PARTNERS FIRST CREDIT CARD MASTER TRUST
PARTNERS FIRST RECEIVABLES FUNDING, LLC
(Transferor)
PARTNERS FIRST HOLDINGS, LLC
(Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
June 22, 1998
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center, North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
Ladies and Gentlemen:
Partners First Receivables Funding, LLC, a Delaware limited
liability company (the "Company"), proposes to cause the Partners First
Credit Card Master Trust (the "Trust") to issue the Asset Backed Securities
designated in the applicable Terms Agreement (as hereinafter defined) (the
"Securities"). The Securities will be issued pursuant to an Amended and
Restated Pooling and Servicing Agreement dated as of June 26, 1998 (the
"Pooling and Servicing Agreement"), among the Company, as transferor (in
such capacity, the "Transferor"), Partners First Holdings, LLC, a Delaware
limited liability company ("Holdings"), as servicer (in such capacity, the
"Servicer"), and The Bank of New York, as trustee (in such capacity, the
"Trustee"), as supplemented by the applicable Series Supplement, having the
date stated in the applicable Terms Agreement, among the Transferor, the
Servicer and the Trustee (the "Supplement"). The Company is a wholly owned
subsidiary of Partners First Receivables, LLC ("PFR") and PFR is a wholly
owned subsidiary of Holdings. The Company, PFR and Holdings are referred to
collectively herein as the "Partners First Entities."
The assets of the Trust will include, among other things,
Receivables (as hereinafter defined) transferred by BankBoston (NH),
National Association and Xxxxxx Trust and Savings Bank to PFR and, in turn,
transferred by PFR to the Company and subsequently transferred by the
Company to the Trust pursuant to the Pooling and Servicing Agreement. The
Series of Securities designated in the applicable Terms Agreement will be
sold in a public offering through the underwriters listed on Schedule I to
the applicable Terms Agreement, one or more of which may act as
representative of such underwriters (any underwriter through which
Securities are sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the
"Underwriters"; and you and any other representative of the Underwriters
may be referred to herein as a "Representative"). Securities of any Series
sold to the Underwriters shall be sold pursuant to a Terms Agreement by and
among the Transferor, the Servicer and the Underwriters, a form of which is
attached hereto as Exhibit A (a "Terms Agreement"), which incorporates by
reference this Underwriting Agreement (this "Agreement"). The term
"applicable Terms Agreement" means the Terms Agreement among the
Transferor, the Servicer and the Underwriters, executed in connection with
the sale to the Underwriters of a particular Series of Securities.
Any Series of Securities sold pursuant to any Terms Agreement
may include the benefits of a letter of credit, cash collateral guaranty or
account, collateral interest, surety bond, insurance policy, spread
account, reserve account, yield supplement account or other similar
arrangement for the benefit of the Securityholders of such Series (a
"Credit Enhancement"). With respect to any such Credit Enhancement, the
Company or Holdings, or both, may enter into an agreement (the "Credit
Enhancement Agreement") with the provider of the Credit Enhancement (the
"Credit Enhancement Provider").
Each Security will represent a specified percentage undivided
interest in the Trust. The assets of the Trust include, among other things,
certain amounts due on a portfolio of MasterCard(R) and VISA(R) revolving
credit card accounts (the "Receivables"), and the benefit of the Credit
Enhancement, if any.
To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms 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 Series of Securities designated in the applicable Terms
Agreement and no other Series of Asset Backed Securities issued by the
Trust.
Whenever the Company determines to make an offering of
Securities, the Company and Holdings will enter into a Terms Agreement
providing for the sale of the applicable Securities to, and the purchase
and offering thereof by, the Underwriters. The Terms Agreement relating to
the Securities shall specify the type of Securities to be issued, the names
of the Underwriters participating in such offering (subject to substitution
as provided in Section 10 hereof), the amount of Securities which each such
Underwriter severally agrees to purchase, the price at which the Securities
are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. The Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between the Underwriters and the
Company. Each offering of Securities will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the
Company, Holdings and each Underwriter participating in the offering of
such Securities.
Section 1. Representations and Warranties. (a) Each of the
Company and Holdings, only as to itself and not jointly, represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company 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 "1933
Act"), a registration statement on Form S-3 (having the registration
number stated in the applicable Terms Agreement), including a form of
prospectus, relating to the Securities. Such registration statement,
as amended at the time it was declared effective by the Commission,
including all material incorporated by reference therein, and all
information contained in any Additional Registration Statement (as
hereinafter defined) and deemed to be part of such registration
statement as of the time such Additional Registration Statement (if
any), was declared effective by the Commission pursuant to the General
Instructions of the Form on which it was filed and, including all
information (if any) deemed to be a part of such registration
statement as of the time it was declared effective by the Commission
pursuant to Rule 430A(b) ("Rule 430A(b)") under the 1933 Act (such
registration statement, the "Initial Registration Statement"), has
been declared effective by the Commission. If any posteffective
amendment has been filed with respect to the Initial Registration
Statement prior to the execution and delivery of the applicable Terms
Agreement, the most recent such amendment has been declared effective
by the Commission. If (i) an additional registration statement,
including the contents of the Initial Registration Statement
incorporated by reference therein and including all information (if
any) deemed to be a part of such additional registration statement
pursuant to Rule 430A(b) (the "Additional Registration Statement")
relating to the Securities, has been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the 1933 Act and, if so
filed, has become effective upon filing pursuant to Rule 462(b), then
the Securities have been duly registered under the 1933 Act pursuant
to the Initial Registration Statement and such Additional Registration
Statement or (ii) an Additional Registration Statement is proposed to
be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to Rule 462(b), then upon such filing
the Securities will have been duly registered under the 1933 Act
pursuant to the Initial Registration Statement and such Additional
Registration Statement. If the Company does not propose to amend the
Initial Registration Statement or if an Additional Registration
Statement has been filed and the Company does not propose to amend it
and if any posteffective amendment to either such registration
statement has been filed with the Commission prior to the execution
and delivery of the applicable Terms Agreement, the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the 1933 Act or, in the case of
any Additional Registration Statement, Rule 462(b). The Initial
Registration Statement and any Additional Registration Statement are
hereinafter referred to collectively as the "Registration Statements"
and individually as a "Registration Statement." Copies of the
Registration Statements, together with any posteffective amendments,
have been furnished to the Underwriters. Holdings proposes to file
with the Commission pursuant to Rule 424 ("Rule 424") under the 1933
Act a supplement (the "Prospectus Supplement") to the form of
prospectus included in a Registration Statement (such prospectus, in
the form it appears in a Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule 424,
is hereinafter referred to as the "Basic Prospectus") relating to the
Securities and the plan of distribution thereof. The Basic Prospectus
and the Prospectus Supplement, together with any amendment thereof or
supplement thereto, are hereinafter referred to collectively as the
"Final Prospectus." Except to the extent that the Representative shall
agree to a modification, the Final Prospectus shall be in all
substantial respects in the form furnished to the Underwriters prior
to the execution of the relevant Terms Agreement, or to the extent not
completed at such time, shall contain only such material changes as
the Company has advised the Representative, prior to such time, will
be included therein.
(ii) The Initial Registration Statement, including such amendments
thereto as may have been required on the date of the applicable Terms
Agreement, and the Additional Registration Statement (if any),
relating to the Securities, have been filed with the Commission and
such Initial Registration Statement, as amended, and the Additional
Registration Statement (if any) have become effective. No stop order
suspending the effectiveness of the Initial Registration Statement or
the Additional Registration Statement (if any) has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of any of the Partners First Entities, threatened by the Commission.
(iii) The Initial Registration Statement conforms, and any
amendments or supplements thereto and the Final Prospectus will
conform, in all material respects to the requirements of the 1933 Act,
and do not and will not, as of the applicable effective date as to the
Initial Registration Statement and any amendment thereto, as of the
applicable filing date as to the Final Prospectus and any supplement
thereto, and as of the Closing Date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Additional Registration Statement (if any) and the Initial
Registration Statement conform in all material respects to the
requirements of the 1933 Act, and do not and will not, as of the
applicable effective date as to the Additional Registration Statement,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company or Holdings, as applicable, by or
on behalf of an Underwriter specifically for use in connection with
the preparation of a Registration Statement and the Final Prospectus.
(iv) Holdings is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Final Prospectus, and is duly qualified as a foreign limited
liability company and duly authorized to transact business and is in
good standing under the laws of each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of Holdings.
(v) The Company is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Final Prospectus, and is duly qualified as a foreign limited
liability company and duly authorized to transact business and is in
good standing under the laws of each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company and Holdings; and upon execution and delivery
of each Terms Agreement by the Company and Holdings, such Terms
Agreement shall have been duly authorized, executed and delivered by
the Company and Holdings.
(vii) As of the Closing Date (as defined in Section 2(b) hereof),
the representations and warranties of the Company, as Transferor, or
Holdings, as Servicer, as applicable, in the Pooling and Servicing
Agreement and the Supplement will be true and correct in all material
respects.
(viii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust is not required to be registered under the Investment Company
Act of 1940, as amended.
(ix) The Securities 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, 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 and the Supplement have been duly authorized by
each of the Company and Holdings and, when executed and delivered by
the Company, as Transferor, and Holdings, as Servicer, each of the
Pooling and Servicing Agreement and the Supplement will (assuming due
execution and delivery by the Trustee) constitute a valid and binding
agreement of the Company or Holdings, as applicable; the Securities,
the Pooling and Servicing Agreement and the Supplement conform to the
descriptions thereof in the Final Prospectus in all material respects;
and, if applicable, the Credit Enhancement Agreement has been duly
authorized, and when executed and delivered by the Trustee and Credit
Enhancement Provider, the Credit Enhancement Agreement will constitute
a valid and binding agreement of the Company and Holdings, as
applicable.
(x) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the securities or blue sky laws of
the various states), which is required for (A) the valid
authorization, issuance, sale and delivery of the Securities or (B)
the execution, delivery or performance of this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement or the Credit Enhancement Agreement by the Company or
Holdings, as applicable, has been received.
(xi) 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 the Company or Holdings, as applicable, 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 1933
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.
(xii) The Company and Holdings, as applicable, are not in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company or Holdings, as applicable. The execution and delivery of this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Supplement and the Credit Enhancement Agreement by the
Company or Holdings, as applicable, the issuance and delivery of the
Securities, the consummation by the Company or Holdings, as
applicable, of the transactions contemplated in this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement and the Registration Statement, and compliance by the
Company or Holdings with the terms of this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the Supplement
and the Credit Enhancement Agreement have been duly authorized by all
necessary corporate action on the part of the Company or Holdings, as
applicable, and do not and will not result in any violation of the
charter or bylaws of the Company or Holdings, as applicable, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or Holdings, as applicable, under
(A) any indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or Holdings, as
applicable, is a party or by which it may be bound or to which any of
its properties may be subject or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or Holdings, as applicable, or any of
their respective properties except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company or
Holdings, as applicable.
(xiii) Except as disclosed in the Final Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company or Holdings, as applicable, threatened
against or affecting the Company or Holdings, as applicable, that is
required to be disclosed in the Final Prospectus or that, in the final
outcome, could, in the judgment of the Company or Holdings, as
applicable, result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company or Holdings, as applicable, or that could
materially and adversely affect the properties or assets of the
Company or Holdings, as applicable, or that could adversely affect the
consummation of the transactions contemplated in this Agreement; the
aggregate liability or loss, if any, resulting from the final outcome
of all pending legal or governmental proceedings to which the Company
or Holdings, as applicable, is a party or which affect any of its
respective properties that are not described in the Final Prospectus,
including ordinary routine litigation incidental to its business,
would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company or Holdings, as applicable.
(xiv) Since the respective dates as of which information is given
in the Final Prospectus, except as otherwise stated therein, there has
not been (A) any material adverse change in the condition (financial
or otherwise) or in earnings, business affairs or business prospects
of the Company or Holdings, as applicable, or (B) any transaction
entered into by the Trust, the Company or Holdings, other than in the
ordinary course of business, that is material to the Trust or the
Securityholders.
(xv) Neither the Company nor Holdings nor any of their respective
affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes.
(b) Any certificate signed by any duly authorized officer of
the Company or Holdings, as applicable, and delivered to a Representative
or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company or Holdings, as applicable, to each Underwriter as
to the matters covered thereby.
Section 2. Purchase and Sale. (a) The several commitments of
the Underwriters to purchase Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and
conditions herein set forth. It is understood that the several Underwriters
propose to offer the Securities for sale to the public, which may include
selected dealers, as set forth in the Final Prospectus.
(b) Unless otherwise provided in the applicable Terms
Agreement, payment for Securities shall be made to the Company or to its
order by wire transfer of same day funds at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP in New York, New York at 10:00 A.M., New York
City time, on the Closing Date specified in the Terms Agreement, or at such
other time on the same or such other date as the Representative and the
Company may agree upon. The time and date of such payment for the
Securities as specified in the applicable Terms Agreement are referred to
herein as the "Closing Date."
(c) Unless otherwise provided in the applicable Terms
Agreement, payment for the Securities shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of
the Securities 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 (as
hereinafter defined) prior to the Closing Date. The Company shall make the
Securities available for inspection by the Representative in New York, New
York not later than one full Business Day prior to 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.
Section 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) If reasonably requested by you in connection
with the offering of the Securities, the Company will prepare a
preliminary prospectus supplement containing such information
concerning the Securities as you and the Company deem appropriate,
and immediately following the execution of the Terms Agreement,
the Company will prepare a Prospectus Supplement that complies
with the 1933 Act and that sets forth the number or principal
amount of Securities covered thereby, the names of the
Underwriters participating in the offering and the number or
principal amount of Securities which each Underwriter severally
has agreed to purchase, the name of each Underwriter, if any,
acting as representative in connection with the offering, the
price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price,
the selling concession and reallowance, if any, and such other
information concerning the Securities as you and the Company deem
appropriate in connection with the offering of the Securities. The
Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 under the 1933
Act and will furnish to the Underwriters named therein as many
copies of any preliminary prospectus supplement, the Basic
Prospectus and the Prospectus Supplement as you shall reasonably
request. In addition, to the extent that any Underwriter (i) has
provided to the Company Collateral Term Sheets or Series Term
Sheets (each as defined below) that such Underwriter has provided
to a prospective investor, the Company will file such Collateral
Term Sheets or Series Term Sheets as an exhibit to a report on
Form 8-K within two Business Days of its receipt thereof, or (ii)
has provided to the Company Structural Term Sheets or
Computational Materials (each as defined below) that such
Underwriter has provided to a prospective investor, the
Company will file or cause to be filed with the Commission a
report on Form 8-K containing such Structural Term Sheet and
Computational Materials, as soon as reasonably practicable after
the date of this Agreement, but in any event, not later than the
date on which the Final Prospectus is filed with the Commission
pursuant to Rule 424.
(b) If at any time when the Final Prospectus is
required by the 1933 Act to be delivered in connection with sales
of the Securities any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to amend the Registration
Statement or amend or supplement the Final Prospectus in order
that the Final Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend any Registration Statement
or amend or supplement the Final Prospectus in order to comply
with the requirements of the 1933 Act, the Company will promptly
prepare and file with the Commission, subject to Section 3(d),
such amendment or supplement as may be necessary to correct such
untrue statement or omission or to make the Registration Statement
or the Final Prospectus comply with such requirements.
(c) During the period when the Final Prospectus
is required by the 1933 Act to be delivered in connection with
sales of the Securities or during the entire period that any Class
of Securities is outstanding which were expected to be publicly
offered securities for purposes of ERISA, the Company will,
subject to Section 3(d), file promptly all documents required to
be filed with the Commission pursuant to Section 13, 14 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "1934
Act").
(d) During the period between the date of the
applicable Terms Agreement and the Closing Date, the Company will
inform you of its intention to file any amendment to any
Registration Statement, any supplement to the Final Prospectus or
any document that would as a result thereof be incorporated by
reference in the Final Prospectus, will furnish you with copies of
any such amendment, supplement or other document and will not file
any such amendment, supplement or other document in a form to
which you or your counsel shall reasonably object.
(e) During the period when the Final Prospectus
is required by the 1933 Act to be delivered in connection with the
sales of the Securities, the Company will notify you immediately,
and confirm the notice in writing, (i) of the effectiveness of any
amendment to any Registration Statement, (ii) of the mailing or
the delivery to the Commission for filing of any supplement to the
Final Prospectus or any document that would as a result thereof be
incorporated by reference in the Final Prospectus, (iii) of the
receipt of any comments from the Commission with respect to any
Registration Statement or the Prospectus, (iv) of any request by
the Commission for any amendment to any Registration Statement or
any supplement to the Final Prospectus or for additional
information relating thereto or to any document incorporated by
reference in the Final Prospectus and (v) of the issuance by the
Commission of any stop order suspending any effectiveness of any
Registration Statement, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceeding for any of such
purposes. The Company will use every reasonable effort to prevent
the issuance of any such stop order or of any order suspending
such qualification and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) The Company will furnish to the
Representative, without charge, two copies of each Registration
Statement as originally filed and of all amendments thereto,
whether filed before or after the Registration Statement becomes
effective, copies of all exhibits and documents filed therewith
and copies of all consents and certificates of experts as you may
reasonably request, and has furnished or will furnish to you, for
each other Underwriter, one copy of each Registration Statement as
originally filed and of each amendment thereto.
(g) The Company will cause the Trust to make
generally available to Securityholders 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 Initial
Registration Statement (or, if later, the effective date of the
Additional Registration Statement), which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the
Commission promulgated thereunder.
(h) The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such
states and other jurisdictions as you may designate and to
maintain such qualifications in effect for a period of not less
than one year from the effective date of the Terms Agreement
applicable to such Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company
will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been
qualified as provided above.
(i) 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 or Holdings, the Company or Holdings, as applicable,
shall furnish such documents and take any such other actions.
(j) For a period from the date of this Agreement
until the retirement of the Securities, or until such time as the
Underwriters shall cease to maintain a secondary market in the
Securities, whichever first occurs, Holdings will deliver to the
Underwriters (i) the annual Servicer's Certificate, (ii) the
annual independent certified public accountants' reports furnished
to the Trustee, (iii) all documents required to be distributed to
Securityholders of the Trust and (iv) all documents filed with the
Commission pursuant to the 1934 Act or any order of the Commission
thereunder, in each case as provided to the Trustee or filed with
the Commission, as soon as such statements and reports are
furnished to the Trustee or filed or, if an affiliate of the
Company is not the Servicer, as soon thereafter as practicable.
(k) Between the date of the applicable Terms
Agreement and the Closing Date or such other date as is set forth
in such Terms Agreement, the Company will not, without your prior
written consent, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, the
Securities set forth in such Terms Agreement or any similar
securities, other than as set forth in such Terms Agreement.
Section 4. Payment of Expenses; Reimbursement. Each of the
Company and Holdings, only as to itself and not jointly, covenants and
agrees with the Underwriters that they will:
(a) pay or cause to be paid all expenses and
costs incident to the performance of its obligations under this
Agreement and any applicable Terms Agreement, including without
limitation: (i) the costs of preparing, printing, filing and
reproducing each Registration Statement (including financial
statements and exhibits), as originally filed and as amended, any
preliminary prospectus, any preliminary prospectus supplement and
the Final Prospectus and any amendments or supplements thereto
(including the cost of furnishing copies thereof to the
Underwriters), (ii) the costs of preparing, printing and
distributing this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement, the Supplement and the Credit
Enhancement Agreement, (iii) the costs of printing, issuing and
delivering the Securities to the Underwriters, (iv) the fees and
disbursements of counsel for the Company and Holdings, as
applicable, and any accountants, (v) the reasonable expenses and
costs (not to exceed the amount specified in the applicable Terms
Agreement) incurred in connection with "blue sky" qualification of
the Securities for sale in those states designated by the
Underwriters, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in such connection
and in connection with any "blue sky" survey or memoranda, (vi)
any fees charged by any of the rating agencies for rating any of
the Securities, and (vii) any fees and expenses incurred in
connection with the listing of the applicable Securities on one or
more domestic or foreign stock exchanges (it being understood
that, except as specified in this Section 4 and in Sections 7 and
8 hereof, the Underwriters will pay all their own costs and
expenses, including the cost of printing any Agreement among
Underwriters, the fees of counsel to any Underwriter, transfer
taxes on resale of any Securities by them and advertising expenses
connected with any offers that they may make); and
(b) reimburse the Underwriters named in the
applicable Terms Agreement for all of their out of pocket
expenses, including the reasonable fees and disbursements of
counsel for such Underwriters, if such Terms Agreement is
terminated by you in accordance with the provisions of Section 6
hereof.
Notwithstanding the foregoing, the Underwriters may agree to
reimburse the Company or Holdings, as applicable, for certain expenses
incurred in connection with the issuance and distribution of the Securities
of any Series if so specified in the applicable Terms Agreement.
Section 5. Representations and Warranties of the
Underwriters. Each Underwriter severally represents, warrants, covenants
and agrees with the Company or Holdings, as applicable, that:
(a) It either (A) has not provided any potential
investor with a Collateral Term Sheet (that is required to be
filed with the Commission within two business days of first use
under the Terms of the Public Securities Association Letter as
described below), or (B) has, substantially contemporaneously with
its first delivery of such Collateral Term Sheet to a potential
investor, delivered such Collateral Term Sheet to the Company,
which Collateral Term Sheet, if any, is attached to this Agreement
as Exhibit B.
(b) It either (A) has not provided any potential
investor with a Structural Term Sheet or Computational Materials,
or (B) has provided any such Structural Term Sheet or
Computational Materials to the Company, which Structural Term
Sheets and Computational Materials, if any, are attached to this
Agreement as Exhibit C.
(c) It either (A) has not provided any potential
investor with a Series Term Sheet or (B) has provided any Series
Term Sheet to the Company, which Series Term Sheets, if any, are
attached to this Agreement as Exhibit D.
(d) Each Collateral Term Sheet bears a legend
indicating that the information contained therein will be
superseded by the description of the collateral contained in the
Prospectus Supplement and, except in the case of the initial
Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets.
(e) Each Structural Term Sheet and Series Term
Sheet and all Computational Materials bear a legend substantially
as follows (or in such other form as may be agreed prior to the
date of this Agreement):
This information does not constitute either an offer to
sell or a solicitation of an offer to buy any of the
securities referred to herein. Information contained
herein is confidential and provided for information only,
does not purport to be complete and should not be relied
upon in connection with any decision to purchase the
securities. This information supersedes any prior
versions hereof and will be deemed to be superseded by
any subsequent versions including, with respect to any
description of the securities or the underlying assets,
the information contained in the final Prospectus and
accompanying Prospectus Supplement. Offers to sell and
solicitations of offers to buy the securities are made
only by the final Prospectus and the related Prospectus
Supplement.
(f) It has not, and will not, without the prior
written consent of the Company, provide any Collateral Term
Sheets, Structural Term Sheets, Series Term Sheets or
Computational Materials, other than any referred to in clauses
(a), (b), or (c) above, to any investor after the date of this
Agreement.
(g) It has only issued or passed on and shall
only issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Securities to a person
who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements)(Exemptions) Order
1996 or who is a person to whom the document may otherwise
lawfully be issued or passed on, it has complied and shall 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 and if that Underwriter is an authorized person under the
Financial Services Xxx 0000, it has only promoted and shall only
promote (as that term is defined in Regulation 1.02 of the
Financial Services (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United Kingdom the scheme described in
the Prospectus if that person is of a kind described either in
Section 76(2) of the Financial Services Xxx 0000 or in Regulation
1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
For purposes of this Agreement, "Collateral Term
Sheets" and "Structural Term Sheets" shall have the respective
meanings assigned to them in the February 13, 1995 letter of
Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the Public
Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term
"Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the
information presented. "Computational Materials" has the meaning
assigned to it in the May 17, 1994 letter of Xxxxx & Wood on
behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which letter, and the SEC
staff's response thereto, were publicly available May 20, 1994).
"Series Term Sheet" has the meaning assigned to it in the April 4,
1996 letter of Xxxxxx & Xxxxxxx on behalf of Greenwood Trust
Company (which letter, and the SEC staff's response thereto, were
publicly available April 5, 1996).
Section 6. Conditions of Underwriters' Obligations. Except as
otherwise provided in the applicable Terms Agreement, the obligations of
the Underwriters to purchase and pay for the Securities pursuant to any
such Terms Agreement are subject to the accuracy of the representations and
warranties of the Company and Holdings contained herein at and as of the
date hereof, the date of the Terms Agreement and the applicable Closing
Date, or contained in certificates of any officer of the Company or
Holdings delivered pursuant to the provisions hereof, to the performance by
the Partners First Entities of each of their obligations hereunder and to
the following further conditions:
(a) At the applicable Closing Date, no stop
order suspending the effectiveness of the Registration Statement
and the Additional Registration Statement (if applicable) shall
have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or, to your
knowledge or to the knowledge of any of the Partners First
Entities, shall be contemplated by the Commission, and any request
on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel
for the Underwriters.
(b) At the applicable Closing Date, you shall
have received a signed opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP,
counsel for Holdings, dated as of the Closing Date, together with
signed or reproduced copies for each of the other Underwriters, in
form and substance satisfactory to you and counsel for the
Underwriters, with respect to general corporate matters.
(c) At the applicable Closing Date, the
Underwriters shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Company, one or more opinions,
in form and substance satisfactory to you and counsel for the
Underwriters, each dated the Closing Date, with respect to the
validity of the Securities, the Initial Registration Statement,
the Additional Registration Statement (if any), the Final
Prospectus, certain matters of the Uniform Commercial Code as
adopted in the State of Delaware and such other related matters as
the Underwriters may reasonably require, and each of the Company
and Holdings shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass on such
matters.
(d) At the applicable Closing Date, you shall
have received the favorable opinion of Xxxxxx, Xxxxxxxxxx &
Sutcliffe LLP, counsel for the Underwriters, dated as of the
Closing Date, with respect to such matters as you may require. In
giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the
State of New York, the Limited Liability Company Law of the State
of Delaware and the federal law of the United States, upon the
opinions of counsel satisfactory to you. Such counsel may also
state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of
officers of the Company and Holdings and certificates of public
officials.
(e) At the applicable Closing Date, you shall
have received the favorable opinion of Xxxxxx, Xxxxxx & Xxxxxx,
LLP, counsel for the Trustee, dated as of the Closing Date,
together with signed or reproduced copies of such opinion for each
of the other Underwriters, with respect to such matters as the
Underwriters may require.
(f) At the applicable Closing Date, there shall
not have been, since the date of the applicable Terms Agreement or
since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition (financial or otherwise) or in the earnings, business
affairs or business prospects of the Company or Holdings, whether
or not arising in the ordinary course of business, and you shall
have received separate certificates of an authorized officer of
the Company and Holdings, dated as of such Closing Date, to the
effect that (i) there has been no such material adverse change,
(ii) the representations and warranties of the Company or
Holdings, as applicable, contained in Section 1 hereof are true
and correct with the same force and effect as though expressly
made at and as of such Closing Date, (iii) the Company or
Holdings, as applicable, has complied with all agreements and
satisfied all conditions on its part to be complied with or
satisfied at or prior to such Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement has
been issued and, to the best knowledge of such person, no
proceedings for that purpose have been initiated or threatened by
the Commission.
(g) At the date of the Final Prospectus and at
the applicable Closing Date, Ernst & Young, L.L.P. (or such other
independent public accountants as shall be named in the applicable
Terms Agreement), certified independent public accountants for the
Partners First Entities, shall have furnished to the Underwriters
a letter or letters, dated respectively as of the date of the
Final Prospectus and as of the Closing Date, confirming that they
are certified independent public accountants within the meaning of
the 1933 Act and the 1934 Act and the respective 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 counsel for the
Underwriters.
(h) Subsequent to the date of the Terms
Agreement relating to such Securities, none of the following shall
have occurred: (i) a material adverse change in the financial
markets in the United States or the United States shall have
become engaged in the outbreak or escalation of hostilities
involving the United States or there has been a declaration by the
United States of a national emergency or a declaration of war,
(ii) a banking moratorium shall have been declared by either
Federal or New York State authorities, or (iii) trading in any
securities of the Partners First Entities shall have been
suspended or materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York Stock
Exchange shall have been suspended or materially limited, or
minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices shall have been required, by such
exchange or by order of the Commission or by any other
governmental authority, any of which events, in your reasonable
judgment, renders it inadvisable to proceed with the public
offering or the delivery of the Securities.
(i) The Underwriters shall have received
evidence satisfactory to them that, on or before the Closing Date,
UCC-1 financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware,
reflecting the interest of the Trustee in the Receivables and the
proceeds thereof.
(j) The Underwriters shall have received
evidence satisfactory to them that the Securities shall be rated
in accordance with the applicable Terms Agreements by the Rating
Agency and subsequent to the date of the applicable Terms
Agreement there shall not have occurred a downgrading in the
rating assigned to the Securities or any other securities issued
by the Company by any "nationally recognized statistical rating
agency", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review
its rating of the Securities or any of such other securities.
(k) Each other condition, if any, specified in
the applicable Terms Agreement to the obligation of the
Underwriters to purchase and pay for the Securities shall
have been satisfied.
If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by you by notice to
the Company at any time on or prior to the applicable Closing
Date, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections
7, 8 and 9 shall remain in effect.
Section 7. Indemnification. (a) The Company and Holdings each
agree to jointly and severally indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement as originally filed (or any amendment thereto)
and all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, or any
preliminary prospectus supplement, or the Final Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company or Holdings; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by the
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
provided, however, that (A) this indemnity agreement does not apply to any
loss, liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company or Holdings by any Underwriter through you expressly for use in
any Registration Statement as originally filed (or any amendment thereto)
or any preliminary prospectus, or any preliminary prospectus supplement, or
the Final Prospectus (or any amendment or supplement thereto) and (B) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of the Underwriter (or any person controlling any of the
Underwriters) from whom the person asserting any such loss, claim, damage
or liability purchased the Securities which are the subject thereof if the
Company or Holdings, as applicable, shall sustain the burden of proving (I)
such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented, excluding, in either case, documents
incorporated therein by reference) at or prior to the confirmation of the
sale of such Securities to such person in any case where such delivery is
required by the 1933 Act and (II) that the untrue statement or omission of
a material fact contained in such preliminary prospectus was corrected in
the Final Prospectus (or the Final Prospectus as supplemented). This
indemnity agreement will be in addition to any liability which the Company
or Holdings may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company and Holdings, their respective directors, each
officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company or Holdings within the meaning of
Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 7(a), as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in any Registration Statement
as originally filed (or any amendment thereto) or any preliminary
prospectus, or any preliminary prospectus supplement or the Final
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company or Holdings by
such Underwriter through you expressly for use in any Registration
Statement as originally filed (or any amendment thereto) or any preliminary
prospectus, or any preliminary prospectus supplement or the Final
Prospectus (or any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel and counsel to the
indemnifying parties) for all indemnified parties in connection with any
one action or similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 7
or Section 8 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 7(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of
such settlement.
Section 8. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided
for in Section 7 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and Holdings on the one hand and the Underwriters on the other
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by
the Company or Holdings on the one hand and one or more of the Underwriters
on the other, as incurred, in such proportions that (a) the Underwriters
are responsible for that portion represented by the percentage that results
from dividing the underwriting discount applicable to the Securities by the
net proceeds of the offering of the Securities (before deducting expenses)
received by the Company and (b) the Company and Holdings are responsible
for the balance; provided, however, that (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Securities purchased by such
Underwriter hereunder and under the applicable Terms Agreement and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Company, Holdings and the Underwriters each agree that it would not be
equitable if the amount of such contribution were determined by pro rata or
per capita allocation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and
each director of each of the Company and Holdings, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or Holdings within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company and
Holdings, respectively. The Underwriters respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
amount of Securities set opposite their respective names in Schedule I to
the applicable Terms Agreement.
Section 9. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements
and other statements of the Company, Holdings, the Underwriters and their
respective officers set forth in or made pursuant to this Agreement and any
Terms Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company,
Holdings or any Underwriter or controlling person and shall survive
delivery of any payment for the Securities. The provisions of Sections 4, 7
and 8 hereof shall survive the termination or cancellation of this
Agreement.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters participating in an offering of Securities
shall fail at the applicable Closing Date to purchase the Securities which
it or they are obligated to purchase hereunder and under the applicable
Terms Agreement (the "Default Securities"), you shall have the right,
within 36 hours thereafter, to purchase all, but not less than all, of the
Default Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if however, you have not completed such arrangements
within such 36 hour period, then:
(a) if the amount of Default Securities does not
exceed 10% of the amount of Securities to be purchased pursuant to
such Terms Agreement, the nondefaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all
nondefaulting Underwriters, or
(b) if the amount of Default Securities exceeds
10% of the amount of Securities to be purchased pursuant to such
Terms Agreement, the applicable Terms Agreement shall terminate
without liability on the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default that does not result in the
termination of the applicable Terms Agreement, either you or the Company
shall have the right to postpone the applicable Closing Date for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications
under this Agreement and any Terms Agreement shall be in writing and shall
be deemed to have been duly given if delivered, mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall
be directed to you at the address set forth on the first page hereof, or in
respect of any Terms Agreement, to such other person and place as may be
specified therein; notices to the Company shall be directed to it at
Partners First Receivables Funding, LLC, 000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000; notices to Holdings shall be directed to it
at Partners First Holdings LLC, 000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000.
Section 12. Parties. This Agreement herein set forth and any
Terms Agreement is made solely for the benefit of any Underwriter which
becomes a party to a Terms Agreement, the Company, Holdings and, to the
extent expressed, any person controlling the Company or Holdings or any
such Underwriter, and the directors of the Company, its officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser of the Securities, as such purchaser, from any
Underwriter. All of the obligations of any Underwriters hereunder and under
any Terms Agreement are several and not joint.
Section 13. Governing Law and Time. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the
same agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement among the Company, Holdings
and each Underwriter in accordance with its terms.
Very truly yours,
PARTNERS FIRST HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PARTNERS FIRST RECEIVABLES FUNDING, LLC
By: /s/ Xxxx X. Xxxxxxx
_______________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Confirmed and accepted as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. XxXxxx
________________________
Name: Xxxxxx X. XxXxxx
Title: Director
For themselves and the other several Underwriters named
in Schedule I to the applicable Terms Agreement
EXHIBIT A
PARTNERS FIRST CREDIT CARD MASTER TRUST
$_____________ CLASS __ SERIES ____-___ ASSET BACKED SECURITIES
TERMS AGREEMENT
Dated: __________, ____
To: Partners First Holdings, LLC
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Partners First Receivables Funding, LLC
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Re: Underwriting Agreement dated June 22, 1998
Ladies and Gentlemen:
We (the "Representative") understand that Partners First
Receivables Funding, LLC, a Delaware limited liability company (the
"Company"), proposes to cause $____________ of Class __ Series ____-__
Asset Backed Securities (the "Securities") to be issued by Partners First
Credit Card Master Trust. This Terms Agreement (this "Agreement") is a
"Terms Agreement" within the meaning of the Underwriting Agreement dated
June 22, 1998 (the "Underwriting Agreement"), among you and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, as representative, which is hereby
incorporated by reference herein. Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriters named
below (the "Underwriters") offer to purchase, severally and not jointly,
the Securities.
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 the Securities:
Initial Invested Interest Rate Price to
Class Amount or Formula Public(1)
----- ----------------- ------------- -----------
$ % ---------%
-----------------
(1) Plus accrued interest at the applicable rate from ____ __, ____.
Distribution Dates:
Security Ratings:
____ by [Standard & Poor's]
____ by [Fitch IBCA, Inc.]
____ by [Xxxxx'x Investors Service, Inc.]
____ by [Duff & Xxxxxx Credit Rating Company]
Credit Enhancement:
Trustee: The Bank of New York
Pooling and Servicing Agreement: Amended and Restated Pooling and Servicing
Agreement, dated as of [June 26, 1998], among Partners First Receivables
Funding, LLC, as Transferor, Partners First Holdings, LLC, as Servicer, and
The Bank of New York, as Trustee.
Supplement: Series ____-__ Supplement, dated as of ________, ____, among
Partners First Receivables Funding, LLC, as Transferor, Partners First
Holdings, LLC, as Servicer, and The Bank of New York, as Trustee.
Purchase Price: The purchase price payable by the Underwriters for the
Securities covered by this Agreement will be the following percentage of
the initial invested amounts to be issued:
Per Security: __________%
Registration Statement: Registration Nos. ___________ and ____________
Underwriting Commissions, Concessions and Discounts: The Underwriters'
discount, 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 initial invested amount of
the Securities, shall be as follows:
Underwriting Selling
Discount Concessions Reallowance
-----% -----% -----%
-----% -----% -----%
Closing Date: __________, _____, ____ a.m./p.m., New York City time
Location of Closing: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Payment for the Securities: Wire transfer of same day funds
Blue Sky Fees: Up to $__________
Opinion Modifications:
Other Securities Being Offered Concurrently:
Other Conditions to Closing Under Section 6(k):
Currency:
Redemption Provisions:
Listing Requirement:
Reimbursement of Expenses:
Other Terms and Conditions:
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
If the foregoing is in accordance with your understanding of
the agreement among the Underwriters, the Company and Holdings, please sign
and return to the undersigned a counterpart hereof, whereupon this
instrument, along with all counterparts and together with the Underwriting
Agreement, shall be a binding agreement among the Underwriters named
herein, the Company and Holdings in accordance with its terms and the terms
of the Underwriting Agreement.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------
Acting on behalf of themselves and the
other named Underwriters
Confirmed and accepted as of the
date first above written:
PARTNERS FIRST HOLDINGS, LLC
By: ________________________________________
Name:
Title:
PARTNERS FIRST RECEIVABLES FUNDING, LLC
By: ________________________________________
Name:
Title:
SCHEDULE I
UNDERWRITERS
$______________ Initial Invested Amount of Class __ Series
____-__ Asset Backed Securities
Underwriters Initial Invested Amount of Securities
$
TOTAL $
EXHIBIT B
Collateral Term Sheets
EXHIBIT C
Structural Term Sheets and Computational Materials
EXHIBIT D
Series Term Sheets
