s) of a firm of independent public accountants
delivered to the Trustee pursuant to the Pooling and Servicing Agreement,
promptly after such statements are furnished to the Trustee;
(i) to pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, all
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costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of
the Trustee, (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 qualification
or exemption of the sale of the Securities under state securities or Blue
Sky laws and the determination of their eligibility for investment under
state and federal laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, (iv) in connection with
the printing (including word processing and duplication costs) and delivery
of this Agreement, the Securitization Agreements and all other agreements
relating hereto or thereto, the Preliminary Blue Sky Memorandum and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, and (v) payable to rating agencies in connection with the rating
of the Securities;
(j) so long as any of the Securities are outstanding, to furnish to
the Representative as soon as practicable after the end of the fiscal year,
(i) all documents required to be distributed to security holders of the
Master Trust or filed with the Commission pursuant to the Exchange Act, or
any order of the Commission thereunder and (ii) from time to time, any
other information concerning the Company filed with any government or
regulatory authority that is otherwise publicly available, as the
Representative may reasonably request; and
(k) to the extent, if any, that the rating provided with respect to
the Securities by the rating agency or agencies that initially rate the
Securities is conditional upon the furnishing of documents or the taking of
any other actions by the Company, to furnish, as soon as practicable, such
documents and take any such other reasonable actions.
The Company and CSXT agree with the Underwriters during the period of 30
days from the date of the Prospectus, not to offer, sell, contract to sell or
announce any offering of any securities of the Company or any other affiliate of
CSXT, or any other trust for which the Company or any other affiliate of CSXT is
depositor, which represent participation interests in trade receivables, without
the Representative's prior written consent, which consent shall not be
unreasonably withheld.
6. The obligation of the Underwriters hereunder to purchase the
Securities is subject to the performance by the Company of its obligations
hereunder and to the following additional conditions:
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(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and any requests for
additional information by the Commission shall have been complied with to
the reasonable satisfaction of the Representative.
(b) Each of the representations and warranties of the Company and CSXT
contained herein shall be true and correct in all material respects on and
as of the Closing Date as if made on and as of the Closing Date, and each
of the Company and CSXT shall have complied with all material agreements
and all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date.
(c) All corporate proceedings and related matters in connection with
the organization of the Company, the validity of the Securitization
Agreements and the registration, authorization, issue, sale and delivery of
the Securities shall have been reasonably satisfactory to counsel to the
Representative, and such counsel shall have been furnished with such papers
and information as they may reasonably have requested to enable them to
pass upon the matters referred to in this paragraph (c).
(d) The Representative shall have received on the Closing Date a
signed opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for
the Company and CSXT, in form and substance satisfactory to the
Representative and counsel to the Representative, dated the Closing Date
and addressed to the Representative, to the effect that:
(i) assuming that the issuance of the Securities has been duly
authorized and when the Securities have been executed by the Company
and duly authenticated by the Trustee in accordance with the
provisions of the Pooling and Servicing Agreement and delivered to the
Representative against payment of the agreed consideration therefor in
accordance with the terms of this Agreement, the Securities will be
duly executed, authenticated, issued and delivered and will be
entitled to the benefits provided by the Pooling and Servicing
Agreement, in accordance with its terms;
(ii) each Securitization Agreement constitutes a legal, valid and
binding obligation of each of the Company and CSXT, enforceable
against the Company and CSXT in accordance with its respective terms;
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(iii) the statements in the Registration Statement and Prospectus
under the heading "Certain Federal Income Tax Consequences" accurately
describe the material Federal income tax consequences to holders of
the Certificates; the statements under the heading "ERISA
Considerations", to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately describe the
material consequences to holders of the Certificates under ERISA and
the Securities, this Agreement and the Securitization Agreements
conform in all material respects to the descriptions thereof in the
Prospectus set forth under the headings "Master Trust Provisions,"
"Series Provisions," "The Pooling Agreement Generally" and
"Description of the Receivables Sale Agreement";
(iv) the Registration Statement has become effective under the
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424 has been made in the manner and within the time
period required by Rule 424; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted
or threatened; the Registration Statement and the Prospectus (and any
supplements thereto) (other than financial and statistical information
contained therein as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder;
(v) the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and neither the Company nor
the Master Trust is required to be registered under the Investment
Company Act; and
(vi) no authorization, approval, consent or order of any
government, governmental instrumentality, agency, body or court,
domestic or foreign, is required for the valid authorization,
issuance, sale and delivery of the Securities, except such consents,
approvals, authorizations or orders as have been obtained under the
Securities Act and as may be required under the state securities or
Blue Sky laws of the various states of the United States of America,
and such other consents, approvals, authorizations or orders as have
been obtained, with such counsel specifying the same.
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Such opinion shall also contain a statement (which may be subject to
customary qualifications) to the effect that such firm has no reason to
believe that at the 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 (and any supplements thereto)
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein in light of the
circumstances under which they were made, not misleading (other than the
historical, proforma, projected or other financial statements, information
and data and statistical information and data included or incorporated by
reference therein, in each case as to which no opinion need be given).
(e) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP shall have furnished to the
Representative a letter stating that the Representative may rely on their
opinions, as special counsel to the Company and CSXT, as delivered to
Xxxxx'x Investors Service, Inc. and Standard & Poor's in connection with
the rating of the Securities.
(f) The Representative shall have received on the Closing Date a
signed opinion of McGuire, Woods, Battle & Xxxxxx LLP, special Florida and
Virginia counsel for the Company and the Master Trust, in form and
substance reasonably satisfactory to the Representative and counsel to the
Representative, dated the Closing Date and addressed to the Representative,
to the effect that the statements in the Registration Statement and
Prospectus under the heading "State and Local Tax Consequences" accurately
describe the material state and local income tax consequences to holders of
the Certificates;
(g) The Representative shall have received on the Closing Date a
signed opinion of Xxxxx X. Xxxxxxxxxxx, Esq., General Counsel-Corporate of
CSX, in form and substance reasonably satisfactory to the Representative
and counsel to the Representative, dated the Closing Date and addressed to
the Representative, to the effect that:
(i) each of the Company and CSXT has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of its state of incorporation with full power and authority (corporate
and other) to own, lease and operate its properties and to conduct its
business;
(ii) except as described in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before or by any
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government, governmental instrumentality, agency, body or court,
domestic or foreign, now pending or, to the best knowledge of such
counsel, threatened against the Company or CSXT that could have a
Material Adverse Effect or that could have a material adverse effect
on the consummation of the transactions contemplated in, or the
fulfillment of the terms of, this Agreement, the Prospectus or the
Securitization Agreements; there is no action, suit or proceeding
before or by any government, governmental instrumentality, agency,
body or court, now pending, or to the best knowledge of such counsel,
threatened against the Company or CSXT that is required to be
described in the Registration Statement or the Prospectus that is not
so described; and to the best of such counsel's knowledge, there are
no contracts or other documents of a character required to be
described or referred to in the Registration Statement or the
Prospectus, or to be filed as an exhibit to the Registration
Statement, that are not described, filed or referred to as required;
(ii) the execution and delivery by the Company of this Agreement,
the Securities and the Securitization Agreements and the performance
by the Company of its obligations hereunder and thereunder (A) have
been duly authorized by the Company, (B) do not and will not violate
the Certificate of Incorporation or By-laws of the Company and (C) do
not and will not in any material respect breach, or result in a
default under, (1) any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease, partnership agreement or other agreement
or instrument to which the Company or CSXT is a party or by which
either of them may be bound or to which any of their respective
properties or assets may be subject, (2) any federal or State of New
York or Delaware law or (3) any judgment, order or decree of any
government, governmental instrumentality, agency body or court,
domestic or foreign, having jurisdiction over the Company or CSXT or
any of their respective properties or assets;
(iv) the execution and delivery by CSXT of this Agreement and the
Securitization Agreements and the performance by CSXT of its
obligations hereunder and thereunder (A) have been duly authorized by
CSXT, (B) do not and will not violate the Certificate of Incorporation
or By-laws of CSXT and (C) do not and will not in any material respect
breach, or result in a default under, (1) any contract, indenture,
mortgage, deed of trust, loan agreement, note, lease, partnership
agreement or other agreement or instrument to which the Company or
CSXT is a party or by which either of them may be bound or to which
any of their respective properties or assets
14
may be subject, (2) any federal or State of New York or Virginia law
or (3) any judgment, order or decree of any government, governmental
instrumentality, agency body or court, domestic or foreign, having
jurisdiction over the Company or CSXT or any of their respective
properties or assets;
(v) the execution and delivery by the Company and CSXT of, and
the performance by the Company and CSXT of all of the provisions of
its obligations under, this Agreement, the Securitization Agreements
and the Securities, and the consummation by the Company and CSXT of
the transactions contemplated herein, therein and in the Prospectus,
do not and will not in any material respect conflict with, or result
in a breach or violation of any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or give rise to any right
to accelerate the maturity or require the prepayment of any
indebtedness or the purchase of any capital stock under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
material properties or assets of the Company or of any Subsidiary
under, (A) any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, partnership agreement or other agreement or
instrument to which the Company or CSXT is a party or by which any of
them may be bound or to which any of their respective properties or
assets may be subject or (B) any judgment, order or decree of any
government, governmental instrumentality, agency, body or court,
domestic or foreign, having jurisdiction over the Company or CSXT or
any of their respective properties or assets; and
(vi) the statements contained in the Registration Statement
under the heading "Certain Legal Aspects Of the Receivables," to the
extent that they constitute statements of matters of law or legal
conclusions with respect thereto, are correct in all material
respects.
Such opinion shall also contain a statement (which may be subject to
customary qualifications) to the effect that such counsel has no reason to
believe that at the 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 (and any supplements thereto)
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein in light of the
circumstances under which they were made, not misleading (other than the
historical, proforma, projected or
15
other financial statements, information and data and statistical
information and data included or incorporated by reference therein, in each
case as to which no opinion need be given).
(h) The Representative shall have received on the Closing Date a
signed opinion of Counsel to the Trustee, in form and substance
satisfactory to the Representative and counsel to the Representative, dated
the Closing Date and addressed to the Representative, to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing and in good standing as a national banking association under
the laws of the United States, is duly qualified to do business in all
jurisdictions where the nature of its operations as contemplated by
the Pooling and Servicing Agreement, the Supplement and the Loan
Agreement requires such qualifications, and has the power and
authority (corporate and other) to issue, and to take all action
required of it under, the Pooling and Servicing Agreement;
(ii) the execution, delivery and performance by the Trustee of
the Pooling and Servicing Agreement and the issuance of the
Certificates by the Trustee have been duly authorized by all necessary
corporate action on the part of the Trustee, and under present laws do
not and will not contravene any law or governmental regulation or
order presently binding on the Trustee or the charter or the by-laws
of the Trustee or contravene any provision of or constitute a default
under any indenture, contract or other instrument to which the Trustee
is a party or by which the Trustee is bound;
(iii) the execution, delivery and performance by the Trustee of
the Pooling and Servicing Agreement and the issuance of the
Certificates by the Trustee do not require the consent or approval of,
the giving of notice to, the registration with, or the taking of any
other action in respect of any Federal, state or other governmental
agency or authority which has not previously been effected;
(iv) each of the Certificates has been duly authenticated and
delivered by the Trustee and each of the Certificates and the Pooling
and Servicing Agreement constitute legal, valid and binding agreements
of the Trustee, enforceable against the Trustee in accordance with its
terms (subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally); and
16
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Trustee is required in connection with its execution and
delivery of the Pooling and Servicing Agreement or the performance by
the Trustee of the terms of the Pooling and Servicing Agreement.
(i) On the date hereof and at the Closing Date, Ernst & Young LLP
shall have furnished to the Representative letters, dated the respective
date of delivery thereof, in form and substance reasonably satisfactory to
the Representative.
(j) At or prior to the Closing Date, the Securities shall be rated
"Aaa" by Xxxxx'x Investors Service, Inc. and "AAA" by Standard & Poor's.
(k) The Company shall have furnished or caused to be furnished to the
Representative a certificate, dated the Closing Date, by either the
President or a Vice President of CSXT (in his capacity as such) to the
effect that the signer of such certificate has examined the Securitization
Agreements and to the effect that: (i) the representations and warranties
of the Company and CSXT contained in such agreements are true and correct
in all material respects at and as of the Closing Date with the same effect
as if made at the Closing Date, (ii) the Company and CSXT have complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date, (iii) 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
Company's knowledge, threatened, (iv) there has been no material adverse
change in the business, results of operation or financial condition or the
material properties or assets of CSXT since the end of the most recent
fiscal quarter of CSXT, and (v) nothing has come to such officer's
attention that would lead such officer to believe that the Prospectus
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(l) The Representative shall have received on and as of the Closing
Date an opinion dated the Closing Date of Xxxxx, Xxxxx & Xxxxx, counsel to
the Representative, addressed to the Representative and in form and
substance satisfactory to the Representative with respect to the validity
of the Securities, the Pooling and Servicing Agreement, the Registration
Statement, the Prospectus and other related matters as the Representative
may reasonably request, and such counsel shall have received such papers
and
17
information as they may reasonably request to enable them to pass upon
such matters.
(m) On or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the
Representative or their counsel, Xxxxx, Xxxxx & Xxxxx, shall reasonably
request.
7. (a) The Company and CSXT will jointly and severally indemnify and
hold harmless each Underwriter and each Person who controls each
Underwriter within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter
may become subject, under the Securities 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 any related
preliminary prospectus, 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 such Underwriter and each Person who controls such
Underwriter within the meaning of the Securities Act for any actual legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Company nor CSXT will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company or CSXT by any Underwriter
through the Representative specifically for use therein, it being
-- -----
understood and agreed that the only such information furnished by any
---------- --- ------
Underwriter consists of the information described as such in subsection (b)
below.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company and CSXT against any losses, claims, damages
or liabilities to which the Company or CSXT, as applicable, may become
subject, under the Securities 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 any related preliminary prospectus,
or arise out of or are based upon the omission or alleged omission to state
18
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 Company or CSXT, as applicable,
by such Underwriter specifically for use therein, and will reimburse any
actual legal or other expenses reasonably incurred by the Company or CSXT,
as applicable, in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action or the assertion by a third
party of a claim, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under subsection (a)
or (b) above, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
except and to the extent of any prejudice to such indemnifying party
arising from such failure to provide such notice. In case any such action
is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying 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 the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of 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 any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in
19
such proportion as is appropriate to reflect the relative benefits
received by the Company or CSXT on the one hand and the Underwriters on the
other from the offering of the Securities 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 Company
or CSXT on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company or CSXT on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company or CSXT bear
to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or CSXT or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder. 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.
(e) The obligations of the Company and CSXT under this Section shall
be in addition to any liability that the Company or CSXT may otherwise have
and shall extend, upon the same terms and conditions, to each Person, if
any, who controls any Underwriter within the meaning of the Securities Act;
and the obligations of each Underwriter under this Section shall be in
addition to any liability that such Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company and CSXT, to each officer of the Company or CSXT who signed the
Registration Statement and to each Person, if any, who controls the Company
or CSXT within the meaning of the Securities Act.
20
(f) The respective indemnities, agreements, representations,
warranties and other statements of the Company or CSXT or its officers and
of each Underwriter 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 Company or CSXT or any of their respective
representatives, officers or directors or any controlling Person, and will
survive delivery of and payment for the Securities.
8. Each Underwriter represents and agrees that:
(a) it has not offered or sold, and will not offer or sell, any
Securities to persons in the United Kingdom, other than to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted, and will
not result, in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995;
(b) it has complied and will comply with all applicable provisions of
the Financial Services Xxx 0000 of Great Britain with respect to anything
done by it in relation to the Securities in, from or otherwise involving
the United Kingdom;
(c) it has only issued or passed on, and will only issue or pass on,
in the United Kingdom any document in connection with the issue of
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000, as amended, (Investment Advertisements)
(Exceptions) Order 1996, as amended, or is otherwise a person to whom the
document may otherwise lawfully be issued or passed on;
(d) it has not and will not use any information that constitutes
"Computational Materials", as defined in the Commission's No-Action Letter,
dated May 20, 1994, addressed to Xxxxxx, Peabody Acceptance Corporation I,
Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by
the Commission's response to the request of the Public Securities
Association dated May 27, 1994), with respect to the offering of the
Certificates without the prior written consent of the Transferor to such
use;
(e) it has not and will not use any information that constitutes "ABS
Term Sheets", as defined in the commission's No-Action Letter, dated
21
February 17, 1995, addressed to the Public Securities Association, with
respect to the offering of the Certificates without the prior written
consent of the Transferor to such use; and
(f) it will not, at any time that such Underwriter is acting as an
"underwriter" (as defined in Section 2(11) of the Act) with respect to the
initial offering of the Certificates, transfer, deposit or otherwise convey
any Certificates into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or
that represents interest in, such Certificates.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Company, 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, the
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iii)
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 or inadvisable to market the Securities
on the terms and in the manner contemplated in the Prospectus.
10. If on the Closing Date (i) any Underwriter shall fail or refuse to
purchase any Securities which it has agreed to purchase hereunder on such date,
(ii) such failure or refusal shall constitute a default in the performance of
such Underwriter's obligations hereunder, and (iii) the aggregate principal
amount of Securities which such defaulting Underwriter agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Securities to be purchased by the Underwriters on such date, the other
Underwriters shall be obligated to purchase Securities which such defaulting
Underwriter agreed but failed or refused to purchase on such date. If on the
Closing Date (i) any Underwriter shall fail or refuse to purchase Securities
which it has agreed to purchase hereunder on such date, (ii) such failure or
refusal shall constitute a default in the performance of such Underwriter's
obligations hereunder, (iii) the aggregate principal amount of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased by the Underwriters on such date,
and (iv) arrangements satisfactory to the non-defaulting Underwriters and the
Company for the purchase of such Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter. In any such case either the Representative or
the
22
Company shall have the right to postpone the Closing Date, but in no event
for longer than seven business 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. If this Agreement shall be terminated by the Underwriters, or any one
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company agrees to reimburse the Underwriters, severally, or such
Underwriter which has so terminated this Agreement with respect to itself, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriter(s) in connection with this Agreement or
the offering contemplated hereunder.
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative 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 telecopied. Notices to the Underwriters shall be
given to the Representative, c/o Credit Suisse First Boston Corporation, 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking
Department-Transactions Advisory Group (facsimile: (000) 000-0000). Notices to
the Company shall be given to it at Xxxxx 000, X.X. Xxx 00, Xxxxxxx, Xxxxxxxx
00000; Attention: Xxxxxx Xxxxxxx.
13. This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and any controlling person referred to herein and
their respective successors, heirs and legal representatives. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors, heirs and legal representatives and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by
reason of such purchase.
14. 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.
23
15. 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.
24
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
CSX TRADE RECEIVABLES
CORPORATION
By:
------------------------------
Name:
Title:
CSX TRANSPORTATION, INC.
By:
------------------------------
Name:
Title:
Accepted: May __, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Representative of the Underwriters
By:________________________________
Name:
Title:
25
SCHEDULE I
Underwriter Principal Amount of Securities Purchase Price
----------- ------------------------------ --------------
Credit Suisse First $ %
Boston
[Citicorp Securities, $_____________ %
Inc.]
Total:
