DILLARD CREDIT CARD MASTER TRUST I
DILLARD ASSET FUNDING COMPANY
(Transferor)
DILLARD NATIONAL BANK
(Servicer)
DILLARD NATIONAL BANK
(formerly Mercantile Stores National Bank)
DILLARD'S INC.
UNDERWRITING AGREEMENT
(Standard Terms)
June 19, 2000
Chase Securities Inc.
As Underwriter and as
Representative of the
several Underwriters
named in the
Terms Agreement
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Dillard Asset Funding Company ("DAFC"), a Delaware business trust, was
formed pursuant to that certain Trust Agreement, dated as of August 14, 1998, by
and among Condev Nevada, Inc., a Nevada corporation, as depositor, Chase
Manhattan Bank USA, N.A., a national banking association, as successor in
interest to Chase Manhattan Bank Delaware, as owner trustee, and certain
administrators thereof. DAFC proposes to cause the Dillard Credit Card Master
Trust I (the "Trust") to issue the Asset Backed Certificates designated in the
applicable Terms Agreement (as hereinafter defined) (the "Certificates"). The
Certificates will be issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") described in the applicable Terms Agreement
among DAFC, as Transferor (the "Transferor"), Dillard National Bank ("DNB"), as
Servicer (the "Servicer"), and the trustee identified in the applicable Terms
Agreement (the "Trustee"), as supplemented by the Series Supplement having the
date stated in the applicable Terms Agreement, among the Transferor, the
Servicer and the Trustee (the "Supplement"). The Series of Certificates
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
(the "Underwriters"). Certificates of any Series sold to the Underwriters shall
be sold pursuant to a Terms Agreement by and among DAFC, DNB, Dillard National
Bank (formerly
Mercantile Stores National Bank) ("DNB-La."), Dillard's Inc. (the "Corporation")
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," which may include the applicable Terms Agreement if the context so
requires). Any Series of Certificates 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 or other similar arrangement for the benefit of the Certificateholders
of such Series ("Credit Enhancement"). With respect to any such Credit
Enhancement, the Corporation, DNB, DNB-La. or DAFC may enter into an agreement
(the "Credit Enhancement Agreement") by and between such party(ies) and the
provider of the Credit Enhancement (the "Credit Enhancement Provider"). Each
Certificate 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 private label revolving credit card accounts transferred to
DAFC (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 Certificates designated in
the applicable Terms Agreement and no other Series of Asset Backed Certificates
issued by the Trust.
Section 1. Representations and Warranties of the Corporation,
DNB, DNB-La. and DAFC. (A) Upon the execution of the applicable Terms
Agreement, each of the Corporation, DNB, DNB-La. and DAFC represents and
warrants to the Underwriters that as of the date of such Terms Agreement:
(a) DAFC 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-3 (having the registration number stated in the applicable Terms
Agreement), including a form of prospectus, relating to the Certificates. Such
registration statement, as amended at the time it was declared effective by the
Commission, including all material incorporated by reference therein, including
all information contained in any Additional Registration Statement (as defined
herein) 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 Act (such
registration statement, the "Initial Registration Statement") has been
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declared effective by the Commission. If any post-effective 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 Certificates
has been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under
the Act and, if so filed, has become effective upon filing pursuant to Rule
462(b), then the Certificates have been duly registered under the 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 Certificates will have been
duly registered under the Act pursuant to the Initial Registration Statement and
such Additional Registration Statement. If DAFC does not propose to amend the
Initial Registration Statement or, if an Additional Registration Statement has
been filed and DAFC does not propose to amend it and if any post-effective
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 that has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) under the Act or, in the case of
any Additional Registration Statement, Rule 462(b) will be effective. 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 post-effective amendments have been furnished to
the Underwriters. DAFC proposes to file with the Commission pursuant to Rule 424
("Rule 424") under the 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 Certificates and the plan of
distribution thereof. The Basic Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, is hereinafter
referred to as the "Final Prospectus." Except to the extent that the
Underwriters shall agree in writing 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 DAFC has
advised the Underwriters, prior to such time, will be included therein. Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 424 is hereinafter called a "Preliminary Final Prospectus";
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(b) 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
Certificates, 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 Corporation, DNB, DNB-La. or DAFC, threatened by the
Commission;
(c) 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 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 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 apply only during the period that a prospectus relating to
the Certificates is required to be delivered under the Act by dealers in
connection with the initial public offering of such Certificates (such period
being hereinafter sometimes referred to as the "prospectus delivery period");
provided, further, 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 DAFC by or on behalf of the Underwriters specifically
for use in connection with the preparation of a Registration Statement and the
Final Prospectus;
(d) As of the Closing Date, the representations and warranties of
DAFC, as Transferor, and DNB, as Servicer, in the Pooling and Servicing
Agreement and the Supplement will be true and correct, except to the extent such
representations and warranties related to a prior date;
(e) As of the Closing Date, (i) the representations and warranties
of DNB and DAFC, in the Receivables Purchase Agreement (the "DNB Purchase
Agreement"), dated as of August 14, 1998, pursuant to which certain
Receivables were transferred to DAFC by DNB, will be true and correct and
(ii) the representations and warranties of DNB-La. and DAFC, in the
Receivables Purchase Agreement (the "DNB-La. Purchase Agreement" and,
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collectively with the DNB Purchase Agreement, the "Purchase Agreements"), dated
as of August 14, 1998, pursuant to which certain Receivables were transferred to
DAFC by DNB-La., will be true and correct, except to the extent such
representations and warranties related to a prior date;
(f) DAFC has been duly organized and is validly existing as a business
trust in good standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire, own
and sell the Receivables;
(g) 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, 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
and, when executed and delivered by DAFC, as Transferor, 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 DAFC; the Purchase
Agreements, the Certificates, the Pooling and Servicing Agreement and the
Supplement conform to the descriptions thereof in the Final Prospectus in all
material respects; and, if applicable, when executed by DAFC, as Transferor, the
Credit Enhancement Agreement will (assuming due execution and delivery by the
Trustee and Credit Enhancement Provider) constitute a valid and binding
agreement of DAFC;
(h) 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 Corporation, DNB, DNB-La. or DAFC for the consummation of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the Purchase
Agreements, 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;
(i) None of the Corporation, DNB, DNB-La. or DAFC is in violation of
its organizational documents 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, in the Pooling and Servicing Agreement, the Supplement or the Purchase
Agreements. The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the Pooling
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and Servicing Agreement, the Supplement, the Purchase Agreements and the Credit
Enhancement Agreement, and the issuance and sale of the Certificates and
compliance with the terms and provisions thereof will not result in a breach or
violation of any of the terms of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any court having
jurisdiction over such party or any of its properties or any material agreement
or instrument to which the Corporation, DNB, DNB-La. or DAFC is a party or by
which such party is bound or to which any of the properties of such party is
subject, or the organizational documents of such party except for any such
breaches or violations or defaults as would not individually or in the aggregate
have a material adverse effect on the transactions contemplated herein, in the
Pooling and Servicing Agreement, the Supplement or the Purchase Agreements;
(j) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Corporation, DNB, DNB-La. and DAFC, threatened to which any of the
Corporation, DNB, DNB-La. or DAFC or their subsidiaries is or may be a party or
to which any property of the Corporation, DNB, DNB-La. or DAFC or their
subsidiaries are or may be the subject which, if determined adversely to the
Corporation, DNB, DNB-La. or DAFC, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the Corporation,
DNB, DNB-La. or DAFC's credit card business or on 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 Initial Registration
Statement or the Additional Registration Statement (if any) or to be described
in the Initial Registration Statement, the Additional Registration Statement (if
any) or the Basic Prospectus which are not filed or described as required;
(k) Each of this Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Corporation, DNB, DNB-La.
and DAFC;
(l) Each of the Pooling and Servicing Agreement, the Supplement, the
Certificates and the Receivables conforms in all material respects with the
descriptions thereof contained in the Registration Statement and the Final
Prospectus;
(m) Deloitte & Touche LLP, who have audited certain financial
statements of the Corporation, DNB and DNB-La., are independent public
accountants as required by the Act;
(n) Neither the Trust nor the Transferor is an "investment company" or
under the "control" of an "investment company" within the meaning thereof as
defined in the Investment Company Act of 1940, as amended;
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(o) Any taxes, fees and other governmental charges imposed upon the
Transferor or on the assets of the Trust in connection with the execution,
delivery and issuance by the Transferor of this Agreement, the Pooling and
Servicing Agreement, the Supplement or the Certificates and which are due at or
prior to each Closing Date have been or will have been paid by or on behalf of
the Transferor at or prior to such Closing Date;
(p) Neither the Pooling and Servicing Agreement nor the Supplement
needs to be qualified under the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder;
(q) Each of the Corporation, DNB, DNB-La. and DAFC possesses all
material licenses, certificates, authorizations and permits issued by, and has
made all declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies which are necessary or desirable for the
ownership of its respective properties or the conduct of its respective
businesses as described in the Final Prospectus, except where the failure to
possess or make the same would not have, singularly or in the aggregate, a
material adverse effect on the Receivables, the Certificates or its condition
(financial or otherwise), results of operations, business or prospects;
(r) Except as disclosed in the Registration Statement and the
Prospectus, none of the Corporation, DNB, DNB-La. or DAFC (i) has any material
lending or other relationship with any bank or lending affiliate of any
Underwriter, or (ii) intends to use any of the proceeds from the sale of the
Certificates to repay any outstanding debt owed to any affiliate of any
Underwriter;
(s) DNB has been duly organized and is validly existing as a national
banking association in good standing under the laws of the United States of
America, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and is duly qualified to do business and is in good standing in each
state of the United States where the nature of its business requires it to be so
qualified;
(t) DNB-La. has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and is duly qualified to do business and is in good
standing in each state of the United States where the nature of its business
requires it to be so qualified; and
(u) The Corporation has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its
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business as such properties are presently owned and such business is presently
conducted, and is duly qualified to do business and is in good standing in each
state of the United States where the nature of its business requires it to be so
qualified.
Section 2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the covenants, representations and warranties herein set forth,
DAFC agrees to sell to the Underwriters, and the Underwriters agree to purchase
from DAFC, the principal amount of Certificates set forth opposite each
Underwriter's name in Schedule I to the applicable Terms Agreement. The purchase
price for the Certificates shall be as set forth in the applicable Terms
Agreement.
DAFC acknowledges and agrees that Chase Securities Inc. may sell
Certificates to any of its affiliates, and that any such affiliates may sell
such Certificates to Chase Securities Inc.
Section 3. Delivery and Payment. Unless otherwise provided in the
applicable Terms Agreement, payment for Certificates shall be made to DAFC or to
its order by wire transfer of same day funds at the offices of Simpson Thacher &
Bartlett in New York, New York at 10:00 A.M., New York City time, on the Closing
Date (as hereinafter defined) specified in the Terms Agreement, or at such other
time on the same or such other date as the Underwriters and DAFC may agree upon.
The time and date of such payment for the Certificates as specified in the
applicable Terms Agreement 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 Underwriters of the
Certificates registered in the name of Cede & Co. as nominee of The Depository
Trust Company and in such denominations as the Underwriters shall request in
writing not later than two full Business Days prior to the Closing Date. DAFC
shall make the Certificates available for inspection by the Underwriters in New
York, New York not later than one full Business Day prior to the Closing Date.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public, which
may include selected dealers, as set forth in the Final Prospectus.
Section 5. Covenants of the Dillard's Entities. Each of the
Corporation, DNB, DNB-La. and DAFC covenants and agrees with the Underwriters
that upon the execution of each Terms Agreement:
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(a) Promptly following the execution of such Terms Agreement, DAFC
will prepare a Prospectus Supplement setting forth the amount of Certificates
covered thereby and the terms thereof not otherwise specified in the Basic
Prospectus, the price at which such Certificates are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances, and such other information as DAFC deems appropriate. DAFC will file
such Prospectus Supplement with the Commission pursuant to Rule 424 within the
time prescribed therein and will provide evidence satisfactory to the
Underwriters of such timely filing. In addition, to the extent that the
Underwriters (i) have provided to DAFC Collateral Term Sheets (as defined below)
that the Underwriters have provided to prospective investors, DAFC will file
such Collateral Term Sheets as an exhibit to a report on Form 8-K within two
business days of its receipt thereof, or (ii) have provided to DAFC Structural
Term Sheets or Computational Materials (each as defined below) that such
Underwriters have provided to a prospective investor, DAFC 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 such Terms 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) During the prospectus delivery period, before filing any amendment
or supplement to the Initial Registration Statement, the Additional Registration
Statement (if any) or the Final Prospectus, DAFC will furnish to the
Underwriters copies of the proposed amendment or supplement for review and will
not file any such proposed amendment or supplement to which any Underwriter
reasonably objects.
(c) During the prospectus delivery period, the Corporation, DNB,
DNB-La. and DAFC will advise the Underwriters promptly after it receives notice
thereof, (i) when any amendment to any Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment or supplement
to any Registration Statement or the Final Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the initiation or
threatening of any proceeding for that purpose, (iv) of the issuance by the
Commission of any order preventing or suspending the use of any Final Prospectus
relating to the Certificates or the initiation or threatening of any proceedings
for that purpose and (v) 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 will use
its best efforts to prevent the issuance of any such stop order or notification
and, if any is issued, will promptly use its best efforts to obtain the
withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Final Prospectus as then supplemented
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would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the Act,
DAFC promptly will prepare and file or cause to be prepared and filed with the
Commission, an amendment or a supplement which will correct such statement or
omission or effect such compliance.
(e) DAFC will endeavor to qualify the Certificates for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request and will continue such qualification in effect so long
as reasonably required for distribution of the Certificates; provided, however,
that DAFC shall not be obligated to qualify to do business in any jurisdiction
in which it is not currently so qualified; and provided, further, that DAFC
shall not be required to file a general consent to service of process in any
jurisdiction.
(f) DAFC will promptly furnish to each Underwriter, without charge,
copies of each Registration Statement (including exhibits thereto), one of which
will be signed, and to each Underwriter conformed copies of each Registration
Statement (without exhibits thereto) and, during the prospectus delivery period,
copies of any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto, in each case, in such quantities as each Underwriter may
reasonably request.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, or until such time as the Underwriters shall cease to
maintain a secondary market in the Certificates, whichever first occurs, DAFC
will deliver to each Underwriter (i) the annual statements of compliance, (ii)
the annual independent certified public accountants' reports furnished to the
Trustee, (iii) all documents required to be distributed to Certificateholders of
the Trust and (iv) all documents filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange 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 DAFC is not the Servicer, as soon
thereafter as practicable.
(h) DAFC will pay all expenses incident to the performance of its
obligations under this Agreement, including without limitation: (i) expenses of
preparing, printing and reproducing each Registration Statement, the Preliminary
Final Prospectus, the Final Prospectus, this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the Supplement, any Credit
Enhancement Agreement and the Certificates, (ii) the cost of delivering the
Certificates and the Final Prospectus to the Underwriters, (iii) any fees
charged by investment rating agencies for the rating of such Certificates, (iv)
the reasonable expenses and costs incurred
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in connection with "blue sky" qualification of the Certificates for sale in
those states designated by the Underwriters and the printing of memoranda
relating thereto (including fees and disbursements of counsel for the
Underwriters); and (v) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc. and with
respect to any stock exchange listing.
(i) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Corporation, DNB, DNB-La. or DAFC, such party shall
furnish such documents and take any such other actions.
(j) DAFC will cause the Trust to make generally available to
Certificateholders and to the Underwriters 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 Act and Rule 158 of the Commission promulgated thereunder.
(k) For a period of 30 days from the date of each Final Prospectus,
DAFC will not offer, sell, contract to sell or otherwise dispose of any credit
card asset-backed securities transferred to DAFC which are substantially similar
to the Certificates offered thereby without the prior written consent of each
Underwriter or unless such securities are referenced in the Terms Agreement.
Section 6. Representations and Warranties of the Underwriters.
Each Underwriter represents, warrants, covenants and agrees with the
Corporation, DNB, DNB-La. and DAFC that:
(a) It either (A) will not provide any potential investor with a
Collateral Term Sheet (which 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) will, substantially
contemporaneously with its first delivery of such Collateral Term Sheet to a
potential investor, deliver such Collateral Term Sheet to DAFC.
(b) It either (A) will not provide any potential investor with a
Structural Term Sheet or Computational Materials, or (B) will timely provide any
such Structural Term Sheet or Computational Materials to DAFC.
(c) It either (A) will not provide any potential investor with a
Series Term Sheet or (B) will timely provide any Series Term Sheet to DAFC.
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(d) Each Collateral Term Sheet will bear 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 will 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 agrees to provide to DAFC any accountants' letters obtained
relating to the Collateral Term Sheets, Structural Term Sheets and Computational
Materials, which accountants' letters shall be addressed to DAFC.
(g) It has not, and will not, without the prior written consent of
DAFC, provide any Collateral Term Sheets, Structural Term Sheets, Series Term
Sheets or Computational Materials to any investor after the date of the related
Terms Agreement.
(h) 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 Certificates to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements)(Exemptions) Order 1996
or who is a person to whom the document may otherwise lawfully be issued or
passed on, it is a person of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996, it has
complied and shall comply with all applicable provisions of the Financial
Services Act 1986 and the Public Offers of Securities Regulations 1995 with
respect to anything done by it in relation to the Certificates in, from or
otherwise
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involving the United Kingdom, and if that Underwriter is an authorized person
under Chapter III of Part I of the Financial Services Act 1986, 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
Act 1986 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, Steen & Hamilton 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 Brown &
Wood on behalf of Kidder, Peabody & 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 Latham & Watkins on
behalf of Greenwood Trust Company (which letter, and the SEC staff's response
thereto, were publicly available April 5, 1996).
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Corporation, DNB, DNB-La. and DAFC contained herein, to the
accuracy of the statements of such parties made in any certificates pursuant to
the terms hereof, to the performance by such parties of their respective
obligations hereunder and under the applicable Terms Agreement and to the
following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 in the manner and within the applicable time period
prescribed for such filing by the rules and regulations of the Commission under
the Act and in accordance with Section 5(a) of this Agreement; and, as of the
Closing Date, no stop order suspending the effectiveness of any Registration
Statement shall have been issued, and no proceedings for such purpose shall have
been instituted or threatened by the Commission; and all requests for additional
information from the Commission with respect to any Registration Statement shall
have been complied with to the reasonable satisfaction of the Representative.
(b) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting particularly the business or properties of the Corporation,
-13-
DNB, DNB-La. or DAFC which materially impairs the investment quality of the
Certificates; (ii) any suspension or material limitation of trading of
securities generally on the New York Stock Exchange or the American Stock
Exchange; (iii) a declaration of a general moratorium on commercial banking
activities in New York by either Federal or New York State authorities; or (iv)
any material outbreak, declaration or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representative,
impracticable to market the Certificates on the terms specified herein and the
applicable Terms Agreement.
(c) The Underwriters shall have received a certificate of a Vice
President or other proper officer of each of the Corporation, DNB, DNB-La. and
DAFC, dated the Closing Date, in which such officer, to the best of his
knowledge, shall state that (i) the representations and warranties of the
Corporation, DNB, DNB-La. and DAFC in this Agreement are true and correct in all
material respects, (ii) the Corporation, DNB, DNB-La. and DAFC have complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, (iii) no stop order suspending the
effectiveness of a Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened by the Commission and (iv)
the Final Prospectus does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) Each of the Corporation, DNB, DNB-La. and DAFC shall have
furnished to the Underwriters the opinions of Simpson Thacher & Bartlett,
counsel for such parties, dated the Closing Date, in substantially the forms
attached hereto as Exhibits B through __, with only such changes as shall in
form and substance be satisfactory to the Representative and counsel for the
Underwriters.
(e) The Underwriters shall have received from Cadwalader, Wickersham &
Taft, counsel for the Underwriters, one or more opinions, each dated the Closing
Date, with respect to the validity of the Certificates, the Initial Registration
Statement, the Additional Registration Statement (if any), the Final Prospectus,
and such other related matters as the Representative may reasonably require, and
DAFC shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass on such matters.
(f) The Underwriters shall have received from local counsel one or
more opinions, each dated the Closing Date, with respect to certain matters
regarding the Uniform Commercial Code and state income and franchise tax, as
adopted in each of the relevant jurisdictions, each in form and substance
satisfactory to the Representative and counsel for the Underwriters.
-14-
(g) The Underwriters shall have received from Richards, Layton &
Finger, counsel to DAFC, an opinion, dated the Closing Date, with respect to
certain corporate matters, in form and substance satisfactory to the
Representative and counsel for the Underwriters.
(h) At the date of the applicable Terms Agreement and at the Closing
Date, Deloitte & Touche LLP (or such other independent public accountants as
shall be named in the applicable Terms Agreement), certified independent public
accountants for DAFC, shall have furnished to the Underwriters a letter or
letters, dated respectively as of the date of the applicable Terms Agreement and
as of the Closing Date confirming that they are certified independent public
accountants within the meaning of the Act and the Exchange 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.
(i) The Underwriters shall receive evidence satisfactory to it that,
on or before the Closing Date, UCC-1 financing statements have been or are being
filed in the appropriate office or offices in each relevant jurisdiction,
reflecting the interest of the Trustee in the Receivables and the proceeds
thereof.
(j) The Underwriters shall have received from Pryor Cashman Sherman &
Flynn LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the
effect that:
(i) The Trustee has been duly organized and is validly existing as a
banking corporation under the laws of New York and has the corporate power
and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform
the duties and obligations of trustee under, and to accept the trust
contemplated by, the Pooling and Servicing Agreement, the Supplement and
the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement
and the Credit Enhancement Agreement 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, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law).
-15-
(iv) The Certificates have been duly executed and
authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the
Pooling and Servicing Agreement, the Supplement and the Credit Enhancement
Agreement nor the consummation of any of the transactions contemplated
thereby require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to, any
governmental authority or agency under any existing federal or state law
governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing
Agreement, the Supplement and the Credit Enhancement Agreement by the
Trustee and the performance by the Trustee of their respective terms do not
conflict with or result in a violation of (x) any law or regulation of any
governmental authority or agency under any existing federal or state law
governing the banking or trust powers of the Trustee, or (y) the
Certificate of Incorporation or By-laws of the Trustee.
(k) The Underwriters shall be named as recipients or shall have
received reliance letters, if applicable, with respect to any opinions delivered
to DAFC by counsel of the Credit Enhancement Provider, if any.
(l) The Underwriters shall have received evidence satisfactory to them
that the Certificates shall be rated in accordance with the applicable Terms
Agreement by the Rating Agency.
(m) The Underwriters shall have received a certificate of a Vice
President or other proper officer of the Servicer, dated the Closing Date, in
which such officer, to the best of his or her knowledge, shall state that the
representations and warranties of the Servicer in the Pooling and Servicing
Agreement and the Supplement are true and correct.
(n) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters in all material respects and the Underwriters and counsel for the
Underwriters shall have received such information, certificates and documents as
the Underwriters or counsel for the Underwriters may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel,
-16-
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Corporation and DAFC in
writing or by telephone or facsimile confirmed in writing.
Section 8. Reimbursement of Underwriters' Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 (other than the condition
set forth in paragraph (b) of Section 7) is not satisfied, or because of any
refusal, inability or failure on the part of the Corporation, DNB, DNB-La. or
DAFC to perform any agreement herein or comply with any provision hereof other
than by reason of a default by the Underwriters, the Corporation, DNB, DNB-La.
and DAFC will jointly and severally reimburse the Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel) that shall
have been incurred by it in connection with the proposed purchase and sale of
the Certificates and upon demand such parties shall pay the full amount thereof
to the Representative.
Section 9. Indemnification and Contribution. (a) DAFC agrees to
indemnify and hold harmless the Underwriters, each of the directors thereof,
each of the officers who are involved in the Offering and each person, if any,
who controls each Underwriter within the meaning of the Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or any other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement as originally filed
or in any amendment thereof, or in any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by it in connection with
investigating or preparing to defend or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that (i)
DAFC will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any of such documents in reliance upon and in conformity with written
information furnished to DAFC by or on behalf of the Underwriters specifically
for use therein, and (ii) such indemnity with respect to any Preliminary Final
Prospectus shall not inure to any benefit of any Underwriter (or any person
controlling any of the Underwriters) from whom the person asserting any such
loss, claim, damage or liability purchased the Certificates which are the
subject thereof if such person did not receive a copy of the Final Prospectus
-17-
(or the Final Prospectus as supplemented) at or prior to the confirmation of the
sale of such Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as supplemented). This indemnity agreement
will be in addition to any liability which DAFC may otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless DAFC, each
of the directors thereof, each of the officers who signs a Registration
Statement, and each person who controls DAFC within the meaning of the Act, to
the same extent as the foregoing indemnities from DAFC to the Underwriters, but
only with reference to written information furnished to DAFC by or on behalf of
each Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which each Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9 unless the indemnifying party is materially prejudiced thereby.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to appoint counsel satisfactory to such indemnified party
to represent the indemnified party in such action; provided, however, that, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Underwriter(s) being indemnified in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed
-18-
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the foregoing indemnification provisions of this Section 9 are
unavailable or insufficient to hold harmless an indemnified party, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Transferor on the
one hand and the Underwriters on the other from the offering of the Certificates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Transferor on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
benefits received by the Transferor on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Certificates purchased under
this Agreement (before deducting expenses) received by the Transferor bear to
the total underwriting discounts and commissions received by the Underwriters
with respect to the Certificates purchased under this Agreement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Transferor on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
The Transferor and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 9(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
9(d) shall be deemed to include, for purposes of this Section 9(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), no Underwriter nor any person controlling any
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Certificates
-19-
underwritten by it and distributed to the public were offered to the public less
the amount of any damages which such Underwriter or such controlling person has
otherwise paid or become liable to pay by reason of any 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 as
provided in this Section 9(d) are several in proportion to their respective
underwriting obligations and not joint.
Section 10. Obligations of the Corporation, DNB and DNB-La. Each of
the Corporation, DNB and DNB-La. agrees with the Underwriters, for the sole and
exclusive benefit of the Underwriters and each person who controls the
Underwriters within the meaning of either the Act or the Exchange Act and not
for the benefit of any assignee thereof or any other person or persons dealing
with the Underwriters, in consideration of and as an inducement to its agreement
to purchase the Certificates from DAFC, jointly and severally to indemnify and
hold harmless the Underwriters against any failure by DAFC to perform its
obligations to the Underwriters (including its contribution obligation) pursuant
to Section 9 hereof; provided, however, that the aggregate liability of the
Corporation, DNB or DNB-La. for the foregoing indemnity shall not exceed an
amount equal to the aggregate principal amount of the Certificates.
Section 11. Default by an Underwriter. If, on the Closing Date, any
Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements for
the purchase of such Certificates by other persons satisfactory to DAFC and the
Representative, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, then each remaining non-defaulting Underwriter
shall be severally obligated to purchase the Certificates which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing Date in
the respective proportions which the principal amount of Certificates set forth
opposite the name of each remaining non-defaulting Underwriter in Schedule I to
the Terms Agreement bears to the aggregate principal amount of Certificates set
forth opposite the names of all the remaining non-defaulting Underwriters in
Schedule I to the Terms Agreement; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Certificates on the Closing Date if the aggregate principal amount of
Certificates which the defaulting Underwriter or Underwriters agreed but failed
to purchase on such date exceeds one-eleventh of the aggregate principal amount
of the Certificates to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase in total more than
110% of the principal amount of the Certificates which it agreed to purchase on
the Closing Date pursuant to the terms of Section 2. If the foregoing maximums
are exceeded and the remaining Underwriters or other underwriters satisfactory
to the
-20-
Representative and DAFC do not elect to purchase the Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or DAFC, except that the provisions of Section 12 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule I to the Terms Agreement
who, pursuant to this Section 11, purchases Certificates which a defaulting
Underwriter agreed but failed to purchase.
Section 12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Corporation, DNB, DNB-La., DAFC and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Corporation, DNB, DNB-La. or DAFC or any of the officers, directors or
controlling persons referred to in Section 9 hereof, and will survive delivery
of and payment for the Certificates. The provisions of Sections 8, 9 and 10
hereof shall survive the termination or cancellation of this Agreement.
Section 13. Notices. All communication hereunder shall be in
writing and, if sent to the Underwriters will be mailed, delivered or
telecopied and confirmed to them at 270 Park Avenue, New York, New York
10017, Attention: David A. Howard Jr., Telecopy No: (212) 834-6564; if sent
to DAFC, will be mailed, delivered or telecopied and confirmed to them care
of Dillard Asset Funding Company, c/o Chase Manhattan Bank USA, N.A., a
national banking association, as successor in interest to Chase Manhattan
Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration, Telecopy No.: (302) 984-4903; or if sent to
DNB or DNB-La., will be mailed, delivered or telecopied and confirmed to them
care of Dillard National Bank at 396 N. William Dillard Drive, Gilbert,
Arizona 85702, Attention: ______________, Telecopy No.: (602) _________; or
if sent to the Corporation, will be mailed, delivered or telecopied and
confirmed to them care of Dillard's Inc. at 1600 Cantrell Road, Little Rock,
Arkansas 72201, Attention: ______________, Telecopy No.: (501) _________.
Section 14. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of the
Act) with respect to the Certificates, transfer, deposit or otherwise convey any
Certificates into a trust or other type of special purpose vehicle that issues
securities or other instruments backed in whole or in part by, or that
represents interests in, such Certificates without the prior written consent of
the Corporation and DAFC.
-21-
Section 15. Miscellaneous. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of New York; it may be
executed in two or more counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
and the same instrument. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
the officers and directors and controlling persons referred to in Section 9
hereof, and no other person shall have any right or obligation hereunder. This
Agreement supersedes all prior agreements and understandings between the parties
relating to the subject matter hereof, other than those contained in the Terms
Agreement executed in connection herewith. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 16. Effectiveness. This Agreement shall become
effective upon execution and delivery hereof.
-22-
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to DAFC, whereupon this letter and your
acceptance shall become a binding agreement by and among the Corporation, DNB,
DNB-La., DAFC and the Underwriters.
Very truly yours,
DILLARD'S INC.
By
---------------------------------------
Name:
Title:
DILLARD NATIONAL BANK
By
---------------------------------------
Name:
Title:
DILLARD NATIONAL BANK (f/k/a MERCANTILE
STORES NATIONAL BANK)
By
---------------------------------------
Name:
Title:
DILLARD ASSET FUNDING COMPANY
-------------------------------------------
By: James Freeman, Administrator
-1-
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
CHASE SECURITIES INC.
as Underwriter and as Representative
of the several Underwriters named in
the Terms Agreement
By
---------------------------------------
Name:
Title:
-2-
Exhibit A
FORM OF TERMS AGREEMENT
-----------------------
DILLARD CREDIT CARD MASTER TRUST I
CLASS A FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 2000-
TERMS AGREEMENT
---------------
Dated: ________, 2000
To: Dillard's Inc.
Dillard National Bank
Dillard National Bank (formerly Mercantile Stores National Bank)
Dillard Asset Funding Company
Re: Underwriting Agreement dated June ____, 2000
Series Designation: Series 2000- _____
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 Certificates:
Initial
Invested Interest Rate
Class Amount or Formula Price to Public (1)
----- -------- ------------- -------------------
Class A $[________] _________% ______%
(1) Plus accrued interest at the applicable rate from _______, 2000.
Distribution Dates: Class A: the ______ day of each month (or if such ______
day is not a business day the next succeeding business day), commencing
_______, 2000.
A-1
Certificate Ratings:
Class A: [AAA] by Standard & Poor's
[Aaa] by Moody's
Credit Enhancement Provider:
Trustee: The Chase Manhattan Bank
Pooling and Servicing Agreement: The Amended and Restated Pooling and Servicing
Agreement, dated as of June __, 2000, as amended, among Dillard Asset Funding
Company, as Transferor, Dillard National Bank as Servicer, and The Chase
Manhattan Bank, as Trustee, on behalf of the Certificateholders of Dillard
Credit Card Master Trust.
Supplement: Series 2000- ___ Supplement, dated as of __________ __, 2000, among
Dillard Asset Funding Company, as Transferor, Dillard National Bank as Servicer,
and The Chase Manhattan Bank, as Trustee, on behalf of the Series 2000- ___
Certificateholders.
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 Class A Certificate: ______%
Registration Statement: Registration No. 333-67855
Underwriting Commissions, Concessions and Discounts:
The Underwriter's discounts and commissions, the concessions
that the Underwriter 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 Class A Certificates, shall be as follows:
Underwriting
Discounts Selling
Class and Concessions Concessions Reallowance
----- --------------- ----------- -----------
Class A _____% ______% ____%
Closing Date: June ______, 2000, 10:00 a.m., New York Time
A-2
Location of Closing: [Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York 10017]
Payment for the Certificates: Wire transfer of same day funds
Opinion Modifications:
Other securities being offered concurrently:
A-3
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.
CHASE SECURITIES INC.
As Underwriter and as Representative of
the several Underwriters named
in Schedule I hereto
By:
-----------------------------
Name:
Title:
Accepted:
DILLARD'S INC.
By:
-----------------------------
Name:
Title:
DILLARD NATIONAL BANK
By:
-----------------------------
Name:
Title:
DILLARD NATIONAL BANK (f/k/a
MERCANTILE STORES NATIONAL BANK)
By:
-----------------------------
Name:
Title:
DILLARD ASSET FUNDING COMPANY
BY: CHASE MANHATTAN BANK DELAWARE,
as owner trustee
By:
-------------------------
Name:
Title:
SCHEDULE I
UNDERWRITERS
$[_________] Principal Amount of Class A Floating Rate Asset Backed
Certificates, Series 2000- __
Principal Amount
----------------
Chase Securities Inc. $[_________]
Total $[_________]