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EXHIBIT 1.1
CHARMING SHOPPES RECEIVABLES CORP.,
as Seller
SPIRIT OF AMERICA, INC.,
as Servicer
CHARMING SHOPPES MASTER TRUST ASSET BACKED CERTIFICATES
April __, 1999
FORM OF UNDERWRITING AGREEMENT
(Standard Terms)
Bear, Xxxxxxx & Co. Inc.,
as Underwriter or as a Representative
of the Underwriters named in the Terms Agreement
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Charming Shoppes Receivables Corp. ("CSRC") has duly authorized the
issuance of the Series of Asset Backed Certificates designated in the applicable
Terms Agreement (as hereinafter defined) and the sale, pursuant to this
Agreement of the Class A Asset Backed Certificates (the "Class A Certificates")
and the Class B Asset Backed Certificates (the "Class B Certificates") included
in such series (such Class A Certificates and the Class B Certificates,
collectively, the "Certificates"). The Certificates will be issued pursuant to
the Second Amended and Restated Pooling and Servicing Agreement, dated as of
November 25, 1997, as amended by the First Amendment thereto dated as of
_________, 1999 (the "First Amendment"). Such Second Amended and Restated
Pooling and Servicing Agreement as so amended is among CSRC, as Seller, Spirit
of America, Inc., as Servicer and First Union National Bank, as trustee (the
"Trustee") (the Second Amended and Restated Pooling and Servicing Agreement as
amended by the First Amendment and as amended from time to time hereafter is, in
this Agreement referred to as the "Pooling and Servicing Agreement"). The terms
of the Certificates as well as the Class C Certificates and Class D Certificates
described herein will be set forth in the Series Supplement having the date
stated in the applicable Terms Agreement, among CSRC, as Seller, Spirit of
America, Inc., as Servicer, and the Trustee (the "Supplement").
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The Certificates designated in the applicable Terms Agreement may be
sold in a public offering by the Trust (as hereinafter defined) through Bear,
Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), as sole underwriter, or through certain
underwriters which include Bear Xxxxxxx, one or more of which may with Bear
Xxxxxxx act as representative of such underwriters listed on Schedule I to the
applicable Terms Agreement (any underwriter through which Certificates are sold
shall be referred to herein as an "Underwriter" or, collectively, all such
underwriters may be referred to as the "Underwriters"; any representatives
thereof may be referred to herein as a "Representative," which, if the context
herein does require, shall include Bear Xxxxxxx in its capacity as sole
underwriter of any Series, or the "Representatives"). The Certificates sold to
the Underwriters for which Bear Xxxxxxx is a Representative shall be sold
pursuant to a Terms Agreement by and among CSRC, Fashion Service Corp. ("FSC"),
Spirit of America, Inc. ("SOAI"), and the Underwriters, a form of which is
attached hereto as Exhibit A (a "Terms Agreement"), which incorporates by
reference this Underwriting Agreement (the "Agreement," which may include the
applicable Terms Agreement if the context so requires). The standard provisions
set forth herein shall not be construed as an obligation of CSRC to sell any of
the Certificates. The obligation of CSRC to sell the Certificates shall be
evidenced by the applicable Terms Agreement.
Credit enhancement for the Certificates will be provided by the
issuance, as part of the same series as the Certificates, of two subordinated
classes, designated as the Class C Asset Backed Certificates (the "Class C
Certificates") and the Class D Asset Backed Certificates (the "Class D
Certificates"). The Class C Certificates will be sold in a private transaction
and not pursuant to this Agreement. The Class D Certificates will be sold in a
private transaction and not pursuant to this Agreement and all or a portion of
the Class D Certificates may be purchased by an affiliate of CSRC. The term
"applicable Terms Agreement" means the Terms Agreement dated the date hereof.
Each Certificate will represent a specified percentage of undivided interest in
the Charming Shoppes Master Trust (the "Trust"). The assets of the Trust
include, among other things, certain amounts due (the "Receivables") on a pool
of private label credit card accounts owned by Spirit of America National Bank
(the "Bank") and proceeds of credit insurance policies relating to the
Receivables. The Receivables originated by the Bank have been and will be
conveyed to and purchased by CSRC under the terms of a Purchase and Sale
Agreement dated as of November 25, 1997 (the "Purchase Agreement"). To the
extent not defined herein, capitalized terms used herein shall have the meanings
specified in the Pooling and Servicing Agreement.
Unless otherwise stated herein or in the applicable Terms Agreement,
as the context otherwise requires or if such term is otherwise defined in the
Pooling and Servicing Agreement, each capitalized term used or defined herein or
in the applicable Terms Agreement shall relate only to the Certificates
designated in the applicable Terms Agreement and no other Asset Backed
Certificates issued by the Trust.
CSRC has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-1 (having the registration number stated in the applicable Terms
Agreement), including a form of prospectus, relating to the Certificates. The
registration
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statement as amended has been declared effective by the Commission. If any
post-effective amendment has been filed with respect thereto, prior to the
execution and delivery of the applicable Terms Agreement, the most recent such
amendment has been declared effective by the Commission. Such registration
statement, as amended at the time of effectiveness, including all material
incorporated by reference therein and including all information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A under the Act, is referred to in the Agreement as the "Registration
Statement," and the form of prospectus relating to the applicable Certificates,
as first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") or (if no such filing is required) as included in the
Registration Statement, including all material incorporated by reference in such
prospectus under the Act, is referred to in this Agreement as the "Prospectus."
Upon the execution of the applicable Terms Agreement, CSRC agrees
with the Underwriters as follows:
1. Subject to the terms and conditions herein set forth and in the
applicable Terms Agreement, CSRC agrees to sell and deliver the Certificates to
the several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from CSRC the respective principal amount of the Class A Certificates set forth
opposite such Underwriter's name in the applicable Terms Agreement and the
respective principal amount of the Class B Certificates set forth opposite such
Underwriter's name in the applicable Terms Agreement. The Certificates are to be
purchased by the Underwriters at the purchase price or purchase prices set forth
in such Terms Agreement.
2. CSRC understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Certificates as soon after
the Registration Statement and this Agreement and the applicable Terms Agreement
have become effective as in the judgment of the Representative is advisable and
(ii) initially to offer the Certificates upon the terms set forth in the
Prospectus.
3. Unless otherwise provided in the applicable Terms Agreement,
payment for Certificates shall be made to CSRC or to its order by wire transfer
of same day funds at the offices of Xxxxx, Xxxxx & Xxxxx in Chicago, Illinois at
9:00 a.m., Central time, on the Closing Date (as hereinafter defined), or at
such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Representative and CSRC may agree upon in
writing. The time and date of such payment for the applicable Series of
Certificates are referred to herein as the "Closing Date." As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City. Unless otherwise provided in the
applicable Terms Agreement, payment for the Certificates shall be made against
delivery to the Representative for the respective accounts of the several
Underwriters of the Certificates registered in the name of Cede & Co. as nominee
of The Depository Trust Company and in such denominations as the Representative
shall request in writing not later than two full Business Days prior to the
Closing Date, with any transfer taxes payable in connection with the transfer to
the Underwriters of the Certificates duly paid by FSC. The Certificates will be
made available for inspection by the Representative at the offices of Xxxxx,
Xxxxx & Xxxxx not later
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than five hours before the close of business in New York City on the Business
Day prior to the Closing Date.
4. Upon the execution of the applicable Terms Agreement, CSRC
represents and warrants to and agrees with each Underwriter that:
(a) The Registration Statement on Form S-1 (having the registration
number stated in the applicable Terms Agreement), including the Prospectus
and such amendments thereto as may have been required on the date of the
applicable Terms Agreement, relating to the Certificates, has been filed
with the Commission, and such Registration Statement as amended has been
declared effective by the Commission. The conditions to the use of a
registration statement on Form S-1 under the Act as set forth in the
General Instructions to Form S-1 have been satisfied with respect to CSRC
and the Registration Statement.
(b) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of CSRC, threatened by the Commission, and
on the effective date of the Registration Statement, the Registration
Statement and the Prospectus conformed in all respects to the requirements
of the Act and the rules and regulations of the Commission under the Act
(the "Rules and Regulations"), and did not include any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of the applicable Terms Agreement, the Registration Statement and
the Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b), such documents will conform in all respects to
the requirements of the Act and the Rules and Regulations, and on the
Closing Date the Registration Statement and the Prospectus will conform in
all respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents will include on the date of the applicable
Terms Agreement and on the Closing Date 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 that
CSRC makes no representations or warranties with respect to the
Underwriters' Information.
(c) As of the Closing Date, the representations and warranties of
CSRC, as Seller, in the Pooling and Servicing Agreement will be true and
correct in all material respects, except as they expressly relate to prior
dates.
(d) CSRC is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has full corporate power,
authority and legal right to own its properties and conduct its business
as described in the Prospectus, and is duly qualified to do business and
is in good standing (or is exempt from such requirements) under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
material adverse effect on CSRC and its Affiliates, taken as a whole.
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(e) The Certificates have been duly authorized, and, when issued and
delivered pursuant to the Pooling and Servicing Agreement and the
Supplement, duly authenticated by the Trustee and paid for by the
Underwriters in accordance with the terms of this Agreement and the
applicable Terms Agreement, will be duly and validly executed,
authenticated, issued and delivered and entitled to the benefits provided
by the Pooling and Servicing Agreement and the Supplement; each of the
Pooling and Servicing Agreement, the Supplement and the Purchase Agreement
have been duly authorized, executed and delivered by CSRC and constitute
the valid, binding and enforceable agreements of CSRC and this Agreement
and the applicable Terms Agreement have been duly authorized by CSRC and
when executed and delivered by CSRC, SOAI, FSC and the other parties
thereto, each of this Agreement and the applicable Terms Agreement will
constitute a valid, binding and enforceable agreement of CSRC; provided
that with respect to all such documents such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity) and subject to the unenforceability, under certain circumstances,
of provisions indemnifying a party against liability where such
indemnification is contrary to public policy; and, the Class C
Certificates and the Class D Certificates have been duly authorized, and,
when issued and delivered pursuant to the Pooling and Servicing Agreement
and the Supplement, duly authenticated by the Trustee and paid for by the
respective purchasers thereof, will be duly and validly executed,
authenticated, issued and delivered and entitled to the benefits provided
by the Pooling and Servicing Agreement and the Supplement and will be
subordinated to the Certificates and provide credit enhancement for the
Certificates.
(f) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or
made by CSRC for the consummation of the transactions contemplated by this
Agreement, the applicable Terms Agreement, the Purchase Agreement, the
Pooling and Servicing Agreement or the Supplement or for the issuance of
the Certificates or the Class C Certificates or the Class D Certificates
except such as have been obtained and made under the Act, such as may be
required under state securities laws and the filing of any financing
statements required to perfect CSRC's and the Trust's interest in the
Receivables.
(g) CSRC is not in violation of its Certificate of Incorporation or
By-Laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties is bound which
would have a material adverse effect on the transactions contemplated
herein or in the Pooling and Servicing Agreement and the Supplement. The
execution, delivery and performance of this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the Supplement, the
Purchase Agreement, and the issuance and sale of the Certificates, the
Class C Certificates and the Class D Certificates and compliance with the
terms and provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body or
any
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court having jurisdiction over CSRC or any of its properties or any
agreement or instrument to which CSRC is a party or by which CSRC is bound
or to which any of the properties of CSRC is subject, or the Certificate
of Incorporation or By-laws of CSRC.
(h) CSRC has full power and authority to authorize, issue and sell
the Certificates as contemplated by this Agreement and the applicable
Terms Agreement and to enter into this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the Supplement, the
Purchase Agreement and to issue the Class C Certificates and Class D
Certificates.
(i) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
CSRC, threatened to which any of CSRC or its Affiliates is or may be a
party or to which any property of CSRC or its Affiliates is or may be the
subject which, if determined adversely to CSRC, could individually or in
the aggregate reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of CSRC and its Affiliates,
taken as a whole or that would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates; and
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;
(j) This Agreement and the applicable Terms Agreement have been duly
executed and delivered by CSRC.
(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 CSRC or any of its subsidiaries
since ___________ __, 1999.
(l) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement, the Purchase Agreement, the Certificates, the Class C
Certificates and the Class D Certificates shall have been paid or will be
paid by or on behalf of CSRC at or prior to the Closing Date to the extent
then due.
5. Upon the execution of the applicable Terms Agreement, FSC
represents and warrants to and agrees with each Underwriter that:
(a) FSC is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has full corporate power,
authority and legal right to own its properties and conduct its business
as described in the Prospectus, and is duly qualified to do business and
is in good standing (or is exempt from such requirements) under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to
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be so qualified or in good standing would not have a material adverse
effect on FSC and its Affiliates, taken as a whole.
(b) The Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America, and has full corporate power, authority and legal right to own
its properties and conduct its business as described in the Prospectus,
and is duly qualified to do business and is in good standing (or is exempt
from such requirements) under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Bank and its
Affiliates, taken as a whole.
(c) As of the Closing Date, the representations and warranties of
the Bank in the Purchase Agreement will be true and correct in all
material respects, except as they expressly relate to prior dates.
(d) The Purchase Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid, binding and enforceable
agreement of the Bank, and this Agreement and the applicable Terms
Agreement have been duly authorized by FSC and, when executed and
delivered by FSC, CSRC and SOAI, each of this Agreement and the applicable
Terms Agreement will constitute a valid, binding and enforceable agreement
of FSC; provided that, with respect to each of such documents, such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general, the
rights of creditors of national banking associations and such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity) and subject to the
unenforceability, under certain circumstances, of provisions indemnifying
a party against liability where such indemnification is contrary to public
policy.
(e) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or
made by FSC for the consummation of the transactions contemplated by this
Agreement and the applicable Terms Agreement, or by the Bank for the
consummation of the transactions contemplated by the Purchase Agreement,
except such as have been obtained and made under the Act, such as may be
required under state securities laws and the filing of any financing
statements required to perfect the Seller's and the Trust's interest in
the Receivables.
(f) FSC is not in violation of its Certificate of Incorporation or
By-Laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties are bound which
would have a material adverse effect on the transactions contemplated
herein. The execution, delivery and performance of this Agreement and the
applicable Terms Agreement will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body or
any court having jurisdiction over FSC; or any of its
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properties or any agreement or instrument to which FSC is a party or by
which FSC is bound or to which any of the property of FSC is subject, or
the Certificate of Incorporation or By-Laws of FSC.
(g) The Bank is not in violation of its Articles of Association or
By-Laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties are bound which
would have a material adverse effect on the transactions contemplated in
the Purchase Agreement, the Pooling and Servicing Agreement and the
Supplement. The execution, delivery and performance of the Purchase
Agreement will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Bank; or any of its properties or any agreement or
instrument to which the Bank is a party or by which the Bank is bound or
to which any of the property of the Bank is subject, or the Articles of
Association or By-Laws of the Bank.
(h) The Bank had at the time of execution thereof and continues to
have full power and authority to enter into the Purchase Agreement and
convey the Receivables as provided therein and carry out the other
obligations of the Bank therein, and FSC has full power and authority to
enter into the applicable Terms Agreement and to enter into this
Agreement.
(i) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
FSC, threatened to which any of FSC or its Affiliates is or may be a party
or to which any property of FSC or its Affiliates is or may be the subject
which, if determined adversely to FSC, could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of FSC and its Affiliates,
taken as a whole or that would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates; and
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.
(j) This Agreement and the applicable Terms Agreement have been duly
executed and delivered by FSC.
(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 FSC or any of its subsidiaries
since ___________ __, 1999.
(l) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement and the
applicable Terms Agreement shall have been paid or will be paid by or on
behalf of FSC at or prior to the Closing Date to the extent then due.
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6. Upon the execution of the applicable Terms Agreement, SOAI
represents and warrants to and agrees with each Underwriter that:
(a) As of the Closing Date, the representations and warranties of
SOAI in the Pooling and Servicing Agreement will be true and correct in
all material respects, except as they expressly relate to prior dates.
(b) SOAI is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has full corporate power,
authority and legal right to own its properties and conduct its business
as described in the Prospectus, and is duly qualified to do business and
is in good standing (or is exempt from such requirements) under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
material adverse effect on SOAI and its Affiliates, taken as a whole.
(c) The First Amendment has been duly authorized, executed and
delivered by the Servicer and was entered into in full compliance with the
terms of the Pooling and Servicing Agreement as it existed immediately
prior to such amendment.
(d) The Pooling and Servicing Agreement and the Supplement have been
duly authorized, executed and delivered by SOAI and constitute the valid,
binding and enforceable agreements of SOAI and this Agreement and the
applicable Terms Agreement have been duly authorized by SOAI and when
executed and delivered by SOAI, CSRC and FSC, this Agreement and the
applicable Terms Agreement will constitute a valid, binding and
enforceable agreement of SOAI; provided that, with respect to each of such
documents, such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) and subject to
the unenforceability, under certain circumstances, of provisions
indemnifying a party against liability where such indemnification is
contrary to public policy.
(e) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or
made by SOAI for the consummation of the transactions contemplated by this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement or the Supplement except such as have been obtained and made
under the Act, such as may be required under state securities laws and the
filing of any financing statements required to perfect the Trust's
interest in the Receivables.
(f) SOAI is not in violation of its Certificate of Incorporation or
By-Laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it
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or its properties is bound which would have a material adverse effect on
the transactions contemplated herein or in the Pooling and Servicing
Agreement and the Supplement. The execution, delivery and performance of
this Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement and the Supplement and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over SOAI; or any of its properties or any agreement or
instrument to which SOAI is a party or by which SOAI is bound or to which
any of the properties of SOAI is subject, or the Certificate of
Incorporation or By-Laws of SOAI; and SOAI has full power and authority to
enter into this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement and the Supplement.
(g) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
SOAI, threatened to which any of SOAI or its Affiliates is or may be a
party or to which any property of SOAI or its Affiliates is or may be the
subject which, if determined adversely to SOAI, could individually or in
the aggregate reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of SOAI and its Affiliates,
taken as a whole or that would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates; and
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;
(h) This Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by SOAI.
(i) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement and the
Supplement shall have been paid or will be paid by or on behalf of SOAI at
or prior to the Closing Date to the extent then due.
7. Upon the execution of the applicable Terms Agreement, CSRC
covenants and agrees with the several Underwriters that:
(a) CSRC will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the Act.
(b) CSRC will deliver, at the expense of CSRC, to the
Representative, two signed copies of the Registration Statement and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement and each
amendment thereto, in each case without exhibits, and, during the period
mentioned in paragraph (e) below, to each of the Underwriters as many
copies of
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the Prospectus (including all amendments and supplements thereto) as the
Representative may reasonably request.
(c) Before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, CSRC will furnish to the
Representative a copy of the proposed amendment or supplement for review
and will not file any such proposed amendment or supplement to which the
Representative reasonably objects.
(d) CSRC will advise the Representative promptly, and will confirm
such advice in writing, (i) when the Registration Statement shall become
effective, (ii) when any amendment to the Registration Statement shall
become effective, (iii) 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, (iv) 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 (v) of the receipt by CSRC of any notification with
respect to any suspension of the qualification of the Certificates for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to obtain
as soon as possible the withdrawal thereof.
(e) CSRC will if (i) during such period of time after the first date
of the public offering of the Certificates as in the opinion of counsel
for the Underwriters a Prospectus relating to the Certificates is required
by law to be delivered in connection with sales by an Underwriter or
dealer, (ii) any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or (iii) it is necessary to
amend or supplement the Prospectus to comply with the law, forthwith
prepare and furnish, at the expense of CSRC, to the Underwriters and to
the dealers (whose names and addresses the Representative will furnish to
CSRC) to which Certificates may have been sold by the Representative on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with the
law.
(f) CSRC will endeavor to qualify the Certificates for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the Certificates and to pay all fees and expenses (including fees and
disbursements of counsel to the Underwriters) reasonably incurred in
connection with such qualification and in connection with the
determination of the eligibility of the Certificates for investment under
the laws of such jurisdictions as the Representative may designate;
provided, however, that CSRC shall not be obligated to qualify to do
business in any jurisdiction in which it is not currently so qualified;
and provided further that
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CSRC shall not be required to file a general consent to service of process
in any jurisdiction.
(g) On or before December 31 of the year following the year in which
the Closing Date occurs, CSRC will cause the Trust to make generally
available to Certificateholders and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Trust occurring
after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Commission promulgated thereunder.
(h) So long as any of the Certificates are outstanding, CSRC will
furnish to the Representative copies of all reports or other
communications (financial or other) furnished to holders of the
Certificates and copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange.
(i) For a period from the date of this Agreement until the
retirement of the Certificates (x) CSRC will furnish to the Representative
copies of each certificate and the annual statements of compliance
delivered to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to
Article III of the Pooling and Servicing Agreement, by first-class mail as
soon as practicable after such statements and reports are furnished to the
Trustee, and (y) on each Determination Date or as soon thereafter as
practicable, CSRC will give notice by telex or telecopy to the
Representative of the Pool Factor as of the related Record Date.
(j) During the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, CSRC will not
offer, sell, contract to sell or otherwise dispose of any debt securities
of or guaranteed by CSRC which are substantially similar to the
Certificates without the prior written consent of the Representative.
(k) CSRC will cause the Certificates to be registered in a timely
manner pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
8. Upon the execution of the applicable Terms Agreement, FSC, CSRC
and SOAI each severally covenant and agree with the several Underwriters that to
the extent, if any, that the rating provided with respect to the Certificates by
the rating agency or rating agencies rating the Certificates (the "Rating
Agency") is conditional upon the furnishing of documents or the taking of any
other action by CSRC, FSC, the Bank or SOAI agreed upon on or prior to the
Closing Date, CSRC, FSC, the Bank and SOAI each shall use its best efforts to
furnish such documents and take any such other action.
9. CSRC will pay all costs and expenses incident to the performance
of its obligations under this Agreement and the related Terms Agreement,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance,
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execution, authentication and delivery of the Certificates, (ii) incident to the
preparation, printing and filing under the Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Certificates under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters and
their disbursements), (iv) related to any filing with the National Association
of Securities Dealers, Inc., (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement and any Blue Sky Memorandum
and the furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus as herein provided, (vi) the fees and disbursements
of CSRC's counsel and accountants, and (vii) payable to each Rating Agency in
connection with the rating of the Certificates.
10. The several obligations of the Underwriters hereunder are
subject to the performance by each of CSRC, FSC and SOAI of its obligations
hereunder and under the applicable Terms Agreement and to the following
additional conditions:
(a) On or prior to the date of this Agreement, the Representative
shall have received a letter, dated the date of the applicable Terms
Agreement, of Ernst & Young LLP (or such other independent accountants as
shall be named in the applicable Terms Agreement) confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and substantially in
the form heretofore agreed and otherwise in form and in substance
satisfactory to the Representative and its counsel.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the Rules and Regulations and in accordance with Section
7(a) of this Agreement; and, as of the Closing Date, 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, to
the knowledge of CSRC, threatened by the Commission, and all requests for
additional information from the Commission with respect to the
Registration Statement shall have been complied with to the satisfaction
of the Representative.
(c) The representations and warranties of each of CSRC, FSC and SOAI
contained herein are true and correct on and as of the Closing Date as if
made on and as of the Closing Date, and each of CSRC, FSC and SOAI shall
have complied with all agreements and all conditions on its part to be
performed or satisfied hereunder and under the applicable Terms Agreement
at or prior to the Closing Date.
(d) The Representative shall have received an opinion of Xxxxx X.
Xxxxx, Esq., Executive Vice President and General Counsel of Charming
Shoppes, Inc. (or such other counsel as may be named in the applicable
Terms Agreement), dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, to the effect that:
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(i) CSRC is duly organized, validly existing and in good
standing under the laws of the State of Delaware; SOAI is duly
organized, validly existing and in good standing under the laws of
the State of Delaware; FSC is duly organized, validly existing and
in good standing under the laws of the State of Delaware; the Bank
is a national banking association duly organized, validly existing
and in good standing under the laws of the United States of America;
neither CSRC, SOAI, FSC nor the Bank is required to qualify, nor to
register as a foreign corporation, in any state in order to conduct
its business, except those states where it has so qualified or
registered or where the failure to so qualify or register would not
have a material adverse effect upon the Certificateholders; each of
CSRC, SOAI, FSC and the Bank has full power and authority to own its
assets and to transact its business as described in the Prospectus;
and the Bank had at all relevant times, and now has, the power,
authority and legal right to acquire and own the Accounts and sell
and convey the Receivables; CSRC had all relevant times and now has
the power, authority and legal right to purchase, own and sell the
Receivables;
(ii) CSRC has and at all relevant times had the power and
authority to execute and deliver this Agreement, the applicable
Terms Agreement, the Purchase Agreement, the Pooling and Servicing
Agreement and the Supplement and to consummate the transactions
contemplated herein and therein; SOAI has the power and authority to
execute and deliver this Agreement, the applicable Terms Agreement,
the Pooling and Servicing Agreement and the Supplement and to
consummate the transactions contemplated herein and therein; FSC has
the power and authority to execute and deliver this Agreement and
the applicable Terms Agreement; and the Bank has the power and
authority to execute and deliver the First Amendment and the
Purchase Agreement and to consummate the transactions contemplated
herein and therein;
(iii) Neither the execution, delivery and performance by CSRC
of its obligations under this Agreement, the applicable Terms
Agreement, the Purchase Agreement, the Supplement or the Pooling and
Servicing Agreement, the purchase of the Receivables or the transfer
of the Receivables to the Trust, the issuance and sale of the
Certificates, the issuance and sale of the Class C Certificates and
the Class D Certificates nor the consummation of any other of the
transactions contemplated herein, in the applicable Terms Agreement,
the Purchase Agreement, the Supplement or the Pooling and Servicing
Agreement will conflict with, result in a breach of or violation of
any material term of, or constitute a default under, the certificate
of incorporation or by-laws of CSRC, each as amended, or any order
of any court, regulatory body, administrative agency or governmental
body having jurisdiction over CSRC or the material terms of any
material indenture or other material agreement or instrument known
to such counsel to which CSRC is a party or by which it or its
properties are bound (except as set forth in such opinion or the
Prospectus);
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(iv) Neither the execution, delivery and performance by SOAI
of its obligations under this Agreement, the applicable Terms
Agreement, the Supplement, the Pooling and Servicing Agreement nor
the consummation of any other of the transactions contemplated
herein, in the applicable Terms Agreement, the Supplement, the
Pooling and Servicing Agreement, will conflict with, result in a
breach of or violation of any material term of, or constitute a
default under, the certificate of incorporation or by-laws of SOAI,
each as amended, or any order of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
SOAI or the material terms of any material indenture or other
material agreement or instrument known to such counsel to which SOAI
is a party or by which it or its properties are bound (except as set
forth in such opinion or the Prospectus);
(v) Neither the execution, delivery and performance by FSC of
its obligations under this Agreement and the applicable Terms
Agreement nor the consummation of any other of the transactions
contemplated herein or in the applicable Terms Agreement, will
conflict with, result in a breach or violation of any material term
of, or constitute a default under, the Certificate of Incorporation
or By-Laws of FSC, each as amended, or any order of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over FSC or the material terms of any material
indenture or other material agreement or instrument known to such
counsel to which FSC is a party or by which it or its properties are
bound (except as set forth in such opinion or the Prospectus);
(vi) Neither the execution, delivery and performance by the
Bank of its obligations under the Purchase Agreement or the First
Amendment nor the consummation of any other of the transactions
contemplated in the Supplement or the First Amendment, will conflict
with, result in a breach of or violation of any material term of, or
constitute a default under, the Articles of Association or By-Laws
of the Bank, each as amended, or any order of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Bank or the material terms of any material indenture or
other material agreement or instrument known to such counsel to
which the Bank is a party or by which it or its properties are bound
(except as set forth in such opinion or the Prospectus);
(vii) Except as otherwise disclosed in the Prospectus or the
Registration Statement, there are no actions, proceedings or
investigations pending or, to the best of such counsel's knowledge,
threatened before any court, administrative agency or other tribunal
(A) asserting the invalidity of this Agreement, the applicable Terms
Agreement, the Purchase Agreement, the Supplement, the Pooling and
Servicing Agreement or the Certificates or the Class C Certificates
or the Class D Certificates, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the
Purchase Agreement, the Supplement or the Pooling and Servicing
Agreement or the Certificates, which might materially and adversely
affect the performance by any of CSRC, SOAI, FSC or the Bank of its
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obligations under, or the validity or enforceability of, this
Agreement, the applicable Terms Agreement, the Purchase Agreement,
the Supplement, the Pooling and Servicing Agreement or the
Certificates, or (C) seeking adversely to affect the federal income
tax attributes of the Certificates as described in the Prospectus
under the headings "Summary -- Tax Status" and "U.S. Federal Income
Tax Consequences"; and
(viii) Each of the applicable Terms Agreement, incorporating
by reference this Agreement, the Pooling and Servicing Agreement,
the First Amendment, the Supplement and the Purchase Agreement has
been duly authorized, executed and delivered by CSRC; each of the
applicable Terms Agreement, incorporating by reference this
Agreement, the Pooling and Servicing Agreement, the First Amendment
and the Supplement has been duly authorized, executed and delivered
by SOAI; the applicable Terms Agreement, incorporating by reference
this Agreement, has been delivered authorized, executed and
delivered by FSC; and the First Amendment and the Purchase Agreement
have been duly authorized, executed and delivered by the Bank.
(e) The Representative shall have received an opinion of Xxxxx,
Xxxxx & Xxxxx (or such other counsel as may be named in the applicable
Terms Agreement), special counsel for CSRC, SOAI, FSC and the Bank dated
the Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, to the effect that:
(i) The Certificates have been duly authorized and, when
executed and authenticated in accordance with the terms of the
Pooling and Servicing Agreement and the Supplement and delivered and
paid for pursuant to this Agreement and the applicable Terms
Agreement, will be duly and validly issued and outstanding and will
be entitled to the benefits of the Pooling and Servicing Agreement
and the Supplement;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
herein, in the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Supplement or the Purchase Agreement, except for such
consents, approvals, orders or filings as may be required under
federal or state securities laws and any UCC-1 financing statements
that will be filed on or about the Closing Date;
(iii) The applicable Terms Agreement, incorporating by
reference this Agreement, the Purchase Agreement, the Pooling and
Servicing Agreement, the First Amendment and the Supplement each
constitutes the legal, valid and binding agreement of CSRC,
enforceable against CSRC in accordance with its terms, the
applicable Terms Agreement, incorporating by reference this
Agreement, the Pooling and Servicing Agreement, the First Amendment
and the Supplement each constitutes the legal, valid and binding
agreement of SOAI, enforceable against SOAI in accordance with its
terms; the applicable Terms Agreement,
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incorporating by reference this Agreement, constitutes the legal,
valid and binding agreement of FSC; and the First Amendment and the
Purchase Agreement each constitutes the legal, valid and binding
agreement of the Bank enforceable against the Bank in accordance
with its terms; provided that, as to enforcement, such opinions are
subject to (A) the effect of bankruptcy, insolvency, reorganization,
moratorium, conservatorship, receivership, or other similar laws of
general applicability relating to or affecting creditors' rights in
general and 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
where such indemnification is contrary to public policy;
(iv) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Commission pursuant
to Rule 424(b) promulgated under the Act; to the best of such
counsel's knowledge after due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act; and the Registration Statement and the
Prospectus (other than the financial and statistical information
therein as to which such counsel 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;
(v) This Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement, the Supplement, the Purchase
Agreement and the Certificates conform in all material respects to
the descriptions thereof contained in the Registration Statement and
the Prospectus;
(vi) The Pooling and Servicing Agreement and the Supplement
will not be required to be qualified under the Trust Indenture Act
of 1939, as amended, and the Trust is not now, and immediately
following the sale of the Certificates pursuant hereto, will not be
required to be registered under the Investment Company Act of 1940,
as amended;
(vii) The disclosure in the Prospectus of certain legal
proceedings, contracts and other documents and the filing of such
contracts and documents as exhibits to the Registration Statement
are appropriately responsive in all material respects to the
applicable requirements of the Act and the rules and regulations
promulgated thereunder;
(viii) The statements in the Prospectus under the heading
"U.S. Federal Income Tax Consequences" and the summary thereof under
the heading "Summary -- Tax Status," to the extent they constitute
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects;
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(ix) The statements in the Prospectus under the headings
"Certain Legal Aspects of the Receivables" and "ERISA
Considerations," to the extent they constitute matters of law or
legal conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects;
(x) For federal income tax purposes, the Trust will be
disregarded and treated as a mere security device and the
Certificates will be characterized as indebtedness of CSRC that is
secured by the Receivables and the issuance of the Certificates will
not be treated as a sale of the Receivables by CSRC; and
(xi) Neither the execution, delivery and performance by CSRC
of its obligations under this Agreement, the applicable Terms
Agreement, the Supplement, the Pooling and Servicing Agreement or
the Purchase Agreement, the purchase of the Receivables and the
transfer of the Receivables to the Trust, the issuance and sale of
the Certificates nor the consummation of any of the other
transactions contemplated herein, in the applicable Terms Agreement,
the Supplement, the Pooling and Servicing Agreement or the Purchase
Agreement will conflict with, result in a breach of or violation of
any rule, statute or regulation (including federal banking laws), or
any order or decree known to us, of any regulatory body,
administrative agency or governmental body having jurisdiction over
CSRC.
(xii) Neither the execution, delivery and performance by SOAI
of its obligations under this Agreement, the applicable Terms
Agreement, the Supplement or the Pooling and Servicing Agreement,
nor the consummation of any of the other transactions contemplated
herein, in the applicable Terms Agreement, the Supplement or the
Pooling and Servicing Agreement, will conflict with, result in a
breach of or violation of any rule, statute or regulation (including
federal banking laws), or any order or decree known to us, of any
regulatory body, administrative agency or governmental body having
jurisdiction over SOAI.
(xiii) Neither the execution, delivery and performance by FSC
of its obligations under this Agreement and the applicable Terms
Agreement nor the consummation of any of the other transactions
contemplated herein and in the applicable Terms Agreement, will
conflict with, result in a breach or violation of any rule, statute
or regulation including federal banking laws, or any order or decree
known to us, of any regulatory body, administrative agency or
governmental body having jurisdiction over FSC;
(xiv) Neither the execution, delivery and performance by the
Bank of its obligations under this Agreement, the applicable Terms
Agreement or the Purchase Agreement, the conveyance of the
Receivables, nor the consummation of any of the other transactions
contemplated herein, in the applicable Terms Agreement, the
Supplement or the Pooling and Servicing Agreement nor the
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Purchase Agreement, will conflict with, result in a breach of or
violation of any rule, statute or regulation (including federal
banking laws), or any order or decree known to us, of any regulatory
body, administrative agency or governmental body having jurisdiction
over the Bank.
Such counsel also shall state that they have participated in
conferences with officers and other representatives of CSRC, SOAI,
FSC, the Bank and the Underwriters, counsel to the Underwriters,
representatives of the independent accountants for CSRC, SOAI, FSC
and the Bank and the Underwriters at which the contents of the
Registration Statement and the Prospectus were discussed and,
although they are not passing upon and do not assume responsibility
for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
(except as stated in paragraphs (vii) and (ix) above) and have made
no independent check or verification thereof for the purpose of
rendering their opinion, on the basis of the foregoing (relying as
to materiality to a large extent upon the certificates of officers
and other representatives of CSRC, SOAI, FSC and the Bank), nothing
has come to such counsel's attention that leads such counsel to
believe that either the Registration Statement, as of its effective
date, or the Prospectus as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which
they were made, not misleading; provided, however, that such counsel
express no view with respect to the financial and statistical data
included in the Registration Statement or the Prospectus.
(f) The Representative shall have received an opinion or opinions of
Xxxxx, Xxxxx & Xxxxx (or such other counsel as may be named in the
applicable Terms Agreement), special counsel for the Bank and CSRC, dated
the Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, with respect to certain matters relating
to the transfer of the Receivables to CSRC and to the Trust, with respect
to the perfection of the Trust's interest in the Receivables, with respect
to the security interest of any Receivable Purchaser in the assets of the
Trust not being superior to the security interest of the Trustee in the
assets of the Trust held for the benefit of the Investor
Certificateholders, with respect to the applicability of certain
provisions of the National Bank Act and the Federal Deposit Insurance Act,
as amended by the Financial Institutions, Reform, Recovery and Enforcement
Act of 1989 with respect to the effect of receivership of the Bank on such
interest in the Receivables, and with respect to other related matters in
a form previously approved by the Representative and its counsel.
(g) The Representative shall have received from Xxxxxx, Xxxxxxxxxx &
Sutcliffe LLP (or such other counsel as may be named in the applicable
Terms Agreement), special counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, in form and substance satisfactory to
the Representative, with respect to the organization of each of CSRC,
SOAI, FSC and the Bank, the validity of the Certificates, the Registration
Statement, the Prospectus and other related matters as the Representative
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may require, and each of CSRC and FSC shall have furnished to such counsel
such documents as they may request for the purpose of enabling them to
pass upon such matters.
(h) The Representative shall have received a certificate or
certificates, dated the Closing Date, of a Vice President or more senior
officer of each of CSRC, SOAI and FSC in which such officer, to the best
of his or her knowledge after reasonable investigation, shall state that
(A) the representations and warranties of each of CSRC, SOAI and FSC in
this Agreement are true and correct in all material respects on and as of
the Closing Date, (B) each of CSRC, SOAI and FSC has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder and under the applicable Terms Agreement at or prior
to the Closing Date, (C) the representations and warranties of CSRC, SOAI
and the Bank, respectively in the Supplement, in the Pooling and Servicing
Agreement and in the Purchase Agreement are true and correct as of the
dates specified in the Supplement, in the Pooling and Servicing Agreement
and in the Purchase Agreement, and are true on the Closing Date except to
the extent such representations and warranties relate to an earlier date,
(D) 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 are threatened
by the Commission and (E) subsequent to the date of the Prospectus, there
has been no material adverse change in the condition (financial or
otherwise) of CSRC, SOAI or FSC or any of their respective Affiliates
except as set forth in or contemplated in the Registration Statement and
the Prospectus or as described in such certificate;
(i) The Representative shall have received an opinion of Squire,
Xxxxxxx & Xxxxxxx LLP, special counsel for CSRC, dated the Closing Date,
in form and substance reasonably satisfactory to the Representative and
its counsel, with respect to the characterization of the Certificates
under Ohio tax law; and, with respect to the perfection of the Trust's
interest in the Receivables and with respect to other related matters in a
form previously approved by the Representative and its counsel.
(j) The Representative shall have received an opinion of [Pepper,
Xxxxxxxx & Xxxxxxx] (or such other counsel as may be named in the
applicable Terms Agreement), counsel to the Trustee, dated the Closing
Date, in form and substance reasonably satisfactory to the Representative
and its counsel, to the effect that:
(i) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of
the United States of America, has full power and authority to
transact the business of banking and has the power and authority to
enter into and to perform all actions required of it under the
Pooling and Servicing Agreement and the Supplement;
(ii) Each of the Pooling and Servicing Agreement and the
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)
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bankruptcy, insolvency, liquidation, reorganization, moratorium,
conservatorship, receivership or other similar laws now or hereafter
in effect relating to the enforcement of creditors' rights in
general, as such laws would apply in the event of a bankruptcy,
insolvency, liquidation, reorganization, moratorium,
conservatorship, receivership or similar occurrence affecting the
Trustee, and (B) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law) as well as concepts of reasonableness, good faith and fair
dealing;
(iii) The Certificates have been duly authenticated and
delivered by the Trustee;
(iv) The execution and delivery of the Pooling and Servicing
Agreement and the Supplement by the Trustee and the performance by
the Trustee of their respective terms do not conflict with or result
in a violation of (A) any law or regulation of the United States of
America or the State of Pennsylvania governing the banking or trust
powers of the Trustee, or (B) the Certificate of Incorporation 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 Pennsylvania having jurisdiction over the banking or
trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and Servicing
Agreement and the Supplement or the performance by the Trustee
thereunder.
(k) The Representative shall have received a letter, dated the
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section 10.
(l) The Representative shall have received evidence satisfactory to
it that the Certificates shall be rated in accordance with the applicable
Terms Agreement by each Rating Agency.
CSRC will furnish the Representative, or cause the Representative to
be furnished with, such conformed copies of such opinions, certificates, letters
and documents as the Representative reasonably requests.
11. (a) Each of CSRC, SOAI and FSC agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages, liabilities and expenses
(including, without limitation, the reasonable legal fees and other
reasonable expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented
if CSRC shall have furnished any amendments or supplements thereto)
or any preliminary prospectus,
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or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and
in conformity with information relating to any Underwriter furnished to
CSRC in writing by such Underwriter through the Representative expressly
for use in the Prospectus. Each of CSRC, SOAI and FSC hereby acknowledge
that the only information relating to any Underwriter furnished to CSRC
for use in the Prospectus is the following (the "Underwriters'
Information"): the information on the cover page in the chart under the
headings Class A Certificates and Class B Certificates, the "Price to
public for certificate"; the first sentence under the caption "Risk
Factors--It may not be possible to find an investor to purchase your
certificates"; and, under the caption "Underwriting," the information in
the table, the second and third paragraphs following the table and the
last paragraph under such "Underwriting" caption. The Underwriters agree,
however, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages, liabilities or expenses
purchased Certificates if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if
CSRC shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented)
shall not have been furnished to such person at or prior to the written
confirmation of the sale of such Certificates to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless each of CSRC, SOAI and FSC, its directors, its officers
who sign the Registration Statement and each person who controls CSRC,
SOAI or FSC within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the indemnity from
each of CSRC, SOAI and FSC to each Underwriter in paragraph (a) of this
Section 11, but only with reference to the Underwriters' Information.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either paragraph (a) or (b) of this Section 11, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the reasonable fees and reasonable expenses
of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or
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(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of
Underwriters shall be designated in writing by the Representative and any
such separate firm for CSRC, SOAI and FSC, its directors, its officers who
sign the Registration Statement and such control persons of CSRC, SOAI and
FSC or authorized representatives shall be designated in writing by CSRC,
SOAI and FSC. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement
or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 11 is unavailable to an Indemnified Person in respect of all
losses, claims, damages, liabilities or expenses referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate
to reflect the relative benefits received by CSRC, SOAI and FSC on the one
hand and the Underwriters on the other hand from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of CSRC, SOAI and FSC on the one hand and the
Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relative equitable considerations. The relative benefits
received by CSRC, SOAI and FSC on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Certificates (before deducting
expenses) received by CSRC and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public
offering price of the Certificates. The relative fault of CSRC, SOAI and
FSC on the one hand and the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by CSRC, SOAI
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or FSC or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(e) CSRC, SOAI and FSC and the Underwriters agree that it would not
be just and equitable if contribution pursuant to paragraph (d) of this
Section 11 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in such paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) of this Section 11
shall be deemed to include, subject to the limitations set forth above,
any reasonable legal or other reasonable expenses incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 11, in no
event shall an Underwriter be required to contribute any amount in excess
of the amount by which the underwriting discount on the Certificates
purchased by such Underwriter exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 11 are several in
proportion to the respective principal amount of the Certificates set
forth opposite their names in Schedule I to the Terms Agreement and not
joint.
The indemnity and contribution agreements contained in this Section
11 are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section
11 and the representations and warranties of each of CSRC, SOAI and FSC set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or by or on behalf of each of CSRC, SOAI and
the Bank, its officers or directors or any other person controlling each of
CSRC, SOAI and the Bank and (iii) acceptance of and payment for any of the
Certificates.
12. Notwithstanding anything herein contained, this Agreement and
the applicable Terms Agreement may be terminated in the absolute discretion of
the Representative, by notice given to CSRC, if after the execution and delivery
of this Agreement and the applicable Terms Agreement and prior to the Closing
Date (i) there has occurred any material adverse change or any development
involving a prospective material adverse change, in or affecting the general
affairs, business, prospects, management, financial position, stockholders'
equity or results of operation of CSRC, SOAI or FSC or Charming Shoppes, Inc.,
and their respective subsidiaries, taken as a whole, the effect of which in the
reasonable judgment of the Representative after consultation with CSRC, SOAI,
FSC and Charming Shoppes, Inc. materially impairs the investment quality of the
Certificates; (ii) there has occurred any downgrading or placement on "credit
watch" for possible downgrade in the rating accorded any
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securities of or guaranteed by CSRC, SOAI or FSC or Charming Shoppes, Inc., by
any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act; (iii) trading generally
shall have been suspended or materially limited on or by, as the case may be,
the New York Stock Exchange; (iv) trading of any securities of or guaranteed by
CSRC or FSC or Charming Shoppes, Inc. shall have been suspended on any exchange
or in any over-the-counter market; (v) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or New
York State authorities; or (vi) there shall have occurred any outbreak or
escalation of hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impracticable or inadvisable to proceed with
completion of the sale and payment for the Certificates.
13. If any Underwriter defaults in its obligations to purchase
Certificates hereunder and the aggregate principal amount of the Certificates
that such defaulting Underwriter agreed but failed to purchase does not exceed
10% of the total principal amount of such Certificates, the Representative may
make arrangements satisfactory to CSRC for the purchase of such Certificates by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated, in proportion to their commitments hereunder, to purchase the
Certificates that such defaulting Underwriter agreed but failed to purchase. If
any Underwriter so defaults and the aggregate principal amount of the
Certificates with respect to which such default or defaults occur exceeds 10% of
the total principal amount of such Certificates and arrangements satisfactory to
the Representative and CSRC 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 nondefaulting Underwriter or
CSRC, except as provided in Section 9. In any such case, either the
Representative or CSRC shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents
may be effected. Any action taken under this paragraph shall not relieve a
defaulting Underwriter from liability for its default.
14. If for any reason other than as set forth in Section 13 the
purchase of the Certificates by the Underwriters is not consummated, CSRC shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 9 and the respective obligations of CSRC and the Underwriters pursuant
to Section 11 shall remain in effect. If the purchase of the Certificates by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of any event specified in clauses (iii), (iv), (v) or (vi) of Xxxxxxx
00, XXXX will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
it in connection with the offering of the Certificates.
15. Any action by the Underwriters hereunder may be taken by Bear
Xxxxxxx on behalf of the Underwriters, and any such action taken by Bear Xxxxxxx
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall
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be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be given to the
Representative, c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (Facsimile No.: 212-___-____), Attention: ________________. Notices
to CSRC shall be given to it, c/o Charming Shoppes, Inc., 000 Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel.
16. This Agreement shall become effective upon execution and
delivery of the applicable Terms Agreement.
17. This Agreement shall inure to the benefit of and be binding upon
CSRC, SOAI, FSC, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of
Certificates from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
18. THIS AGREEMENT MAY BE SIGNED IN COUNTERPARTS, EACH OF WHICH
SHALL BE AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among CSRC, SOAI, FSC and the several Underwriters in
accordance with its terms.
Very truly yours,
CHARMING SHOPPES RECEIVABLES CORP.
By: ___________________________________
Name:
Title:
SPIRIT OF AMERICA, INC.
By: ___________________________________
Name:
Title:
FASHION SERVICE CORP.
By: ___________________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
BEAR, XXXXXXX & CO. INC.,
as Representative of the Underwriters
named in Schedule I to the Terms Agreement
By:___________________________________
Name:
Title:
28
EXHIBIT A
[FORM OF SERIES 1999-1 TERMS AGREEMENT]
CHARMING SHOPPES MASTER TRUST
Series [ %] [Floating Rate]
Asset Backed Certificates
TERMS AGREEMENT
Dated: _______ , 19__
To: Charming Shoppes Receivables Corp.
Re: Underwriting Agreement dated _______ , 19__ .
Underwriters: The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the
purposes of the above referenced Underwriting Agreement as such
Underwriting Agreement is incorporated herein and made a part
hereof.
Terms of Certificates:
Initial Investor Interest Interest Rate or Formula Price to Public (1)
------------------------- ------------------------ -------------------
(1) Plus accrued interest at the applicable rate from ______ , 199_ .
Certificate Rating [s]: ["_______ " by Xxxxx'x Investors Service, Inc.]
["_______ " by Standard & Poor's Corporation] [other]
Distribution Dates: ____________________ .
Closing Date:______
29
Credit Enhancement Provider:
Trustee:
Pooling and Servicing Agreement:
Supplement:
Purchase Price:
The purchase price payable by the Underwriters for the Certificates
covered by this Agreement will be the following percentage of the principal
amounts to be issued:
Per Certificate _____________ %
Registration Statement:
Underwriting Commissions, Concessions and Discounts:
The Underwriters' discounts and commissions, the concessions that
the Underwriters may allow to certain dealers, and the discounts that such
dealers may reallow to certain other dealers, each expressed as a percentage of
the principal amount of the Certificates, shall be as follows:
Underwriting
Discounts and Selling
Concessions Concessions Reallowance
----------- ----------- -----------
% % %
Location of Closing:
Payment for the Certificates:
Opinion Modifications:
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The Underwriters agree, severally and not jointly, subject to the
terms and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Certificates set
forth opposite their names on Schedule I hereto.
BEAR XXXXXXX & CO. INC.
as Representative of the Underwriters
named in Schedule I hereto
By:___________________________________
Name:
Title:
Accepted:
CHARMING SHOPPES RECEIVABLES CORP.
By:___________________________________
Name:
Title:
SPIRIT OF AMERICA, INC.
By:___________________________________
Name:
Title:
FASHION SERVICE CORP.
By:___________________________________
Name:
Title:
31
SCHEDULE I
UNDERWRITERS
$_____________________________ Principal Amount of Series ______
[______ %] [Floating Rate] Asset Backed Certificates.
Principal Amount
----------------
[Name of Underwriter] $
----------
==========
32
CHARMING SHOPPES MASTER TRUST
$__________ Floating Rate Class A Asset Backed Certificates
$__________ Floating Rate Class B Asset Backed Certificates
TERMS AGREEMENT
Dated: April __, 1999
To: Charming Shoppes Receivables Corp.
Re: Underwriting Agreement dated April ___, 1999.
Underwriters: The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the
purposes of the above referenced Underwriting Agreement as such
Underwriting Agreement is incorporated herein and made a part
hereof.
Terms of Class A Certificates:
Initial Investor Interest Interest Rate or Formula Price to Public (1)
------------------------- ------------------------ -------------------
$ %
--------------- ---------
(1) Plus accrued interest at the applicable rate from _________, 1999.
Terms of Class B Certificates:
Initial Investor Interest Interest Rate or Formula Price to Public (1)
------------------------- ------------------------ -------------------
$ %
--------------- ---------
(1) Plus accrued interest at the applicable rate from __________, 1999.
Certificate Rating
Class A: "__________" Xxxxx'x Investors Service Inc.
"__________" Standard & Poor's Rating Group
Class B: "__________" Xxxxx'x Investors Service Inc.
Distribution Dates:_____________ .
Closing Date: April __, 1999.
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Trustee: First Union National Bank
Pooling and Servicing Agreement: Second Amended and Restated Pooling and
Servicing Agreement dated as of November 25, 1997 as amended by the First
Amendment dated as of ______________, 1999
Supplement: Series 1999-1 Supplement dated as of _______, 1999
Purchase Price:
The purchase price payable by the Underwriters for the Class A
Certificates covered by this Agreement will be the following percentage of the
principal amounts to be issued:
Per Certificate _____________ %
The purchase price payable by the Underwriters for the Class B
Certificates covered by this Agreement will be the following percentage of the
principal amounts to the issued:
Per Certificate _____________%
Registration Statement:
Underwriting Commissions, Concessions and Discounts:
The Underwriters' discounts and commissions, the concessions that
the Underwriters may allow to certain dealers, and the discounts that such
dealers may reallow to certain other dealers, each expressed as a percentage of
the principal amount of the Certificates, shall be as follows:
Underwriting
Discounts and Selling
Concessions Concessions Reallowance
----------- ----------- -----------
Class A % % %
Class B % % %
Location of Closing: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Payment for the Certificates: Wire transfer of immediately available funds.
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The Underwriters agree, severally and not jointly, subject to the
terms and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Certificates set
forth opposite their names on Schedule I hereto.
BEAR XXXXXXX & CO. INC.
as Representative of the Underwriters
named in Schedule I hereto
By:____________________________________
Name:
Title:
Accepted:
CHARMING SHOPPES RECEIVABLES CORP.
By:____________________________________
Name:
Title:
SPIRIT OF AMERICA, INC.
By:____________________________________
Name:
Title:
FASHION SERVICE CORP.
By: ____________________________________
Name:
Title:
35
SCHEDULE I
CLASS A
UNDERWRITERS
$________________ Principal Amount of Floating Rate Class A Asset
Backed Certificates.
Principal Amount
----------------
[Name of Underwriter] $
----------
==========
CLASS B
UNDERWRITERS
$________________ Principal Amount of Floating Rate Class B Asset
Backed Certificates.
Principal Amount
----------------
[Name of Underwriter] $
----------
==========
S-1
