1
Exhibit 1.1
[ ], [ ]
--------- ---------
Associates Credit Card Master Note Trust
$[_____________] Class A [Floating Rate] [___]% Asset Backed
Notes, Series [______]
$[_____________] Class B [Floating Rate] [___]% Asset Backed
Notes, Series [______]
$[_____________] Class C [Floating Rate] [___]% Asset Backed
Notes, Series [______]
FORM OF UNDERWRITING AGREEMENT
[ ]
-----------------------
as Representative of the
Underwriters set forth herein (the "Representative")
[Address]
Ladies and Gentlemen:
1. Introductory. Associates Credit Card Receivables Corp. ("ACCR" or
the "Transferor") proposes to cause Associates Credit Card Master Note Trust
(the "Issuer") to issue $[__________] aggregate principal amount of Associates
Credit Card Master Note Trust Class A [Floating Rate] [___]% Asset Backed
Notes, Series [______] (the "Class A Notes"), $[__________] aggregate principal
amount of Associates Credit Card Master Note Trust Class B [Floating Rate]
[___]% Asset Backed Notes, Series [______] (the "Class B Notes"), and
$[__________] aggregate principal amount of Associates Credit Card Master Note
Trust Class C [Floating Rate] [___]% Asset Backed Notes, Series [______] (the
"Class C Notes," and together with the Class A Notes and the Class B Notes, the
"Notes").
The Issuer is a Delaware statutory business trust formed pursuant to
(a) a Trust Agreement, dated as of April 1, 2000 (the "Trust Agreement"),
between the Transferor and Wilmington Trust Company ("WTC"), as owner trustee
(the "Owner Trustee") and (b) the filing of a certificate of trust with the
Secretary of State of Delaware on April 5, 2000. The Notes will be issued
pursuant to a Master Indenture, dated as of April 1, 2000 (the "Master
Indenture"), between the Issuer and The Bank of New York, as indenture trustee
(the "Indenture Trustee"), as supplemented by the Series [______] Indenture
Supplement with respect to the Notes to be dated as of [_________], [_____]
(the "Indenture Supplement," and together with the Master Indenture, the
"Indenture").
2
The assets of the Issuer will include, among other things, certain
amounts due (the "Receivables") on a pool of VISA and MasterCard credit card
accounts of Associates National Bank (Delaware) (the "Accounts").
The Receivables are transferred to the Issuer pursuant to a Transfer
and Servicing Agreement, dated as of April 1, 2000 (the "Transfer and Servicing
Agreement"), among the Transferor, Associates National Bank (Delaware) (the
"Bank"), as servicer (in such capacity, the "Servicer"), and the Issuer. The
Receivables transferred to the Issuer by the Transferor are acquired by the
Transferor from Associates Credit Card Services, Inc. ("ACCS") pursuant to a
Receivables Purchase Agreement, dated as of April 1, 2000 (the "ACCS
Receivables Purchase Agreement"), between ACCS and ACCR. The Receivables
transferred to ACCR by ACCS are acquired by ACCS from the Bank pursuant to a
Receivables Purchase Agreement, dated as of April 1, 2000 (the "Bank
Receivables Purchase Agreement," and together with the ACCS Receivables
Purchase Agreement, the "Receivables Purchase Agreements"), between the Bank
and ACCS.
The Bank has agreed to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the Transfer and
Servicing Agreement, the Master Indenture and each indenture supplement for
each series of Notes issued by the Issuer, pursuant to an Administration
Agreement, dated as of April 1, 2000 (the "Administration Agreement"), between
the Bank, as administrator (in such capacity, the "Administrator"), and the
Issuer. The Transfer and Servicing Agreement, the Receivables Purchase
Agreements, the Indenture, the Trust Agreement and the Administration Agreement
are referred to herein, collectively, as the "Transaction Documents."
This Underwriting Agreement is referred to herein as this "Agreement."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Transaction Documents.
The Transferor and ACCS hereby agree, severally and not jointly, with
the underwriters for the Class A Notes listed on Schedule A hereto (the "Class
A Underwriters"), the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters"), and the underwriters for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriters," and together with the
Class A Underwriters and the Class B Underwriters, the "Underwriters") as
follows:
2. Representations and Warranties of the Transferor and ACCS. Each of
the Transferor (the representations and warranties as to the Transferor being
given by the Transferor) and ACCS (the representations and warranties as to
ACCS and the Bank being given by ACCS) represents and warrants to, and agrees
with, the Underwriters that:
(a) The Transferor is duly organized and validly existing in
good standing as a corporation under the laws of the State of
Delaware, and has all requisite corporate power, authority and legal
right to own its property and transact the business in which it is now
engaged, and to execute, deliver and perform its obligations under
this Agreement, the
-2-
3
Transfer and Servicing Agreement, the ACCS Receivables Purchase
Agreement and the Trust Agreement.
(b) ACCS is duly organized and validly existing in good
standing as a corporation under the laws of the State of Delaware, and
has all requisite corporate power, authority and legal right to own
its property and transact the business in which it is now engaged, and
to execute, deliver and perform its obligations under this Agreement
and the Receivables Purchase Agreements.
(c) The Bank is a national banking association duly organized
and validly existing in good standing under the laws of the United
States, and has all requisite corporate power, authority and legal
right to own its property and conduct its credit card business as such
properties are presently owned and such business is presently
conducted, and to own the Accounts and to execute, deliver and perform
its obligations under the Bank Receivables Purchase Agreement, the
Transfer and Servicing Agreement and the Administration Agreement.
(d) The execution and delivery of each of the Transaction
Documents (other than the Indenture) to which it is a party, and the
incurrence of the obligations therein set forth and the consummation
of the transactions contemplated thereunder have been duly authorized
by the Transferor, ACCS and the Bank, as applicable, by all necessary
action on the part of the Transferor, ACCS and the Bank, as
applicable.
(e) This Agreement has been duly authorized, executed and
delivered by the Transferor and ACCS.
(f) Each of the Transaction Documents has been, or on or
before the Closing Date will be, executed and delivered by the
Transferor, ACCS and the Bank, as applicable, and when executed and
delivered by the other parties thereto, will constitute a valid and
binding agreement of the Transferor, ACCS and the Bank, as applicable,
enforceable against the Transferor, ACCS and the Bank, as applicable,
in accordance with its terms, except, in each case, to the extent that
(i) the enforceability thereof may be subject to insolvency,
reorganization, moratorium, receivership or other similar laws now or
hereafter in effect relating to creditors' or other obligees' rights
generally or the rights of creditors or other obligees of institutions
insured by the FDIC, (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) certain remedial
provisions of the Indenture may be unenforceable in whole or in part
under the UCC, but the inclusion of such provisions does not render
the other provisions of the Indenture invalid and notwithstanding that
such provisions may be unenforceable in whole or in part, the
Indenture Trustee, on behalf of the Noteholders, will be able to
enforce the remedies of a secured party under the UCC.
-3-
4
(g) The Notes will be issued pursuant to the terms of the
Indenture and, when executed by the Owner Trustee on behalf of the
Issuer and authenticated by the Indenture Trustee in accordance with
the Indenture and delivered pursuant to this Agreement, will be
validly issued and outstanding. The Notes will be in all material
respects in the form contemplated by the Indenture, and the Notes and
the Indenture will conform to the descriptions thereof contained in
the Prospectus and Registration Statement, as amended or supplemented.
(h) None of the Transferor, ACCS or the Bank is in violation
of any Requirement of Law or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other instrument to which it is a party or
by which it is bound or to which any of its property is subject, which
violations or defaults separately or in the aggregate would have a
material adverse effect on the Transferor, ACCS or the Bank.
(i) Neither the issuance and sale of the Notes, nor the
execution and delivery by any of the Transferor, ACCS or the Bank of
this Agreement or any Transaction Document to which it is a party, nor
the incurrence by the Transferor, ACCS or the Bank of the obligations
herein and therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment of the terms
thereof does or will (i) violate any Requirement of Law presently in
effect, applicable to it or its properties or by which it or its
properties are or may be bound or affected, (ii) conflict with, or
result in a breach of, or constitute a default under, any indenture,
contract, agreement, deed, lease, mortgage or instrument to which it
is a party or by which it or its properties are bound or (iii) result
in the creation or imposition of any Lien upon any of its property or
assets, except for those encumbrances created under the Transaction
Documents.
(j) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body
required in connection with the execution and delivery by the
Transferor, ACCS or the Bank of this Agreement or the Transaction
Documents to which it is a party or to the consummation of the
transactions contemplated hereunder and thereunder, or to the
fulfillment of the terms hereof and thereof have been or will have
been obtained on or before the Closing Date.
(k) All actions required to be taken by the Transferor, ACCS,
the Issuer and the Bank as a condition to the offer and sale of the
Notes as described herein or the consummation of any of the
transactions described in the Prospectus and the Registration
Statement (each as defined below) have been or, prior to the Closing
Date, will be taken.
(l) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies as to form
with the TIA and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
-4-
5
(m) The representations and warranties made by the Transferor
in the Transfer and Servicing Agreement, the Trust Agreement and the
ACCS Receivables Purchase Agreement and made in any Officer's
Certificate of the Transferor delivered pursuant to any Transaction
Document to which it is a party will be true and correct in all
material respects at the time made and on and as of the Closing Date
as if set forth herein, except that to the extent that any such
representation or warranty expressly relates to an earlier date, such
representation or warranty is true and correct in all material
respects at and as of such earlier date.
(n) The representations and warranties made by ACCS in the
ACCS Receivables Purchase Agreement, and made in any Officer's
Certificate of ACCS delivered pursuant to any Transaction Document to
which it is a party will be true and correct in all material respects
at the time made and on and as of the Closing Date as if set forth
herein, except that to the extent that any such representation or
warranty expressly relates to an earlier date, such representation or
warranty is true and correct in all material respects at and as of
such earlier date.
(o) The representations and warranties made by the Bank in
the Bank Receivables Purchase Agreement, and in its capacity as
Servicer and Administrator, in the Transfer and Servicing Agreement
and the Administration Agreement, respectively, and made in any
Officer's Certificate of the Bank delivered pursuant to any
Transaction Document to which it is a party will be true and correct
in all material respects at the time made and on and as of the Closing
Date as if set forth herein, except that to the extent that any such
representation or warranty expressly relates to an earlier date, such
representation or warranty is true and correct in all material
respects at and as of such earlier date.
(p) The Receivables had an aggregate outstanding balance
determined as of [_____________], [___________] in the amount set
forth in the Prospectus.
(q) The Transferor agrees it has not granted, assigned,
pledged or transferred and shall not grant, assign, pledge or transfer
to any Person a security interest in, or any other right, title or
interest in, the Receivables, except as provided in the Transfer and
Servicing Agreement, and agrees to take all action required by the
Transfer and Servicing Agreement in order to maintain the security
interest in the Receivables granted pursuant to the Transfer and
Servicing Agreement.
(r) ACCS agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any
Person a security interest in, or any other right, title or interest
in, the Receivables, except as provided in the ACCS Receivables
Purchase Agreement, and agrees to take all action required by the ACCS
Receivables Purchase Agreement in order to maintain the security
interest in the Receivables granted pursuant to the ACCS Receivables
Purchase Agreement.
-5-
6
(s) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any
Person a security interest in, or any other right, title or interest
in, the Receivables, except as provided in the Bank Receivables
Purchase Agreement, and agrees to take all action required by the Bank
Receivables Purchase Agreement in order to maintain the security
interests in the Receivables granted pursuant to the Bank Receivables
Purchase Agreement.
(t) A registration statement on Form S-3 (Nos. 333-94867 and
333-94867-01), including a form of prospectus and such amendments
thereto as may have been filed prior to the date hereof, relating to
the Notes and the offering thereof in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed
with, and has been declared effective by, the Commission. If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective
by the Commission. For purposes of this Agreement, "Effective Time"
means the date and time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared
effective by the Commission, and "Effective Date" means the date of
the Effective Time. Such registration statement, as amended at the
Effective Time, is hereinafter referred to as the "Registration
Statement." The Transferor proposes to file with the Commission
pursuant to Rule 424(b) ("Rule 424(b)") under the Act a supplement
(the "Prospectus Supplement") to the prospectus included in the
Registration Statement (such prospectus, in the form it appears in the
Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424(b), is hereinafter referred
to as the "Base Prospectus") relating to the Notes and the method of
distribution thereof. The Base Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement thereto,
are hereinafter referred to as the "Prospectus".
(u) On the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "Rules and
Regulations") and the TIA and the rules and regulations thereunder and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of this
Agreement, the Registration Statement and the Prospectus conform, and
at the time of filing of the Prospectus pursuant to Rule 424(b) the
Registration Statement and the Prospectus will conform, in all
respects with the requirements of the Act and the Rules and
Regulations and the TIA and the rules and regulations thereunder and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from either of such documents
based upon written information furnished to the Transferor or ACCS by
the Underwriters specifically for use therein. Each of the Transferor
and ACCS hereby acknowledges that (i) the only information provided by
the Class A Underwriters for inclusion in the Registration Statement
and the Prospectus is set forth on
-6-
7
the cover page of the Prospectus Supplement in the table under the
heading "Class A Notes" and on the line across from "Price to public,"
in the table listing the Class A Underwriters and the Principal Amount
of Class A Notes under the heading "Underwriting" in the Prospectus
Supplement, in the third paragraph under the heading "Underwriting" in
the Prospectus Supplement, and in the final paragraph under the
heading "Underwriting" in the Prospectus Supplement (the "Class A
Underwriters' Information"); (ii) the only information provided by the
Class B Underwriters for inclusion in the Registration Statement and
the Prospectus is set forth on the cover page of the Prospectus
Supplement in the table under the heading "Class B Notes" and on the
line across from "Price to public," in the table listing the Class B
Underwriters and the Principal Amount of Class B Notes and under the
heading "Underwriting" in the Prospectus Supplement, in the fourth
paragraph under the heading "Underwriting" in the Prospectus
Supplement, and in the final paragraph under the heading
"Underwriting" in the Prospectus Supplement (the "Class B
Underwriters' Information") and (iii) the only information provided by
the Class C Underwriters for inclusion in the Registration Statement
and the Prospectus is set forth on the cover page of the Prospectus
Supplement in the table under the heading "Class C Notes" and on the
line across from "Price to public," in the table listing the Class C
Underwriters and the Principal Amount of Class C Notes and under the
heading "Underwriting" in the Prospectus Supplement, in the fifth
paragraph under the heading "Underwriting" in the Prospectus
Supplement, and in the final paragraph under the heading
"Underwriting" in the Prospectus Supplement (the "Class C
Underwriters' Information").
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, there has not been any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Bank, ACCS or the Transferor that would
have a material adverse effect on the Issuer.
3. Purchase, Sale, Payment and Delivery of the Notes.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class A
Underwriters, and the Class A Underwriters agree to purchase from the
Transferor, at a purchase price of [______]% of the principal amount
thereof, $[________] aggregate principal amount of the Class A Notes,
each Class A Underwriter to purchase the amounts shown on Schedule A
hereto.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class B
Underwriters, and the Class B Underwriters agree to purchase from the
Transferor, at a purchase price of [______]% of the principal amount
thereof, $[__________] aggregate principal amount of the Class B
Notes, each Class B Underwriter to purchase the amounts shown on
Schedule A hereto.
-7-
8
(c) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class C
Underwriters, and the Class C Underwriters agree to purchase from the
Transferor, at a purchase price of [______]% of the principal amount
thereof, $[__________] aggregate principal amount of the Class C
Notes, each Class C Underwriter to purchase the amounts shown on
Schedule A hereto.
(d) The Transferor will cause the Issuer to deliver the Notes
to the Underwriters against payment of the purchase price in
immediately available funds, drawn to the order of the Transferor, at
the office of Orrick, Herrington & Sutcliffe LLP, in
[________________] at 10:00 a.m., New York City time, on
[____________], [____], or at such other time not later than seven
full business days thereafter as the Representative and the Transferor
determine, such time being herein referred to as the "Closing Date."
Each of the Class A Notes, the Class B Notes and the Class C Notes so
to be delivered shall be represented by one or more definitive notes
registered in the name of Cede & Co., as nominee for The Depository
Trust Company. The Notes will be available for inspection by the
Underwriters at the office at which the Notes are to be delivered no
later than five hours before the close of business in New York City on
the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Notes for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Transferor. The Transferor agrees with
the Underwriters that:
(a) Immediately following the execution of this Agreement,
the Transferor will prepare a Prospectus Supplement setting forth the
amount of Notes covered thereby and the terms thereof not otherwise
specified in the Base Prospectus, the price at which such Notes are to
be purchased by the Underwriters, the initial public offering price,
the selling concessions and allowances, and such other information as
the Transferor deems appropriate. The Transferor will transmit the
Prospectus, including such Prospectus Supplement, to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in
filing with the Commission pursuant to Rule 424(b). The Transferor
will not file any amendment of the Registration Statement with respect
to the Notes or supplement to the Prospectus unless a copy has been
furnished to the Representative for its review a reasonable time prior
to the proposed filing thereof or to which the Representative shall
reasonably object in writing. The Transferor will advise the
Representative promptly of (i) the effectiveness of any amendment or
supplementation of the Registration Statement or Prospectus, (ii) any
request by the Commission for any amendment or supplementation of the
Registration Statement or the Prospectus or for any additional
information, (iii) the receipt by the Transferor of any notification
with respect to the suspension of qualification of the Notes for sale
in any
-8-
9
jurisdiction or the initiation or threatening of any proceeding for
such purposes and (iv) the institution by the Commission of any stop
order proceeding in respect of the Registration Statement, and will
use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result
of which the Prospectus, as then amended or supplemented, would
include an 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 is necessary at any time to amend the Prospectus to comply with the
Act, the Transferor promptly will prepare and file with the Commission
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither
the Underwriters' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(c) As soon as practicable, the Transferor will cause the
Trust to make generally available to the Noteholders an earnings
statement or statements of the Trust covering a period of at least 12
months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(d) The Transferor will furnish to the Representative copies
of the Registration Statement (one of which will be signed and will
include all exhibits), the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as the Representative reasonably requests.
(e) The Transferor will endeavor to qualify the Notes for
sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request and the determination of
the eligibility for investment of the Notes under the laws of such
jurisdictions as the Representative may designate and will continue
such qualifications in effect so long as required for the distribution
of the Notes; provided, however, that the Transferor shall not be
obligated to qualify to do business in any jurisdiction where such
qualification would subject the Transferor to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(f) So long as any Note is outstanding, the Transferor will
furnish, or cause the Servicer to furnish, to the Representative
copies of each certificate and the annual statements of compliance
delivered to the Owner Trustee, the Indenture Trustee and each Rating
Agency pursuant to Section 3.05 of the Transfer and Servicing
Agreement and the annual SAS No. 70 Report and independent certified
public accountant's servicing reports furnished to the Indenture
Trustee, the Servicer and the Rating Agencies pursuant to Sections
3.06(a) and (b) of the Transfer and Servicing Agreement, by first
class mail as soon as practicable after such
-9-
10
certificates, statements and reports are furnished to the Owner
Trustee, the Indenture Trustee or the Rating Agencies, as the case may
be.
(g) So long as any Note is outstanding, the Transferor will
furnish, or cause the Servicer to furnish, to the Representative, by
first-class mail as soon as practicable (i) all documents concerning
the Notes distributed by the Transferor or the Servicer to the Owner
Trustee, the Indenture Trustee or the Noteholders, or filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) any order of the Commission under the Act
or the Exchange Act applicable to the Issuer or to the Transferor, or
pursuant to a "no-action" letter obtained from the staff of the
Commission by the Transferor and affecting the Issuer or the
Transferor and (iii) from time to time, such other information
concerning the Issuer as the Representative may reasonably request.
(h) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated for any
reason, except a default by the Underwriters hereunder, the Transferor
will pay all expenses incident to the performance of its obligations
under this Agreement (except as otherwise agreed in writing between
the Transferor and the Representative) and will reimburse the
Underwriters for any expenses incurred by them in connection with
qualification of the Notes for sale and determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as the Representative designates and for any fees
charged by investment rating agencies for the rating of the Notes and
for any filing fee of the National Association of Securities Dealers,
Inc. relating to the Notes, except that mailing expenses incurred in
distributing the Prospectus, other than in connection with an
amendment or supplement thereto, shall be borne by the Underwriters.
The Transferor and the Underwriters will each bear their own
respective fees and disbursements of counsel (which in the case of the
Transferor will include all legal fees relating to Blue Sky matters).
(i) To the extent, if any, that any of the ratings provided
with respect to the Notes by any Rating Agency are conditional upon
the furnishing of documents or the taking of any other actions by the
Transferor, the Transferor shall furnish such documents and take any
such other actions as are reasonably necessary to satisfy such
condition.
6. Conditions of the Obligations of the Underwriters. The obligation
of the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties on the part of the Transferor,
ACCS and the Bank herein, to the accuracy of the statements of officers of the
Transferor and ACCS made pursuant to the provisions hereof, to the performance
by the Transferor and ACCS of their respective obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the date of this Agreement, the
Representative shall have received a letter, dated the date of this
Agreement, of [_____________________], confirming that they are
independent public accountants within the meaning of the Act and
-10-
11
the applicable published Rules and Regulations thereunder,
substantially in the form heretofore agreed to and otherwise in form
and in substance satisfactory to the Representative and its counsel.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Transferor or the Representative, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any material adverse
change, or any development involving a prospective material adverse
change, in or affecting particularly the Issuer or the business or
properties of the Bank, ACCS or the Transferor; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange; (iii) a general moratorium on commercial banking activities
by Federal or New York State authorities; or (iv) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency, which, in any such
case, is, in the reasonable judgment of the Representative, so
material and adverse as to make it impracticable or inadvisable to
proceed with the completion and sale of and payment for the Notes on
the terms and in the manner contemplated in the Prospectus.
(d) The Representative shall have received an opinion, dated
the Closing Date, of Michael J. Forde, Assistant General Counsel for
Associates First Capital Corporation, as counsel for the Transferor,
ACCS and the Bank, satisfactory in form and substance to the
Representative and its counsel to the effect that:
(i) The Transferor is a corporation in good
standing, duly organized and validly existing under the laws
of the State of Delaware; ACCS is a corporation in good
standing, duly organized and validly existing under the laws
of the State of Delaware; the Bank is a national banking
association in good standing, duly organized and validly
existing under the laws of the United States of America; and
each of the Transferor, ACCS and the Bank (each collectively
referred to in this subsection (d) as an "Associates Entity")
is authorized by its certificate of incorporation or articles
of association, as the case may be, to transact the business
in which it is engaged and is neither required to qualify,
nor to register as a foreign corporation, in any state in
order to conduct its business as presently conducted, except
where the failure to so qualify or register would not have a
material adverse effect upon the Noteholders;
(ii) Each Associates Entity has full corporate power
and authority to enter into and perform its obligations under
each Transaction Document and this Agreement to which it is a
party;
-11-
12
(iii) Each Associates Entity has the corporate power
and authority and legal right to acquire, own and transfer,
and, in the case of the Bank, to service, the Receivables;
(iv) Each of the Transaction Documents and this
Agreement has been duly authorized, executed and delivered by
each Associates Entity that is a party thereto;
(v) No consent, approval, authorization or order of
any court or governmental agency or body is required for (a)
the execution and delivery by any Associates Entity of any
Transaction Document or this Agreement to which such
Associates Entity is a party or the performance by such
Associates Entity of its obligations thereunder, or (b) the
issuance and sale of the Notes;
(vi) Neither the execution and delivery of the
Transaction Documents and this Agreement by any Associates
Entity that is party thereto nor the performance by such
Associates Entity of the transactions therein contemplated
nor the fulfillment of the terms thereof does or will result
in any violation of any statute or regulation or any order or
decree of any court or governmental authority binding upon
such Associates Entity or its property, or conflict with, or
result in a breach or violation of any term or provision, or
result in a default under any of the terms and provisions, of
such Associates Entity's certificate of incorporation or
articles of association, as the case may be, or by-laws or
any material indenture, loan agreement or other material
agreement known to such counsel to which such Associates
Entity is a party or by which such Associates Entity is
bound;
(vii) There is no legal or governmental proceeding
pending to which any Associates Entity is a party or to which
any Associates Entity is subject which, individually or in
the aggregate (a) would have a material adverse effect on the
ability of such Associates Entity to perform its obligations
under the Transaction Documents or this Agreement, (b) assert
the invalidity of any Transaction Document, this Agreement,
the Transferor Certificate or the Ownership Interest
Certificate, (c) seek to prevent the issuance, sale or
delivery of the Notes or any of the transactions contemplated
by the Transaction Documents or this Agreement or (d) seek to
adversely affect the federal income tax consequences of the
Notes; and
(viii) The Registration Statement has become
effective under the Act and to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened under the
Act.
(e) The Representative shall have received an opinion dated
the Closing Date, of Orrick, Herrington & Sutcliffe LLP, special
counsel to the Transferor, ACCS and the Bank,
-12-
13
subject to customary qualifications, assumptions, limitations and
exceptions, and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) Each of the Transaction Documents, (other than
the Trust Agreement) to which the Transferor, ACCS, and the
Bank is a party constitutes the legal, valid and binding
agreement of the Transferor, ACCS and the Bank, as the case
may be, under the laws of the State of New York, enforceable
against each such Person in accordance with its terms,
subject to (w) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent
conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws
relating to or affecting the rights of creditors generally or
the rights of creditors of national banking associations; (x)
rights to indemnification and contribution which may be
limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (y) the
unenforceability under certain circumstances of provisions
imposing penalties, forfeiture, late payment charges, or an
increase in interest rate upon delinquency in payment or the
occurrence of any event of default; and (z) general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
and the possible unavailability of specific performance or
injunctive relief, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(ii) This Agreement constitutes the legal, valid and
binding obligation of the Transferor and ACCS under the laws
of the State of New York, enforceable against the Transferor
and ACCS in accordance with its terms, subject to (w)
limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent
conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws
relating to or affecting the rights of creditors generally or
the rights of creditors of national banking associations; (x)
rights to indemnification and contribution which may be
limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (y) the
unenforceability under certain circumstances of provisions
imposing penalties, forfeiture, late payment charges, or an
increase in interest rate upon delinquency in payment or the
occurrence of any event of default; and (z) general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
and the possible unavailability of specific performance or
injunctive relief, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(iii) When the Notes have been duly executed and
delivered by the Issuer, authenticated by the Indenture
Trustee in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance
with this Agreement, they will be validly issued and
outstanding, will constitute legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in
accordance with their terms
-13-
14
and will be entitled to the benefits of the Indenture,
subject to (w) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent
conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws
relating to or affecting the rights of creditors generally or
the rights of creditors of national banking associations; (x)
rights to indemnification and contribution which may be
limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (y) the
unenforceability under certain circumstances of provisions
imposing penalties, forfeiture, late payment charges, or an
increase in interest rate upon delinquency in payment or the
occurrence of any event of default; and (z) general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
and the possible unavailability of specific performance or
injunctive relief, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(iv) The statements in the Base Prospectus under the
headings "Risk Factors--If a conservator or receiver were
appointed for Associates National Bank (Delaware), or if
Associates Credit Card Services, Inc. or Associates Credit
Card Receivables Corp. became a debtor in a bankruptcy case,
delays or reductions in payment of your notes could occur,"
"Material Legal Aspects of the Receivables," "ERISA
Considerations" and "Federal Income Tax Consequences" and the
statements in the Prospectus Supplement under the headings
"Summary of Terms--Tax Status" and "--ERISA Considerations"
and "ERISA Considerations," to the extent that they
constitute matters of law or legal conclusions with respect
thereto, have been reviewed by us and are correct in all
material respects.
(v) This Agreement, the Transaction Documents and
the Notes conform in all material respects to the
descriptions thereof contained in the Prospectus.
(vi) The Indenture has been duly qualified under the
TIA and complies as to form with the TIA and the rules and
regulations of the Commission thereunder. The Trust is not
now, and immediately following the issuance of the Notes
pursuant to the Indenture will not be, required to be
registered under the Investment Company Act of 1940, as
amended.
(vii) Subject to the discussion in the Base
Prospectus under the heading "Federal Income Tax
Consequences", the Notes will properly be characterized as
indebtedness and the issuance of the Notes will not cause the
Issuer to be deemed an association (or publicly traded
partnership) taxable as a corporation, for U.S. federal
income tax purposes.
(viii) The Indenture constitutes the legal, valid
and binding obligation of the Issuer under the laws of the
State of New York, subject to (w) limitations imposed by
bankruptcy, insolvency, reorganization, liquidation,
arrangement, fraudulent
-14-
15
conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws
relating to or affecting the rights of creditors generally or
the rights of creditors of national banking associations; (x)
rights to indemnification and contribution which may be
limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (y) the
unenforceability under certain circumstances of provisions
imposing penalties, forfeiture, late payment charges, or an
increase in interest rate upon delinquency in payment or the
occurrence of any event of default; and (z) general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
and the possible unavailability of specific performance or
injunctive relief, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(ix) Each of the Registration Statement, as of its
effective date, and the Prospectus, as of its date, complied
as to form in all material respects with the requirements of
the Act and the Rules and Regulations under the Act, except
that in each case such counsel need not express any opinion
as to the financial and statistical data included therein or
excluded therefrom or the exhibits to the Registration
Statement and, except as and, to the extent set forth in
paragraphs (iv) and (v), such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus.
(x) If the FDIC is appointed as conservator or
receiver for the Bank and if a court were to determine that
the Indenture Trustee has a security interest in the
Receivables and the proceeds thereof, the court would hold
that the security interest of the Indenture Trustee would be
enforceable against the Bank with respect to the Receivables
and such proceeds.
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor, ACCS and the Bank
and their accountants, the Underwriters and counsel to the
Underwriters concerning the Registration Statement and the Prospectus
and have considered the matters to be stated therein and the matters
stated therein, although they are not independently verifying the
accuracy, completeness or fairness of such statements (except as
stated in paragraph (iv) above) and based upon and subject to the
foregoing, nothing has come to such counsel's attention to cause such
counsel to believe that the Registration Statement (excluding any
exhibits filed therewith), at the time it became effective, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the
date hereof, contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that
such counsel has not been requested to, and does not, make any comment
in such opinion with respect to the financial statements, supporting
-15-
16
schedules and other financial or statistical information contained in
the Registration Statement or the Prospectus).
(f) The Representative shall have received from
[____________________], special counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to such
matters relating to this transaction as the Representative may
require, and the Transferor shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(g) The Representative shall have received an opinion, dated
the Closing Date, of [____________], special Delaware counsel for the
Bank, satisfactory in form and substance to the Representative and its
counsel with respect to (i) certain matters relating to the transfer
of the Receivables from the Bank to ACCS and (ii) the perfection of
the security interest in favor of ACCS in the Receivables and the
proceeds thereof.
(h) The Representative shall have received an opinion, dated
the Closing Date, of [____________], special Texas counsel for the
Transferor and ACCS satisfactory in form and substance to the
Representative and its counsel, with respect to (i) certain matters
relating to the transfer of the Receivables from ACCS to the
Transferor and from the Transferor to the Issuer, and (ii) the
perfection of the security interests in favor of the Transferor and
the Issuer in the Receivables and the proceeds thereof.
(i) The Representative shall have received a certificate from
each of the Transferor and ACCS, dated the Closing Date, of a Vice
President or more senior officer of the Transferor or ACCS, as the
case may be, in which such officer, to the best of his/her knowledge
after reasonable investigation, shall state that (u) the
representations and warranties of the Transferor and ACCS, as the case
may be, in this Agreement are true and correct in all material
respects on and as of the Closing Date, (v) the Transferor or ACCS, as
the case may be, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, (w) the representations and warranties of
the Transferor or ACCS, as the case may be, contained in this
Agreement and the Transaction Documents to which it is a party are
true and correct as of the dates specified herein and therein, (x) no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, (y) nothing has come
to such officers' attention that would lead such officers to believe
that the Registration Statement or the Prospectus, and any amendment
or supplement thereto, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and (z) in the ACCS officer's certificate only, subsequent
to the date of the Prospectus, there has been no material adverse
change in the financial position or results of operation of the Bank's
credit card business except as set forth in or contemplated by the
Prospectus or as described in such certificate.
-16-
17
(j) The Representative shall have received an opinion of [ ],
counsel to the Owner Trustee, dated the Closing Date, satisfactory in
form and substance to the Representative and its counsel, to the
effect that:
(i) The Owner Trustee is duly incorporated and
validly existing as a banking corporation in good standing
under the laws of the State of Delaware;
(ii) The Owner Trustee has the power and authority
to execute, deliver and perform the Trust Agreement and to
consummate the transactions contemplated thereby;
(iii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee and constitutes a
legal, valid and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its
terms;
(iv) Each of the Indenture, the Trust Agreement and
the Transfer and Servicing Agreement (collectively referred
to in this subsection (i) as the "Trust Documents") has been
duly executed and delivered by the Owner Trustee, as Owner
Trustee on behalf of the Issuer;
(v) Neither the execution, delivery or performance
by the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, of the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
contemplated thereby, requires the consent or approval of,
the withholding of objection on the part of, the giving of
notice to, the filing, registration or qualification with, or
the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or
the United States of America governing the banking or trust
powers of the Owner Trustee (other than the filing of the
certificate of trust with the Delaware Secretary of State,
which certificate of trust has been duly filed);
(vi) Neither the execution, delivery and performance
by the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, of the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
contemplated thereby, is in violation of the charter or
bylaws of the Owner Trustee or of any law, governmental rule
or regulation of the State of Delaware or of the United
States of America governing the banking or trust powers of
the Owner Trustee or, to such counsel's knowledge, without
independent investigation, any indenture, mortgage, bank
credit agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument to which it
is a party or by which it is bound or, to
-17-
18
such counsel's knowledge, without independent investigation,
of any judgment or order applicable to the Owner Trustee;
(vii) No consent, approval or other authorization
of, or registration, declaration or filing with, any court or
governmental agency or commission of the State of Delaware is
required by or with respect to the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
for the valid execution and delivery of the Trust Documents,
or for the validity or enforceability thereof (other than the
filing of the certificate of trust, which certificate of
trust has been duly filed); and
(viii) To such counsel's knowledge, without
independent investigation, there are no pending or threatened
actions, suits or proceedings affecting the Owner Trustee
before any court or other governmental authority which, if
adversely determined, would materially and adversely affect
the ability of the Owner Trustee to carry out the
transactions contemplated by the Trust Agreement.
(k) The Representative shall have received an opinion of [ ],
special Delaware counsel to the Issuer, dated the Closing Date,
satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Issuer has been duly formed and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act, 12 Del. C 3801 et seq. (referred
to in this subsection (k) as the "Act")
(ii) The Trust Agreement constitutes a legal, valid
and binding obligation of the Owner Trustee and the
Transferor, enforceable against the Owner Trustee and the
Transferor, in accordance with its terms;
(iii) Under the Act and the Trust Agreement, the
execution and delivery of the Transfer and Servicing
Agreement and the Indenture, the issuance of the Notes, the
Transferor Certificate and the Ownership Interest Certificate
and the granting of the Collateral to the Indenture Trustee
as security for the Notes has been duly authorized by all
necessary trust action on the part of the Trust;
(iv) Under the Act and the Trust Agreement, the
Issuer has (i) the trust power and authority to execute,
deliver and perform its obligations under the Administration
Agreement, the Indenture and the Transfer and Servicing
Agreement (collectively referred to in this subsection (k) as
the "Trust Documents"), the Notes, the Transferor Certificate
and the Owner Interest Certificate and (ii) duly authorized,
executed and delivered such agreements and obligations;
-18-
19
(v) When the Transferor Certificate and Ownership
Interest Certificate have been duly executed and issued by
the Issuer and duly authenticated by the Owner Trustee in
accordance with the Trust Agreement, the Transferor
Certificate and Ownership Interest Certificate will be
validly issued and entitled to the benefits of the Trust
Agreement;
(vi) Neither the execution, delivery and performance
by the Issuer of the Trust Documents, the Notes, the
Transferor Certificate or the Ownership Interest Certificate,
nor the consummation by the Issuer of any of the transactions
by the Issuer contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or
qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State
of Delaware, other than the filing of the certificate of
trust with the Delaware Secretary of State (which certificate
of trust has been duly filed) and the filing of any financing
statements with the Delaware Secretary of State in connection
with the Indenture;
(vii) Neither the execution, delivery and
performance by the Issuer of the Trust Documents, nor the
consummation by the Issuer of the transactions contemplated
thereby, is in violation of the Trust Agreement or of any
law, rule or regulation of the State of Delaware applicable
to the Issuer;
(viii) Under Section 3805(b) of the Act, no creditor
of the Owner shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect
to, the property of the Issuer except in accordance with the
terms of the Trust Agreement;
(ix) Under Section 3808(a) and (b) of the Act, the
Issuer may not be terminated or revoked by the Owner, and the
dissolution, termination or bankruptcy of the Owner shall not
result in the termination or dissolution of the Issuer,
except to the extent otherwise provided in the Trust
Agreement;
(x) The Owner Trustee is not required to hold legal
title to the Trust Estate in order for the Issuer to qualify
as a business trust under the Act;
(xi) With respect to the Issuer and the Receivables:
(a) there is no document, stamp, exercise or other similar
tax imposed by the State of Delaware upon the perfection of a
security interest in the Receivables, in the transfer of the
Receivables to or from the Issuer, or upon the issuance of
the Notes; (b) there is no personal property tax imposed by
the State of Delaware upon or measured by the corpus of the
Issuer; (c) the characterization of the Issuer for federal
income tax purposes will be determinative of the
characterization of the Issuer for Delaware income tax
purposes and assuming that the Issuer will be taxed as a
partnership for
-19-
20
federal income tax purposes, the Issuer will not be subject
to Delaware income tax and Noteholders who are not otherwise
subject to Delaware income tax will not be subject to tax by
reason of their ownership of the Notes and the receipt of
income therefrom; and (d) any income tax imposed by the State
of Delaware that might be applicable to the Issuer would be
based upon "federal taxable income," and for the purposes of
determining such income, the characterization of such income
for federal income tax purposes will be determinative,
whether the characterization of the transaction is that of a
sale or a loan; and
(xii) The Owner is the sole beneficial owner of the
Issuer.
(l) The Representative shall have received an opinion of [ ],
counsel to the Indenture Trustee dated the Closing Date, satisfactory
in form and substance to the Representative and its counsel, to the
effect that:
(i) The Indenture Trustee is a banking corporation
organized and validly existing and in good standing under the
laws of the State of New York and is authorized and qualified
to accept the trusts imposed by the Indenture and to act as
Indenture Trustee under the Indenture;
(ii) The acknowledgment by the Indenture Trustee of
the Transfer and Servicing Agreement has been duly
authorized, executed and delivered by the Indenture Trustee.
The Indenture Trustee has duly authorized, executed and
delivered the Indenture. Assuming the due authorization,
execution and delivery thereof by the other parties thereto,
the Indenture is the legal, valid and binding obligation of
the Indenture Trustee, enforceable against the Indenture
Trustee in accordance with its terms, subject to bankruptcy
and insolvency laws and general principles of equity;
(iii) The Indenture Trustee has duly executed and
authenticated the Notes;
(iv) The Indenture Trustee is duly authorized and
empowered to exercise trust powers under applicable law;
(v) None of (x) the execution and authentication of
the Notes, (y) the acknowledgment of the Transfer and
Servicing Agreement or (z) the execution, delivery and
performance of the Indenture by the Indenture Trustee
conflicts with or will result in a violation of (A) any law
or regulation of the United States of America or the State of
New York governing the banking or trust powers of the
Indenture Trustee or (B) the Organization Certificate or
Bylaws of the Indenture Trustee.
(vi) No approval, authorization or other action by,
or filing with, any governmental authority of the United
States of America or the State of New York
-20-
21
having jurisdiction over the banking or trust powers of the
Indenture Trustee is required in connection with the
execution and delivery by the Indenture Trustee of the
Indenture or the performance by the Indenture Trustee of the
terms of the Indenture or the acknowledgment of the Transfer
and Servicing Agreement.
(m) The Representative shall have received an opinion dated
the Closing Date, of Orrick, Herrington & Sutcliffe LLP, special
counsel to the Transferor, ACCS and the Bank, satisfactory in form and
substance to the Representative and its counsel, to the effect that
the transfer of the Receivables from ACCS to the Transferor would
constitute an absolute sale rather than a borrowing of ACCS secured by
the Receivables and would not be property of the estate of ACCS under
Section 541(a) (1) of the Bankruptcy Code that would be subject to the
automatic stay of Section 362(a) as it applies to "property of the
estate."
(n) The Representative shall have received reliance letters
addressed to the Representative, dated as of the Closing Date,
allowing the Representative to rely on each opinion of counsel
delivered to a Rating Agency, the Indenture Trustee, the Transferor,
ACCS or the Bank in connection with the issuance of the Notes.
(o) The Representative shall have received evidence
satisfactory to the Representative that the Class A Notes shall be
rated Aaa by Moody's Investors Service, Inc. and AAA by Standard &
Poor's Ratings Services, that the Class B Notes shall be rated no
lower than A2 by Moody's Investors Service, Inc. and A by Standard &
Poor's Ratings Services and that the Class C Notes shall be rated no
lower than Baa2 by Moody's Investors Service, Inc. and BBB by Standard
& Poor's Ratings Services.
The Transferor will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably request.
7. Indemnification and Contribution. (a) The Transferor and ACCS,
jointly and severally, will indemnify and hold harmless the Underwriters
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriters may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriters for any legal or other expenses reasonably
incurred by the Underwriters in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Transferor and ACCS 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 an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with the Class A Underwriters' Information, the Class B
Underwriters' Information or the Class C Underwriters' Information; provided
further, that the
-21-
22
Transferor and ACCS will not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any preliminary prospectus to
the extent that any loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Notes to a Person as to whom
it is established that there was not sent or given, at or prior to written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the Act if the Transferor or ACCS notified the Representative in
writing in accordance with Section 5(a) hereof and previously furnished copies
of the Prospectus (excluding documents incorporated by reference) in the
quantity requested in accordance with Section 5(d) hereof to such Underwriter
and the loss, claim, damage or liability of such Underwriter results from an
untrue statement or omission of a material fact contained in the preliminary
prospectus and corrected in the Prospectus or the Prospectus as then amended or
supplemented.
(b) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Transferor and ACCS against any
losses, claims, damages or liabilities to which the Transferor or ACCS
may become subject, under the Act or otherwise and will reimburse any
legal or other expenses reasonably incurred by the Transferor or ACCS
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that, with respect to
each of the Class A Underwriters, the Class B Underwriters and the
Class C Underwriters, such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with the Class A Underwriters' Information, the
Class B Underwriters' Information or the Class C Underwriters'
Information, respectively, and will reimburse any legal or other
expenses reasonably incurred by the Transferor and ACCS in connection
with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party 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
subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled
to participate therein and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
-22-
23
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and
does not include a statement as to, or an admission of, fault,
culpability or failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Transferor and ACCS
on the one hand and the Underwriters on the other from the offering of
the Notes, 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 and ACCS on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Transferor and ACCS on the one
hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) of the Notes received by the Transferor bear to
the total underwriting discounts and commissions received by the
Underwriters with respect to the Notes. 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 and ACCS or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission with respect to the Notes.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection
(d), the Underwriters shall not be required to contribute any amount
in excess of the amount by which the total underwriting discount as
set forth on the cover page of the Prospectus Supplement exceeds the
amount of damages which the Underwriters have otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission with respect to the Notes. No Person
guilty of fraudulent misrepresentation (within the meaning
-23-
24
of Section 11(f) of the Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Transferor and ACCS under this
Section shall be in addition to any liability which the Transferor or
ACCS may otherwise have and shall extend, upon the same terms and
conditions, to each Person, if any, who controls the Underwriters
within the meaning of the Act; and the obligations of the Underwriters
under this section shall be in addition to any liability which the
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Transferor or ACCS, to each
officer of the Transferor who has signed the Registration Statement and
to each Person, if any, who controls the Transferor or ACCS within the
meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Transferor and ACCS or their officers 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 Underwriters, the Transferor, ACCS or any of their
respective representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Notes. If this Agreement is
terminated or if for any reason other than default by the Underwriters the
purchase of the Notes by the Underwriters is not consummated, the Transferor
and ACCS shall remain responsible for the expenses to be paid by them pursuant
to Section 5 and the respective obligations of the Transferor, ACCS and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason
the purchase of the Notes by the Underwriters is not consummated other than
solely because of the occurrence of any event specified in clause (iii), (iv)
or (v) of Section 6(c), the Transferor and ACCS will reimburse the Underwriters
for all out-of-pocket expenses reasonably incurred by them in connection with
the offering of the Notes.
9. Computational Materials and ABS Term Sheets. (a) Each Underwriter
agrees to provide to the Transferor, not less than two Business Days prior to
the date on which the Transferor is required to file the Prospectus Supplement
pursuant to Rule 424(b), any information used by it (in such written or
electronic format as required by the Transferor) with respect to the offering
of the Notes that constitutes "Computational Materials," as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation (as made generally applicable to registrants,
issuers and underwriters by the Commission's response to the request of the
Public Securities Association dated May 27, 1994 (the "Kidder/PSA Letter")),
that is not contained in the Prospectus (without taking into account
information incorporated therein by reference).
(b) Each Underwriter agrees to provide to the Transferor, not
less than two Business Days prior to the date on which the Transferor
is required to file the Prospectus Supplement pursuant to Rule 424(b),
any information used by it (in such written or electronic format as
required by the Transferor) with respect to the offering of the Notes
that constitutes "ABS Term Sheets," as defined in the Commission's
No-Action Letter, dated February 17,
-24-
25
1995, addressed to the Public Securities Association, that is not
contained in the Prospectus (without taking into account information
incorporated therein by reference).
(c) Each Underwriter severally agrees, assuming all
information provided by the Transferor is accurate and complete in all
material respects, to indemnify and hold harmless the Transferor, each
of the officers and directors of the Transferor and each Person who
controls the Transferor within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
of a material fact contained in the Computational Materials or ABS
Term Sheets, if any, provided by such Underwriter, 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, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The obligations of
each Underwriter under this Section 9(c) shall be in addition to any
liability that such Underwriter may otherwise have.
The procedures set forth in Sections 7(c) and 7(d) shall be
equally applicable to this Section 9(c). Notwithstanding anything in this
Section 9, each Underwriter represents and warrants that it has not used any
Computational Materials or ABS Term Sheets in connection with the offering of
the Notes.
10. Electronic Distribution of Prospectus. Each Underwriter represents
that if it furnished an electronic copy of the preliminary Prospectus used in
connection with the Notes to any person, such Underwriter has furnished a
printed copy of such preliminary Prospectus to all Persons to whom it
previously sent an electronic copy.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to:
[Address]
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-25-
26
14. Financial Services Act. Each Underwriter represents and warrants
to, and agrees with, the Transferor and ACCS that (w) it has complied and shall
comply with all applicable provisions of the Financial Services Act 1986 and the
Public Offers of Securities Regulations 1995 (the "Regulations") with respect to
anything done by it in relation to the Notes in, from or otherwise involving the
United Kingdom; (x) 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 Notes 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; (y) it has not offered or sold and, during the period of six months
from the date hereof, will not offer or sell any Note to Persons in the United
Kingdom except to Persons whose ordinary activities involve them in acquiring,
holding, managing, or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Regulations.
-26-
27
If you are in agreement with the foregoing, please sign two
counterparts hereof and return one to the Transferor whereupon this letter and
your acceptance shall become a binding agreement among the Transferor, ACCS and
the Underwriters.
Very truly yours,
ASSOCIATES CREDIT CARD
SERVICES, INC.
By
----------------------------------
Name:
Title:
ASSOCIATES CREDIT CARD
RECEIVABLES CORP.
By
----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[ ]
------------------------------
as Representative of the
Underwriters set forth herein
By
------------------------------
Name:
Title:
-27-
28
SCHEDULE A
Class A Notes
-------------
||
Underwriters Principal Amount of
- ------------ Class A Notes
-------------
$
------------
$
------------
Total $
=============
||
Class B Notes
-------------
||
Underwriters Principal Amount of
- ------------ Class B Notes
-------------
$
$
------------
Total $
=============
||
||
Class C Notes
-------------
||
Underwriters Principal Amount of
- ------------ Class B Notes
-------------
$
$
------------
Total $
=============