EXHIBIT 1.1
FORM OF CLASS A UNDERWRITING AGREEMENT
TRAVELERS BANK CREDIT CARD MASTER TRUST I
$_________ Class A
[Floating-Rate][__%] Asset Backed Certificates
Series 199__-__
_________ __, 199__
[Underwriters]
[Address]
Ladies and Gentlemen:
1. INTRODUCTORY. CC Credit Card Corporation, a Delaware Corporation (the
"TRANSFEROR") proposes to cause the Travelers Bank Credit Card Master Trust I to
issue $ aggregate principal amount of Class A [Floating-Rate][__%] Asset
Backed Certificates, Series 199__-__ (the "CLASS A CERTIFICATES") and $
aggregate principal amount of Class B [Floating-Rate][__%] Asset Backed
Certificates, Series 199__-__ (the "CLASS B CERTIFICATES," and together with the
Class A Certificates, the "CERTIFICATES") pursuant to the Pooling and Servicing
Agreement, dated as of __, 1998, as supplemented by the Series 199__-__
Supplement thereto, to be dated as of __________ __, 199__ (together, the
"POOLING AND SERVICING AGREEMENT") among the Transferor, Travelers Bank & Trust,
fsb, as servicer (in such capacity, the "SERVICER") and The Bank of New York, as
trustee (the "TRUSTEE").
[The Class B Certificates are being sold concurrently herewith
pursuant to an underwriting agreement dated the date hereof (the "CLASS B
UNDERWRITING AGREEMENT"), between the Transferor and the underwriter named
therein (the "CLASS B UNDERWRITER")] [In addition and simultaneously with the
issuance of the Certificates, the Trust will issue $__________ Class C Asset-
Backed Interests, Series 199__ (the "CLASS C INTEREST").] The Class C Interest
will initially be retained by the Transferor. The assets of the Trust (the
"TRUST ASSETS") will include, among other things, certain amounts due (the
"RECEIVABLES") on a pool of MasterCard-Registered Trademark- and Visa-Registered
Trademark- revolving credit card accounts (the "ACCOUNTS") owned by Travelers
Bank & Trust, fsb and The Travelers Bank USA. The Accounts will be selected by
Travelers Bank & Trust, fsb ("TRAVELERS BANK FSB") and by The Travelers Bank
USA ("TRAVELERS BANK USA" and, collectively with
Travelers Bank, fsb, the "BANKS") and designated and the Receivables therein
transferred to the Transferor by the Banks pursuant to separate Receivables
Transfer Agreements, one between Travelers Bank, fsb and the Transferor and the
other between Travelers Bank USA and the Transferor and each dated as of
__________ __, 1998 (collectively, the "RECEIVABLES TRANSFER AGREEMENTS").
Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified in the Pooling and Servicing Agreement.
The Transferor hereby agrees with [_____________, _____________,
_____________, and ________________] (the "UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR. The Transferor
represents and warrants to, and agrees with, the Underwriters that:
(a) The Transferor is a Delaware corporation duly organized and
validly existing in good standing under the laws of the State of Delaware, and
has all requisite corporate power, authority and legal right to own its property
and conduct its business as such properties are presently owned and as such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement, the Certificates, the Pooling and Servicing
Agreement and the Receivables Transfer Agreements (the Pooling and Servicing
Agreement and the Receivables Transfer Agreements, together, the "TRANSACTION
DOCUMENTS").
(b) The execution and delivery of this Agreement, [the Class B
Underwriting Agreement,] the Certificates and each of the Transaction Documents,
the incurrence of the obligations herein and therein set forth and the
consummation of the transactions contemplated hereunder and thereunder have been
duly authorized by the Transferor by all necessary action on the part of the
Transferor.
(c) This Agreement [and the Class B Underwriting Agreement] have been
duly authorized and validly executed and delivered by the Transferor.
(d) Each of the Transaction Documents will be executed and delivered
by the Transferor on or before the Closing Date, and when executed and delivered
by the other parties thereto, will constitute a valid and binding agreement of
the Transferor, enforceable against the Transferor in accordance with its terms,
except 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, and (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.
(e) The Certificates will be issued pursuant to the terms of the
Pooling and Servicing Agreement and, when executed by the Transferor and
authenticated by the Trustee in accordance with the Pooling and Servicing
Agreement and delivered pursuant to this Agreement [and the Class B Underwriting
Agreement], will be validly issued and outstanding and entitled to
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the benefits of the Pooling and Servicing Agreement. The Certificates will be
in all material respects in the form contemplated by the Pooling and Servicing
Agreement and will conform to the description thereof contained in the
Prospectus and Registration Statement, as amended or supplemented.
(f) The Transferor is not 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 or the Trust.
(g) Neither the issuance and sale of the Certificates, nor the
execution and delivery by the Transferor of this Agreement, [the Class B
Underwriting Agreement,] the Certificates or the Transaction Documents, nor the
incurrence by the Transferor of the obligations herein and therein set forth,
nor the consummation of the transactions contemplated hereunder or thereunder,
nor the fulfillment of the terms hereof or 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 Pooling and Servicing Agreement.
(h) 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 of this Agreement, [the Class
B Underwriting Agreement,] the Certificates or the Transaction Documents, 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.
(i) All actions required to be taken by the Transferor as a condition
to the offer and sale of the Certificates as described herein [or in the Class B
Underwriting Agreement] or the consummation of any of the transactions described
in the Prospectus and Registration Statement have been or, prior to the Closing
Date, will be taken.
(j) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939.
(k) The representations and warranties made by the Transferor in the
Pooling and Servicing Agreement and made in any Officer's Certificate of the
Transferor delivered pursuant to the Pooling and Servicing Agreement will be
true and correct at the time made and on and as of the Closing Date as if set
forth herein.
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(l) 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 Pooling and Servicing Agreement, and agrees to take
all action required by the Pooling and Servicing Agreement in order to maintain
the security interest in the Receivables granted pursuant to the Pooling and
Servicing Agreement, and upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trustee will have acquired beneficial
ownership of all of the Transferor's right, title and interest in and to the
Receivables.
(m) A registration statement on Form S-3 (No. 333-40381), including a
form of prospectus and such amendments thereto as may have been required to the
date hereof, relating to the Certificates 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 Securities and Exchange
Commission (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 Certificates 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."
(n) 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 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 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 by the
Underwriters specifically for use therein.
(o) _______________________ are independent public accountants with
respect to the Transferor within the meanings of the Act and the Rules and
Regulations.
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(p) The Trust is not now, and immediately following the sale of the
Certificates pursuant to this Agreement will not be, required to be registered
under the Investment Company Act of 1940, as amended.
3. REPRESENTATIONS AND WARRANTIES OF THE BANKS. Each of the Banks (each,
respectively, a "Bank"), with respect to itself, represents and warrants to, and
agrees with, the Underwriters that:
(a) With respect to Travelers Bank fsb, it is a federally-chartered
savings bank duly organized and validly existing in good standing under the laws
of the United States, and, with respect to Travelers Bank USA, it is a Delaware
state-chartered bank, and the Bank has all requisite corporate power, authority
and legal right to own its property and conduct its business as such properties
are presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and each of the
Transaction Documents to which it is party.
(b) With respect to Travelers Bank USA, it owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to service the Receivables.
(c) The execution and delivery of this Agreement, [the Class B
Underwriting Agreement,] and each of the Transaction Documents to which it is a
party, the incurrence of the obligations herein and therein set forth and the
consummation of the transactions contemplated hereunder and thereunder have been
duly authorized by the Bank by all necessary action on the part of the Bank.
(d) The execution and delivery of this Agreement [and the Class B
Underwriting Agreement] has been duly authorized and delivered by the Bank.
(e) Each of the Transaction Documents to which the Bank is a party
will be executed and delivered by the Bank on or before the Closing Date, and
when executed and delivered by the other parties thereto, will constitute a
valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms, except 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 and (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.
(f) It is not 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
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violations or defaults separately or in the aggregate would have a material
adverse effect on the Bank or the Trust.
(g) Neither the issuance and sale of the Certificates, nor the
execution and delivery by the Bank of this Agreement, [the Class B Underwriting
Agreement,] or the Transaction Documents to which it is a party, nor the
incurrence by 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 hereof or thereof, nor the granting of a security
interest in the Receivables to the Trustee 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 Receivables Transfer Agreement to which it is a
party.
(h) 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 Bank of this Agreement, [the Class B
Underwriting 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.
(i) All actions required to be taken by the Bank as a condition to
the offer and sale of the Certificates as described herein [or in the Class B
Underwriting Agreement] or the consummation of any of the transactions described
in the Prospectus and Registration Statement have been or, prior to the Closing
Date, will be taken.
(j) The representations and warranties made by the Bank in any of the
Transaction Documents to which it is a party and made in any Officer's
Certificate of the Bank delivered pursuant to any of the Transaction Documents
to which it is a party will be true and correct at the time made and on and as
of the Closing Date as if set forth herein.
(k) The Bank has not granted, assigned, pledged or transferred and
shall not grant, assign, pledge or transfer to any Person an ownership interest
or a security interest in, or any other right, title or interest in, the
Receivables, except as provided in the respective Receivables Transfer
Agreement, and it agrees to take all action required by the respective
Receivables Transfer Agreement in order to provide for the transfer of the
Receivables to the Transferor or to maintain the security interest in the
Receivables granted pursuant to the Receivables Transfer Agreement, and upon
execution and delivery of the Pooling and Servicing Agreement by the Trustee,
the Trustee will have acquired beneficial ownership of all of the Bank's right,
title and interest in and to the Receivables.
(l) On the Effective Date, those statements in the Prospectus which
relate to the Bank or to the credit card activities of the bank did not include
any untrue statement of a
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material fact or omit to state any material fact required to be stated therein
or necessary to make the statements relating to the Bank or the credit card
activities of the bank not misleading, and on the date of this Agreement, and at
the time of filing of the Prospectus pursuant to Rule 424(b) the Prospectus such
document does not include, or will not include, any untrue statement of a
material fact and does not omit, and will not 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 based upon written information furnished to the Bank or the Transferor
by the Underwriters specifically for use therein.
(m) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
financial position or results of operations of the Bank, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
4. PURCHASE, SALE, PAYMENT AND DELIVERY OF THE CERTIFICATES.
(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 Underwriters, and the Underwriters agree,
severally, and not jointly, to purchase from the Transferor, at a purchase price
of ____% of the principal amount thereof, $__________aggregate principal amount
of the Class A Certificates set forth opposite the name of such Underwriter on
Schedule A hereto (or such increased principal amount of Class A Certificates as
set forth in Section 13 hereof).
(b) The Transferor will deliver the Class A Certificates to you
against payment of the purchase price in immediately available funds, drawn to
the order of the Transferor, at the office of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP, in New York, New York at 10:00 A.M., New York City time, on __________ __,
199__, or at such other time not later than seven full business days thereafter
as you and the Transferor determine, such time being herein referred to as the
"CLOSING DATE." Each of the Class A Certificates so to be delivered shall be
represented by one or more definitive certificates registered in the name of
Cede & Co., as nominee for The Depository Trust Company. The Transferor shall
make such definitive certificates representing the Class A Certificates
available for inspection by the Underwriters at the office at which the Class A
Certificates 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.
5.OFFERING BY UNDERWRITERS. It is understood that after the Effective
Date, the Underwriters propose to offer the Class A Certificates for sale to the
public (which may include selected dealers) as set forth in the Prospectus.
6.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
Certificates covered thereby
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and the terms thereof not otherwise specified in the Base Prospectus, the price
at which such Certificates are to be purchased by the Underwriters [and the
Class B Underwriter], 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 Class A Certificates or supplement to the Prospectus unless a
copy has been furnished to you for your review a reasonable time prior to the
proposed filing thereof or to which you shall reasonably object to in writing.
The Transferor will advise you 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 Certificates for sale in any 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 Certificates 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 your
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 7.
(c) As soon as practicable, the Transferor will cause the Trust to
make generally available to the Certificateholders 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 you copies of the Registration
Statement (one of which will include all exhibits) and all amendments thereto up
to the Closing Date, the preliminary prospectus related to the Certificates, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as you reasonably request.
(e) The Transferor will endeavor to qualify the Class A Certificates
for sale under the securities or blue sky laws of such jurisdictions as you
shall reasonably request and the determination of the eligibility for investment
of the Class A Certificates under the laws of such jurisdictions as you may
designate and will continue such qualifications in effect so long as required
for the distribution of the Class A Certificates; PROVIDED, HOWEVER, that the
Transferor shall not be obligated to qualify to do business in any jurisdiction
where such qualification would
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subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) For a period from the date of this Agreement until the retirement
of the Class A Certificates, the Transferor will furnish to you or will cause
the Servicer to furnish to you copies of each certificate and the annual
statements of compliance delivered to the Trustee pursuant to Article III of the
Pooling and Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to Article III
of the Pooling and Servicing Agreement, by first class mail as soon as
practicable after such certificates, statements and reports are furnished to the
Trustee.
(g) So long as any Class A Certificate is outstanding, the Transferor
will furnish to you or will cause the Servicer to furnish to you, by first-class
mail as soon as practicable (i) all documents concerning the Certificates
distributed by the Transferor or the Servicer to Certificateholders, 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 Trust or to the Transferor as originator of the
Trust, or pursuant to a "no-action" letter obtained from the staff of the
Commission by the Transferor and affecting the Trust or the Transferor as
originator of the Trust and (iii) from time to time, such other information
concerning the Trust as you 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 you hereunder, the Transferor will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse the
Underwriters for any expenses (including reasonable fees and disbursements of
counsel) incurred by the Underwriters in connection with the preparation of
documents related to the Trust and the Certificates, the preparation, filing and
amendment of the Registration Statement, preparation, issuance and delivery of
the Certificates, qualification of the Class A Certificates for sale and
determination of the eligibility of the Class A Certificates for investment
under the laws of such jurisdictions as you designate and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Class A Certificates, for any filing fee of the National
Association of Securities Dealers, Inc. relating to the Class A Certificates,
and for expenses incurred in preparation, printing and distribution of the
preliminary prospectus and the Prospectus (including any amendments and
supplements thereto).
(i) To the extent, if any, that any of the ratings provided with
respect to the Certificates by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard &
Poor's Ratings Services 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.
7.CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligation of the
Underwriters to purchase and pay for the Class A Certificates will be subject to
the accuracy of the representations and warranties on the part of the Transferor
and the Banks herein, to the accuracy of the statements of officers of the
Transferor and the Banks made pursuant to the
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provisions hereof, to the performance by the Transferor and the Banks of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of this Agreement, the Underwriters shall
have received a letter, dated the date of this Agreement, and a letter on the
Closing Date, dated the Closing Date of ________________, confirming that they
are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder, substantially in the form
heretofore agreed to and otherwise in form and in substance satisfactory to you
and your counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 6(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, the
Banks or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery 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 Transferor or the Banks which, in your judgment, materially impairs the
investment quality of the Certificates; (ii) any downgrading in the rating of
any securities of the Trust or any debt securities of the Transferor or
Commercial Credit Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating), (iii) 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, or any suspension of trading of any
securities of the Transferor or Commercial Credit Company or on any exchange or
in the over-the-counter market; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) 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 if, in your judgment, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Class A Certificates.
(d) You shall have received an opinion, dated the Closing Date, of
__________, [General Counsel] for CC Credit Card Corporation, to the effect
that:
(i) CC Credit Card Corporation (x) has been duly organized and
is validly existing as a corporation under the laws of the State of
Delaware, with power and authority to own its properties and conduct its
business as described in the Prospectus; (y) is duly qualified or has
registered as a foreign corporation to do business in all states, if any,
where the nature of its business requires such qualification or
registration; and (z) has the power, authority and legal right to acquire
and own the Receivables and to carry
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out its duties and obligations under this Agreement, and each of the
Transaction Documents and to transfer the Receivables and the Trust Assets
to the Trust;
(ii) CC Credit Card Corporation has the power and authority to
execute and deliver this Agreement, [the Class B Underwriting Agreement,]
the Pooling and Servicing Agreement, the Receivables Transfer Agreements
and the Certificates and to consummate the transactions contemplated herein
and therein and to the purchase and hold the Class C Interest;
(iii)Each of [the Class B Underwriting Agreement,] the Pooling
and Servicing Agreement, the Receivables Transfer Agreement and the
Certificates has been duly authorized, executed and delivered by CC Credit
Card Corporation;
(iv) This Agreement has been duly authorized, executed and
delivered by CC Credit Card Corporation;
(v) 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; the Registration Statement, the Prospectus and each amendment thereof
or supplement thereto (other than the financial and statistical information
contained therein) on their respective effective dates or dates of issuance
appear on their face to be appropriately responsive in all material
respects to the applicable requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that either the
Registration Statement or the Prospectus, or any such amendment or
supplement, as of such respective dates, 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 amended or supplemented as of the date of such opinion,
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (except that such counsel may express no opinion as to
(y) any financial statements, schedules or other financial data included in
the Registration Statement, the Prospectus, or any such amendment or
supplement, or (z) the exhibits to the Registration Statement); and the
summaries in the Registration Statement and Prospectus of statutes, legal
proceedings, contracts and other documents are accurate and fairly present
the information required to be shown;
(vi) No consent, approval, authorization or order of, or filing
of UCC financing statements with any court or governmental agency or body
having jurisdiction over CC Credit Card Corporation is required for the
consummation of the transactions contemplated by this Agreement, [the Class
B Underwriting Agreement,] the Pooling and Servicing Agreement or the
Receivables Transfer Agreement, except for (x) filing of UCC financing
statements with respect to the transactions contemplated in the Receivables
Transfer Agreements and the Pooling and Servicing Agreement; (y) such
consents, approvals, authorizations, orders or filings as have been
obtained under the Act;
11
and (z) such consents, approvals, authorizations, orders or filings as may
be required under blue sky laws of any jurisdiction;
(vii)The execution, delivery and performance by CC Credit Card
Corporation of this Agreement, [the Class B Underwriting Agreement,] the
Pooling and Servicing Agreement and the Receivables Transfer Agreements,
[the Class C Interest documents], the transfer of the Receivables to the
Trust, the issuance and sale of the Certificates and the consummation of
any other of the transactions contemplated herein or in the Pooling and
Servicing Agreement or the Receivables Transfer Agreements will not
conflict with, result in a breach of or a violation of any of the terms of,
or constitute a default under, (x) the Certificates of Incorporation or
By-Laws of CC Credit Card Corporation or (y) any rule, order, statute or
regulation known to such counsel to be currently applicable to CC Credit
Card Corporation, or (z) any agreement or other instrument, known to such
counsel, to which CC Credit Card Corporation is a party or by which it is
bound; and
(viii)To such counsel's knowledge, there are no actions,
proceedings or investigations pending before any court, administrative
agency or other tribunal (w) asserting the invalidity of this Agreement,
[the Class B Underwriting Agreement,] the Pooling and Servicing Agreement,
the Receivables Transfer Agreements or the Certificates, (x) seeking to
prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, [the Class B Underwriting
Agreement,] the Pooling and Servicing Agreement or the Receivables Transfer
Agreements, (y) which might materially and adversely affect the performance
by CC Credit Card Corporation of its obligations under, or the validity or
enforceability of, this Agreement, [the Class B Underwriting Agreement,]
the Pooling and Servicing Agreement, the Receivables Transfer Agreements or
the Certificates or (z) seeking adversely to affect the federal income tax
attributes of the Certificates as described in the Prospectus under the
headings "Prospectus Summary -- Tax Status" and "Federal Income Tax
Consequences."
(e) You shall have received an opinion, dated the Closing Date, of
__________, [General Counsel] for Travelers Bank fsb and for Travelers Bank USA,
to the effect that:
(i) Travelers Bank fsb has been duly chartered and is validly existing as
a federal savings bank under the laws of the United States and Travelers
Bank USA has been duly chartered and is validly existing as a Delaware
state chartered Bank under the laws of the State of Delaware, and (x) each
Bank has the power and authority to own its properties and conduct its
business as described in the Prospectus; (y) neither is required to
qualify, nor to register as a foreign corporation, in any state in order to
conduct its business, except those states where it has so qualified or
registered or where the failure to so qualify or register would not have a
material adverse effect upon the Certificateholders; and (z) each has the
power, authority and legal right to own the Accounts and to sell, assign,
transfer and grant security rights in the Receivables;
12
(ii)Each Bank has the power and authority to execute and deliver this
Agreement, [the Class B Underwriting Agreement,] and the Receivables
Transfer Agreement to which it is a party and Travelers Bank fsb has the
power and authority to execute and deliver the Pooling and Servicing
Agreement and each Bank has the power and authority to consummate the
transactions contemplated by those documents to which it is a party;
(iii)Each of this Agreement, [the Class B Underwriting Agreement,] and the
respective Receivables Transfer Agreements has been duly authorized,
executed and delivered by the Banks and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by Travelers Bank fsb;
(iv)No consent, approval, authorization or order of, or filing of UCC
financing statements with any court or governmental agency or body having
jurisdiction over the Travelers Bank fsb or Travelers Bank USA is required
for the consummation of the transactions contemplated by this Agreement,
[the Class B Underwriting Agreement,] the Pooling and Servicing Agreement
or the Receivables Transfer Agreements, except for (x) filing of UCC
financing statements with respect to the transactions contemplated in the
Receivables Transfer Agreements; (y) such consents, approvals,
authorizations, orders or filings as have been obtained under the Act; and
(z) such consents, approvals, authorizations, orders or filings as may be
required under blue sky laws of any jurisdiction;
(v)The execution, delivery and performance by Travelers Bank fsb and by
Travelers Bank USA of this Agreement, [the Class B Underwriting Agreement,]
the respective Receivables Transfer Agreements, and, with respect to
Travelers Bank fsb, the Pooling and Servicing Agreement, the transfer of
the Receivables to the Transferor, the issuance and sale of the
Certificates and the consummation of any other of the transactions
contemplated herein or in the Pooling and Servicing Agreement or the
Receivables Transfer Agreements will not conflict with, result in a breach
of or a violation of any of the terms of, or constitute a default under,
(x) the charter or by-laws of the Banks or (y) any rule, order, statute or
regulation known to such counsel to be currently applicable to the
respective Banks, or (z) any agreement or other instrument, known to such
counsel, to which either of the Banks is a party or by which it is bound;
and
(vi) To such counsel's knowledge, there are no actions, proceedings or
investigations pending before any court, administrative agency or other
tribunal (w) asserting the invalidity of this Agreement, [the Class B
Underwriting Agreement,] the Receivables Transfer Agreements or the Pooling
and Servicing Agreement or the Certificates, (x) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, [the Class B Underwriting Agreement,] the
Receivables Transfer Agreements or the Pooling and Servicing Agreement, (y)
which might materially and adversely affect the performance by either of
the Banks of its obligations under, or the validity or enforceability of,
this Agreement, [the Class B Underwriting Agreement,] the Receivables
Transfer Agreements or the Pooling and Servicing Agreement or the
Certificates or (z) seeking adversely to affect the federal
13
income tax attributes of the Certificates as described in the Prospectus
under the headings "Summary of Terms -- Tax Status" and "Federal Income Tax
Consequences."
(f) You shall have received a letter of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
special counsel for the Transferor, to the effect that you may rely on those
provisions of their opinions to ▇▇▇▇▇'▇ Investors Service, Inc. and Standard &
Poor's Ratings Services with respect to certain matters relating to the transfer
of the Receivables to the Transferor and to the Trust, with respect to the
perfection of the Trust's interest in the Receivables, and shall provide that
the characterization of the Trust for federal income tax purposes will be
determinative of the character of the Trust under the laws of the State of
Delaware concerning any tax imposed or measured by income, the Pooling and
Servicing Agreement is a legal, valid and binding obligation of Travelers Bank
fsb and the Transferor, the Certificates are legally issued, fully paid and
nonassessable and entitled to the benefits of the Pooling and Servicing
Agreement and with respect to other related matters.
(g) You shall have received an opinion dated the closing date, of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Transferor, to the
effect that
(i)The Pooling and Servicing Agreement, including the allocation
of Collections provisions thereof, assuming due authorization and execution
and delivery, constitutes the legal, valid and binding obligation of the
Transferor and of Travelers Bank fsb under the laws of the State of New
York, enforceable against the Transferor and Travelers Bank fsb in
accordance with its terms.
(ii)The statements in the Base Prospectus under the headings
"Certain Legal Aspects of the Receivables," "ERISA Considerations" and
"Federal Income Tax Consequences" and the summaries thereof under the
headings "Prospectus Summary -- Tax Status" in the Base Prospectus and
"Summary of Terms -- Tax Status" and "Federal Income Tax Consequences" in
the Prospectus Supplement, to the extent they constitute matters of law or
legal conclusions with respect thereto, have been reviewed by such counsel
and are correct in all material respects.
(iii)This Agreement, the Pooling and Servicing Agreement, the
Receivables Transfer Agreements and the Certificates conform in all
material respects to the descriptions thereof contained in the Prospectus.
(iv)The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
is not now, and immediately following the sale of the Certificates pursuant
to this Agreement will not be, required to be registered under the
Investment Company Act of 1940, as amended.
(v)For federal income tax purposes the Certificates will properly
be characterized as indebtedness and for purposes of Section 6.03(b)(vi) of
the Pooling and Servicing Agreement (a) following the issuance of the
Certificates, the Trust will not be an association (or publicly traded
partnership) taxable as a corporation and (b) the issuance of the
Certificates will not cause or constitute an event in which gain or loss
14
would be recognized by any Investor Certificateholder or the Trust; such
opinion may, however, provide that although the foregoing represents the
firm's views regarding the characteristics of the Trust and the
Certificates for federal income tax purposes attention is directed to the
discussion of alternative characterizations and risks discussed in the Base
Prospectus under the heading "Federal Income Tax Consequences."
(h) You shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
special counsel for the Underwriter, such opinion or opinions, dated the Closing
Date, with respect to such matters relating to this transaction as you may
require, and the Transferor and the Banks shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(i) You shall have received a certificate from CC Credit Card
Corporation, dated the Closing Date, of two Vice Presidents or more senior
officers of CC Credit Card Corporation in which such officers, to the best of
their knowledge after reasonable investigation, shall state that (u) the
representations and warranties of CC Credit Card Corporation in this Agreement
are true and correct in all material respects on and as of the Closing Date, (v)
CC Credit Card Corporation 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 CC Credit Card Company,
as Transferor, in the Pooling and Servicing Agreement are true and correct as of
the dates specified in the Pooling and Servicing Agreement, (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) subsequent
to the date of the Prospectus, there has been no material adverse change in the
financial position or results of operation of CC Credit Card Corporation's or
the Banks' credit card business except as set forth in or contemplated by the
Prospectus.
(j) You shall have received a certificate from Travelers Bank fsb,
dated the Closing Date, of two Vice Presidents or more senior officers of
Travelers Bank fsb in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (u) the representations and
warranties of Travelers Bank fsb in this Agreement are true and correct in all
material respects on and as of the Closing Date, (v) Travelers Bank fsb 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 Travelers Bank fsb, as Servicer, in the
Pooling and Servicing Agreement are true and correct as of the dates specified
in the Pooling and Servicing Agreement, (x) 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, with respect to Travelers Bank fsb
or its business or the Receivables transferred or to be transferred by Travelers
Bank fsb, 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
15
they were made, not misleading, and (y) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial position
or results of operation of Travelers Bank fsb's credit card business except as
set forth in or contemplated by the Prospectus.
(k) You shall have received a certificate from Travelers Bank USA,
dated the Closing Date, of two Vice Presidents or more senior officers of
Travelers Bank USA in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (u) the representations and
warranties of Travelers Bank USA in this Agreement are true and correct in all
material respects on and as of the Closing Date, (v) Travelers Bank USA 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) 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 with
respect to Travelers Bank USA or its business or the Receivables transferred or
to be transferred by Travelers Bank USA, 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 (x) subsequent to the date of the Prospectus, there has been no
material adverse change in the financial position or results of operation of
Travelers Bank USA's credit card business except as set forth in or contemplated
by the Prospectus.
(l) You shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
counsel to the Trustee, addressed to you, dated the Closing Date, satisfactory
in form and substance to you and your counsel and substantially to the effect
that:
(i)The Trustee has been duly incorporated and is validly existing
as a banking corporation under the laws of the State of New York and has
the power and authority to enter into and to perform all actions required
of it under the Pooling and Servicing Agreement;
(ii)The Pooling and Servicing 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, except as such enforceability may be limited by
(y) bankruptcy, insolvency, liquidation, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, as such laws would apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, moratorium or similar occurrence affecting the
Trustee, and (z) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii)The Certificates have been duly authenticated and delivered
by the Trustee;
(iv)The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of the terms
thereof does not conflict with or result in a violation of (y) any law or
regulation of the United States
16
of America or the State of New York governing the banking or trust powers
of the Trustee, or (z) the Certificate of Incorporation or By-Laws of the
Trustee; and
(v)No approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State of
New York having jurisdiction over the banking or trust powers of the
Trustee is required in connection with the execution and delivery by the
Trustee of the Pooling and Servicing Agreement or the performance by the
Trustee thereunder.
(m) You shall have received evidence satisfactory to you that the
Class A Certificates shall be rated Aaa by ▇▇▇▇▇'▇ Investors Service, Inc.
("MOODY'S") and AAA by Standard & Poor's Ratings Services ("S&P") [and that the
Class B Certificates shall be rated no lower than ____ by Moody's and no lower
than ____ by S&P] and neither Moody's nor S&P shall have placed the Certificates
under surveillance or review with possible negative implications.
(n) [Documentation and evidence of the issuance and delivery of and
payment for the Class C Interest.]
(o) The Receivables shall have been transferred to the Trust pursuant
to the Pooling and Servicing Agreement.
The Transferor will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any condition specified in this Section 7 shall not have been
fulfilled, this Agreement may be terminated by the Underwriters by notice to the
Transferor on or prior to the Closing Date and such termination shall be without
liability of any party to any other party except as provided in Section 12
hereof.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Transferor and the Banks
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, the
preliminary 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 foregoing indemnity
with respect to the preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Class A Certificates if such untrue statement or omission or alleged
untrue statement or omission made in the preliminary prospectus is eliminated or
remedied in the Prospectus (as amended or supplemented if the Transferor shall
have furnished any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or
17
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Class A Certificates to such person;
PROVIDED FURTHER, HOWEVER, that neither the Transferor or the Banks will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Transferor by the Underwriters specifically for use therein.
(b) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Transferor and the Banks against any losses, claims,
damages or liabilities to which the Transferor or a Bank or the Banks may become
subject, under the Act or otherwise and will reimburse any legal or other
expenses reasonably incurred by the Transferor 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 preliminary prospectus or 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 such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Transferor by the
Underwriters specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Transferor or the Banks 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 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.
(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
18
such proportion as is appropriate to reflect the relative benefits received by
the Transferor and the Banks on the one hand and the Underwriters on the other
from the offering of the Class A 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 and the
Banks 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 the Banks 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
Class A Certificates received by the Transferor and the Banks bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Class A Certificates. 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 or the Banks or the
Underwriters and the party's relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission with
respect to the Class A Certificates. 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 subdivision (d), the Underwriters shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Class A Certificates underwritten by the Underwriters
and distributed to the public were offered to the public exceeds the amount of
any 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 Class A Certificates. No person guilty of fraudulent
misrepresentation (within the meaning 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 the Banks under this
Section shall be in addition to any liability which the Transferor and the Banks
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, to each
officer of the Transferor who has signed the Registration Statement and to each
person, if any, who controls the Transferor within the meaning of the Act.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor and of the Banks 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 , the Banks or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Class A Certificates. If this
Agreement is terminated or if for any reason other than default by the
Underwriters the purchase of the Class A Certificates by the
19
Underwriters is not consummated, the Transferor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 6 and the respective
obligations of the Transferor, the Banks and the Underwriters pursuant to
Section 8 shall remain in effect. If for any reason the purchase of the Class A
Certificates by the Underwriters is not consummated, the Transferor will
reimburse the Underwriters for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel and reasonable costs and expenses of printing)
reasonably incurred by them in connection with the offering of the Class A
Certificates.
10. 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 Class A Certificates that constitutes "COMPUTATIONAL MATERIALS," as defined
in the Commission's No-Action Letter, dated May 20, 1994, addressed to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇
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 "▇▇▇▇▇▇/PSA LETTER")),
that is not contained in the Prospectus or the preliminary 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 Class A Certificates that constitutes "ABS Term
Sheets," as defined in the Commission's No-Action Letter, dated February 17,
1995, addressed to the Public Securities Association, that is not contained in
the Prospectus or the preliminary prospectus (without taking into account
information incorporated therein by reference).
(c) Each Underwriter severally agrees, assuming all information
provided by the Transferor and the Banks is accurate and complete in all
material respects, to indemnify and hold harmless the Transferor and the Banks,
each of the officers and directors of the Transferor and the Banks and each
person who controls the Transferor or a Bank 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 the
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
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Class A Certificates underwritten
by the Underwriters and distributed to the public were offered to the public
exceeds the amount of any
20
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 Class A Certificates. The obligations of the Underwriter under
this Section 10(c) shall be in addition to any liability that the Underwriter
may otherwise have.
The procedures set forth in Sections 8(c) and 8(d) shall be equally
applicable to this Section 10(c).
11. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to:
_______________ _________________, _______________________________ Attention:
_______________
12. EXPENSES. The Transferor agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder (i) the preparation, printing (or reproduction), and
filing with the Commission of the registration statement (including exhibits
thereto), each preliminary prospectus, the Prospectus, each amendment or
supplement to any of them, this Agreement, the Receivables Transfer Agreements,
and the Pooling and Servicing Agreement; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the registration statement, each preliminary
prospectus, the Prospectus, the exhibits thereto, the underwriting documents,
and all amendments or supplements to any of them, as may be reasonably requested
for use in connection with the offering and sale of the Certificates; (iii) the
preparation, printing (or reproduction), execution and delivery of the
Transaction Documents and the preparation, printing, authentication, issuance
and delivery of the Certificates; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental blue sky memoranda
and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Certificates; (v) the registration of the
Certificates under the Securities Act [and the listing of the Certificates on
the __________ Stock Exchange]; (vi) the registration or qualification of the
Certificates for offer and sale under the securities or blue sky laws of the
several states as provided in Section 6(e) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing (or reproduction), and delivery of the preliminary and
supplemental blue sky memoranda and such registration and qualification); (vii)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filing required to be made with the National Association of
Securities Dealers, Inc. ("NASD") [filing under the NASD's Corporate Financing
Rule not required for non-convertible investment grade securities unless
Schedule E applies to the offering]; (viii) the fees and expenses of the
Trustee; (iv) the fees and expenses associated with obtaining ratings for the
Certificates from national recognized statistical rating organizations; (x) the
transportation and other expenses incurred by or on behalf of the Transferor's
and the Banks' representatives in connection with presentations to prospective
purchasers of the Certificates; and (xi) the fees and expenses of the
Transferor's and the Banks' accountants and the fees and expenses of counsel
(including local and special counsel) for the Transferor.
13. DEFAULT OF AN UNDERWRITER. If any one or more of the Underwriters
shall fail or refuse to purchase Certificates which it or they are obligated to
purchase hereunder, and the aggregate principal amount of Certificates which
such defaulting Underwriter or Underwriters
21
are obligated but fail or refuse to purchase is not more than one-tenth of the
aggregate principal amount of the Certificates, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the principal amount of
Certificates set forth opposite its name on Schedule A hereto bears to the
aggregate principal amount of Certificates set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with the [Agreement Among Underwriters], to purchase the Certificates
which such defaulting Underwriter or Underwriters are obligated, but failed or
refused to purchase. If any Underwriter or Underwriters shall fail or refuse to
purchase Certificates and the aggregate principal amount of Certificates with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Certificates and arrangements satisfactory to you and
the Transferor for the purchase of such Certificates by one or more
non-defaulting Underwriters or other party or parties approved by you and the
Transferor are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Transferor. In any such case which does not result in termination of this
Agreement, either you or the Transferor shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any such default of any such Underwriter under this Agreement. The
term "Underwriter" as used in this Agreement includes, for all purposes in this
Agreement, any party not listed in Schedule A hereto who, with your approval and
the approval of the Transferor, purchases Certificates which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 13 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
14. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Transferor by notice to the Transferor, if prior to the
Closing Date: (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York or Delaware shall have been declared by either
federal or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in your
judgment, impracticable or inadvisable to commence or continue the offering of
the Certificates on the terms set forth on the cover page of the Prospectus or
to enforce contracts for the release of the Certificates by the Underwriters.
Notice of such termination may be given to the Transferor by telegram, telecopy
or telephone and shall be subsequently confirmed by letter.
15. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first and last paragraphs under the
caption "Underwriting" in any preliminary prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 2(n) and 3(l) hereof.
22
16. 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.
17. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
23
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, the Banks and
the Underwriters.
Very truly yours,
CC CREDIT CARD CORPORATION
By:_____________________________
Name:
Title:
The foregoing Agreement is TRAVELERS BANK & TRUST, FSB
hereby confirmed and accepted
as of the date hereof
By:_____________________________
Name:
Title:
____________________________
as Representative of the THE TRAVELERS BANK USA
Underwriters set forth herein
By:_____________________________
By__________________________ Name:
Name: Title:
Title:
[Class A Underwriting Agreement Signature Page]
SCHEDULE A
CLASS A CERTIFICATES
UNDERWRITERS PRINCIPAL AMOUNT OF
CLASS A CERTIFICATES
$
