HSBC CREDIT CARD MASTER NOTE TRUST (USA) I Series 2006-[.] $[.] Class A [Floating Rate] Asset Backed Notes, Series [.] $[.] Class B [Floating Rate] Asset Backed Notes, Series [.] $[.] Class C [Floating Rate] Asset Backed Notes, Series [.] UNDERWRITING...
EXHIBIT 1
Series 2006-[.]
$[.] Class A [Floating Rate] Asset Backed Notes, Series [.]
$[.] Class B [Floating Rate] Asset Backed Notes, Series [.]
$[.] Class C [Floating Rate] Asset Backed Notes, Series [.]
$[.] Class B [Floating Rate] Asset Backed Notes, Series [.]
$[.] Class C [Floating Rate] Asset Backed Notes, Series [.]
[ . ] , 2006
HSBC Securities (USA) Inc.
as Representative of the
Underwriters set forth herein (the “Representative”)
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the
Underwriters set forth herein (the “Representative”)
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
HSBC Bank Nevada, National Association (the “Bank”) has conveyed and proposes to further
convey, from time to time, the receivables (the “Receivables”) that are generated in a portfolio of
certain consumer revolving credit card accounts and other rights and property to HSBC Receivables
Acquisition Company I (“HRAC”), which has conveyed the Receivables to HSBC Receivables Funding Inc.
I (the “Transferor”), which has conveyed and will convey the Receivables to the HSBC Credit Card
Master Note Trust (USA) I (the “Issuer” or the “Trust”), and the Transferor proposes to cause the
Issuer to sell to you and to the underwriters named in Schedule I hereto (the “Underwriters”), for
whom you are acting as representative (the “Representative”), $[.] Class A [Floating Rate] Asset
Backed Notes, Series 2006-___(the “Class A Notes”), $[.] Class B [Floating Rate] Asset Backed
Notes, Series 2006-___(the “Class B Notes”) and $[.] Class C [Floating Rate] Asset Backed Notes,
Series 2006-___(the “Class C Notes” and, together with the Class A Notes and the Class B Notes, the
“Notes”) in the Trust. The Receivables have been, and will from time to time be, conveyed to HRAC
by the Bank pursuant to a Second Amended and Restated Receivables Purchase Agreement, dated as of
July 1, 2002 (the “Bank RPA”), between the Bank and HRAC. The Receivables have been, and will from
time to time be, conveyed to the Transferor by HRAC pursuant to a Second Amended and Restated
Receivables Purchase Agreement, dated as of ___, 2006 (the “Transferor RPA”, and together with the
Bank RPA, the “Receivables Purchase Agreements”), between HRAC and the Transferor. The Receivables
have been, and will from time to time be, conveyed by the Transferor to the Issuer pursuant to a
Second Amended and Restated Transfer and Servicing Agreement, dated as of ___, 2006 (the “Transfer
and Servicing Agreement”), among the Transferor, HSBC Finance Corporation (“HSBC Finance”), as
servicer (the “Servicer”), and the Issuer. The Bank, HRAC and the Transferor are direct or
indirect subsidiaries of HSBC Finance. HSBC Finance and the Transferor are referred to
collectively herein as the “HSBC Entities.”
The Issuer is a Delaware common law trust governed by a Second Amended and Restated Trust
Agreement, dated as of ___, 2006 (the “Trust Agreement”), between the Transferor and
Wilmington Trust Company (“WTC”), as owner trustee (the “Owner Trustee”).
The Notes will be issued pursuant to a Second Amended and Restated Master Indenture, dated as
of ___, 2006 (the “Master Indenture”), between the Issuer and Xxxxx Fargo Bank, National
Association, as indenture trustee (the “Indenture Trustee”), as supplemented by the Series 2006-[
] Indenture Supplement with respect to the Notes to be dated as of ___, 2006 (the “Indenture
Supplement,” and together with the Master Indenture, the “Indenture”). The Transfer and Servicing
Agreement, the Receivables Purchase Agreements, the Indenture and the Trust Agreement are referred
to herein, collectively, as the “Transaction Documents.”
The Notes will be sold pursuant to this Underwriting Agreement (this “Agreement”) and will
represent undivided interests in certain assets of the Trust (as hereinafter described).
Capitalized terms used herein without definition shall have the meanings set forth in the
Transaction Documents.
At or prior to the time the first “contract of sale” within the meaning contemplated by Rule
159 under the Securities Act of 1933, as amended (the “Act”), was entered into, which was
approximately ___on ___, 2006 (the “Time of Sale”), the Transferor and Issuer had prepared
the preliminary prospectus supplement dated ___, 2006 (the “Preliminary Prospectus Supplement”)
to the Base Prospectus (as defined below) (collectively the “Preliminary Prospectus”) If,
subsequent to the Time of Sale and prior to the Closing Date, such information included an untrue
statement of material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading
and the Underwriters terminate their old “Contracts of Sale” (within the meaning of Rule 159 under
the Act) and enter into new contracts of sale with investors in the Notes, then the “Preliminary
Prospectus” will refer to the information conveyed to investors at the time of entry into such new
Contract of Sale, in an amended Preliminary Prospectus approved by the Transferor and the
Representative that corrects such material misstatements or omissions (a “Corrected Prospectus”)
and “Time of Sale” will refer to the time and date on which such new Contracts of Sale were entered
into.
Section 1. Representations and Warranties of the Transferor and HSBC Finance.
(a) Each of the Transferor and HSBC Finance, each as to itself, represents and warrants to,
and agrees with, each Underwriter as set forth in this Section 1(a). Certain terms used in this
Section 1(a) are defined in the second paragraph of subsection 1(a)(i) below.
(i) The Transferor meets the requirements for use of Form S-3 under the Act, as
set forth in the General Instructions to Form S-3, and the conditions of Rule 415
under the Act have been satisfied. A registration statement on Form S-3 (No. [.]),
including a form of Prospectus (as defined below) and such amendments thereto as may
have been filed prior to the date hereof, relating to the
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Notes and the offering thereof in accordance with Rule 415 under the Act, has
been filed by the Transferor 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 and is still effective as of the date
hereof.
The terms which follow, when used in this Agreement, shall have the meanings
indicated. The term “Effective Date” shall mean the most recent date as of which
the Registration Statement was declared effective by the Commission or any later
date determined pursuant to Rule 430(B)(f)(2). “Execution Time” shall mean the date
and time that this Agreement is executed and delivered by the parties hereto.
“Registration Statement” shall mean the registration statement referred to in the
preceding paragraph and any registration statement required to be filed under the
Act or rules thereunder, including amendments, all material incorporated by
reference therein and including all information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430B under the
Act, exhibits and financial statements, in the form in which it has or shall become
effective and, in the event that any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended. “Rule 424” refers to such rule under the Act.
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.”
(ii) On the Effective Date, the Registration Statement and as of the applicable
effective date as to each part thereof pursuant to Rule 430B(f)(2) and any amendment
thereto under the Act, 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 and the Closing Date, the Registration Statement and the
Prospectus comply, and at the time of filing of the Prospectus pursuant to Rule
424(b) the Registration Statement and the Prospectus will comply, 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
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misleading; provided, however, that neither HSBC Finance nor
the Transferor makes representations or warranties as to the information contained
in or omitted from the Registration Statement or the Prospectus (or any supplements
thereto) in reliance upon and in conformity with the Underwriter Information (as
defined below).
(iii) The Preliminary Prospectus, at the Time of Sale, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that
neither the Transferor nor HSBC makes any representation or warranty with respect to
information omitted from such Preliminary Prospectus in reliance on Rule 430B under
the Act or with respect to any statements or omissions made in reliance upon and in
conformity with the information contained in the [___and ___] paragraphs
under the caption “UNDERWRITING” in the Prospectus (the “Underwriter Information”).
(iv) Since the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectus and the Prospectus, there has not
been any material adverse change in the general affairs, management, financial
condition or results of operations of either the Transferor, HSBC Finance or the
Issuer, or their subsidiaries (other than as contemplated in the Registration
Statement, the Preliminary Prospectus and the Prospectus, as the case may be or in
reports filed by HSBC Finance with the Commission pursuant to the Act) which would
be expected to have a material adverse effect on either the ability of such person
to consummate the transactions contemplated by, or to perform its respective
obligations under, this Agreement, as applicable, or any of the Transaction
Documents to which it is a party considered in the aggregate;
(v) The Transferor is a corporation duly organized and validly existing and in
good standing under the laws of its jurisdiction of incorporation. The Transferor
has all requisite power and authority to own its properties and conduct its business
as presently conducted and to perform its obligations under this Agreement and the
Transaction Documents and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction which requires such
qualification, except where failure to be so qualified would not have a material
adverse effect on the business or consolidated financial condition of the
Transferor.
(vi) The Transferor is not in violation of its charter, or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it may be bound, or to
which any of the property or assets of the Transferor, is subject, except where any
such violation would not have a material adverse effect on the transactions
contemplated by this Agreement, as applicable.
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(vii) The execution, delivery and performance by the Transferor of each of this
Agreement, the Transferor RPA, the Transfer and Servicing Agreement and the Trust
Agreement and the consummation of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary action or proceedings and
will not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Transferor pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Transferor is a party or by
which it may be bound, or to which any of the property or assets of the Transferor
is subject, nor will such action result in any violation of the provisions of the
charter or by-laws of the Transferor or any applicable law, administrative
regulation or administrative or court decree, except where any such conflict,
breach, default, encumbrance or violation would not have a material adverse effect
on the transactions contemplated by this Agreement.
(viii) This Agreement, the Transferor RPA, the Transfer and Servicing Agreement
and the Trust Agreement have been duly executed and delivered by the Transferor; and
such agreements constitute legal, valid and binding instruments enforceable against
the Transferor in accordance with their respective terms, subject as to
enforceability (A) to applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting creditors’ rights generally and the rights and
remedies of creditors of thrifts, savings institutions or national banking
associations, (B) to general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (C) with respect to rights of
indemnity under this Agreement, to limitations of public policy under applicable
securities laws.
(ix) The Notes have been duly and validly authorized, and, when validly
executed, authenticated, issued and delivered in accordance with the Indenture and
as provided herein will conform in all material respects to the description thereof
contained in the Prospectus Supplement and the Base Prospectus and will be validly
issued and outstanding and entitled to the benefits of the Indenture.
(x) There are no legal or governmental proceedings pending, or to the knowledge
of the Transferor threatened, to which the Transferor is a party or of which any
property of any of them is the subject, other than proceedings which are not
reasonably expected, individually or in the aggregate, to have a material adverse
effect on the shareholder’s equity or consolidated financial position of such person
and its subsidiaries taken as a whole, or which would have a material adverse effect
upon the consummation of this Agreement.
(xi) KPMG LLP (“KPMG”) is an independent public accountant with respect to the
Transferor and HSBC Finance, as required by the Act and the Rules and Regulations.
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(xii) No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or governmental agency or body
of the United States is required for the issue and sale of the Notes, or the
consummation by the Transferor of the other transactions contemplated by this
Agreement or any Transaction Document to which it is a party, except for (A) the
registration under the Act of the Notes, (B) such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses or permits,
as applicable, as have been obtained or as may be required under State securities or
Blue Sky laws in connection with the purchase of the Notes and the subsequent
distribution of the Notes by the Underwriters or (C) where the failure to obtain
such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material adverse effect on the
business or consolidated financial condition of the Transferor or the transactions
contemplated by such agreements.
(xiii) The Transferor will not conduct its operations while any of the Notes
are outstanding in a manner that would require the Transferor or the Issuer to be
registered as an “investment company” under the Investment Company Act of 1940, as
amended (the “1940 Act”) as in effect on the date hereof.
(xiv) The Transferor is not an “ineligible issuer” as defined in Rule 405 under
the Act.
(b) HSBC Finance represents and warrants to, and agrees with, each Underwriter as set forth in
this Section 1(b).
(i) HSBC Finance is a corporation duly organized and validly existing and in
good standing under the laws of its jurisdiction of incorporation. HSBC Finance has
all requisite power and authority to own its properties and conduct its business as
presently conducted and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction which requires such
qualification, except where the failure to have such power and authority or to be so
qualified would not have a material adverse effect on the business or consolidated
financial condition of HSBC Finance and its subsidiaries taken as a whole or the
transactions contemplated by this Agreement.
(ii) HSBC Finance is not in violation of its restated articles of incorporation
or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument material to the business HSBC Finance and
its subsidiaries, to which HSBC Finance is a party or by which it may be bound, or
to which any of the property or assets of HSBC Finance is subject, except where any
such violation or default would not have a material adverse effect on the business
or consolidated financial condition of HSBC Finance or the transactions contemplated
by this Agreement.
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(iii) The execution, delivery and performance by HSBC Finance of this Agreement
and the Transfer and Servicing Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary action or proceedings and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of HSBC Finance pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument material to the
business of HSBC Finance and its subsidiaries to which HSBC Finance is a party or by
which it may be bound, or to which any of the property or assets of HSBC Finance is
subject, nor will such action result in any violation of the provisions of the
charter or by-laws of HSBC Finance or any applicable law, administrative regulation
or administrative or court decree, except where any such conflict, breach, default,
encumbrance or violation would not have a material adverse effect on the business or
consolidated financial condition of HSBC Finance or the transactions contemplated by
this Agreement.
(iv) This Agreement and the Transfer and Servicing Agreement have been duly
executed and delivered by HSBC Finance; the Bank RPA and the Transferor RPA have
been duly executed and delivered by HRAC; and the Bank RPA has been duly executed
and delivered by the Bank; and such agreements constitute legal, valid and binding
instruments enforceable against such parties thereto in accordance with their
respective terms, subject as to enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting creditors’
rights generally, (B) to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (C) with respect to
rights of indemnity under this Agreement, to limitations of public policy under
applicable securities laws.
(v) HSBC Finance will, upon request by the Representatives, provide to the
Representatives complete and correct copies of all reports filed by it with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), during 2006. Except as set forth in or contemplated in such
reports, there has been no material adverse change in the business or the
consolidated financial condition of HSBC Finance and its subsidiaries taken as a
whole since the respective dates as of which any information is given in the
Preliminary Prospectus or the Prospectus.
(vi) There are no legal or governmental proceedings pending, or to the
knowledge of HSBC Finance threatened, to which HSBC Finance is a party or of which
any of its property is the subject, other than proceedings which are not reasonably
expected, individually, or in the aggregate, to have a material adverse effect on
the shareholder’s equity or consolidated financial position of HSBC Finance and its
subsidiaries taken as a whole or which would have a material adverse effect upon the
consummation of this Agreement and the transactions contemplated hereby.
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(vii) No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or governmental agency or body
of the United States is required for the consummation by HSBC Finance of the
transactions contemplated by this Agreement and the Transfer and Servicing
Agreement, except for (A) the registration under the Act of the Notes, (B) such
consents, approvals, authorizations, orders, registrations, filings, qualifications,
licenses or permits as have been obtained or as may be required under state
securities or Blue Sky laws in connection with the purchase of the Notes and the
subsequent distribution of the Notes by the Underwriters or (C) where the failure to
obtain such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material adverse effect on the
business or consolidated financial condition of HSBC Finance and its subsidiaries
taken as a whole or the transactions contemplated by such agreements.
(c) Any certificate signed by an officer on behalf of any of the HSBC Entities and delivered
to the Underwriters or counsel for the Underwriters in connection with an offering of the Notes
shall be deemed, and shall state that it is, a representation and warranty as to the matters
covered thereby to each person to whom the representations and warranties in this Section 1 are
made.
Section 2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the covenants, representations
and warranties herein set forth, the Transferor agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Transferor the
principal amount of Class A Notes set forth opposite such Underwriter’s name in Schedule I pursuant
to the terms of this Agreement at a purchase price equal to [.]% of the aggregate principal amount
represented by the Class A Notes.
(b) Subject to the terms and conditions and in reliance upon the covenants, representations
and warranties herein set forth, the Transferor agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Transferor the
principal amount of Class B Notes set forth opposite such Underwriter’s name in Schedule I pursuant
to the terms of this Agreement at a purchase price equal to [.]% of the aggregate principal amount
represented by the Class B Notes.
(c) Subject to the terms and conditions and in reliance upon the covenants, representations
and warranties herein set forth, the Transferor agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the, Transferor the
principal amount of Class C Notes set forth opposite such Underwriter’s name in Schedule I pursuant
to the terms of this Agreement at a purchase price equal to [.]% of the aggregate principal amount
represented by the Class C Notes.
Section 3. Delivery and Payment.
Delivery of and payment for the Notes to be purchased by the Underwriters in accordance with
this Agreement shall be made at 9:00 A.M. at the offices of XxXxxxxxx Will &
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Xxxxx LLP on 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on ___, 2006 which date,
time or place may be postponed or changed by agreement between the Representatives and the
Transferor (such date and time of delivery and payment for the Notes being herein referred to as
the “Closing Date”). Delivery of one or more global notes representing the Notes shall be made to
the accounts of the several Underwriters against payment by the several Underwriters of the
purchase price therefor, to or upon the order of the Transferor by one or more wire transfers in
immediately available funds. The global notes to be so delivered shall be registered in the name
of Cede & Co., as nominee for The Depository Trust Company (“DTC”). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC and participating
members thereof. Definitive Notes representing the Notes will be available only under limited
circumstances as described in the Indenture.
The Transferor agrees to have copies of the global notes or the Definitive Notes available for
inspection, checking and packaging by the Underwriters in New York, New York, not later than 1:00
p.m., New York City time, on the business day prior to the Closing Date.
Section 4. Offering by Underwriters.
Each Underwriter severally represents, warrants and covenants as follows:
(a) Such Underwriter shall offer and/or solicit offers for the Notes for sale to the public as
set forth in the Preliminary Prospectus and the Prospectus and agrees that all offers,
solicitations and sales shall be made in compliance with all applicable laws and regulations.
Furthermore, such Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including, but not limited to, Rules 164 and 433 of the
Rules and Regulations.
(b) No Underwriter shall convey or deliver any “written communication” within the meaning of
Rule 405 of the Act to any person in connection with the offering of the Notes, unless such written
communication is: (a) the Prospectus; (b) the Preliminary Prospectus; (c) an Underwriter Free
Writing Prospectus that constitutes a Bloomberg Information; (d) a written confirmation of sale or a
notice of allocation of securities sold or to be sold made in reliance on Rule 172 of the Rules and
Regulations or (e) such other written communication specifically agreed to by HSBC Finance and the
Underwriters. “Bloomberg Information” means customary information provided by an Underwriter to
Bloomberg, for use by investors and prospective investors (following delivery of the Preliminary
Prospectus) that does not contain information other than identifying information relating to the
Trust and the Notes; the nature of the offering, the expected pricing date, the expected closing
date and first payment date for the Notes; expected principal amount and class amounts, principal
payment windows; pricing speeds/prepayment assumptions; duration/modified duration; expected
weighted average life, expected ratings, expected final payment date, expected legal final payment
date and expected interest rate index; preliminary guidance as to the interest rate and/or yield
the Notes (but not final interest rate or yield information); names of lead managers and
co-managers; information about the principal amount of the Notes; average lives; ratings and
ratings agencies; 100% pot vs. retention status; percent interest only; geographic concentration;
2a-7 eligibility; other similar or related information such as expected pricing parameters and
benchmarks; pricing guidance; status of subscriptions and Underwriters’ retentions and ERISA
eligibility; provided that,
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references to “expected” in the foregoing includes ranges, windows or references to
benchmarks.
(c) Each Underwriter severally agrees that if it is a foreign broker-dealer not eligible for
membership in the National Association of Securities Dealers, Inc. (the “NASD”), it will not
effect any transaction in the Notes within the United States or induce or attempt to induce the
purchase of or sale of the Notes within the United States, except that it shall be permitted to
make sales to the other Underwriters or to its United States affiliates provided that such sales
are made in compliance with an exemption of certain foreign brokers or dealers under Rule 15a-6
under the Exchange Act and in conformity with the NASD’s Conduct Rules as such Rules apply to
non-NASD brokers or dealers.
(d) Each Underwriter severally represents and agrees that (i) it has only communicated or
caused to be communicated and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the “FSMA”) received by it in connection with the issue or sale of
any Notes in circumstances in which section 21(1) of the FSMA does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(e) In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”), such Underwriter has not made and will not make an offer of Notes to the
public in that Relevant Member State prior to the publication of a prospectus in relation to the
Notes that has been approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the competent authority in
that Relevant Member State, all in accordance with the Prospectus Directive, except that it may,
with effect from and including the Relevant Implementation Date, make an offer of Notes to the
public in that Relevant Member State at any time:
(i) to legal entities that are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely to invest
in securities;
(ii) to any legal entity that has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than €43,000,000
and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances that do not require the publication by the issuer
entity of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, (A) the expression an “offer of Notes to the
public” in relation to any Notes in any Relevant Member State means the communication
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in any form and by any means of sufficient information on the terms of the offer and
the Notes to be offered so as to enable an investor to decide to purchase or subscribe the
Notes, as the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and (B) the expression “Prospectus Directive”
means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
The countries comprising the “European Economic Area” are Austria, Belgium, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovak Republic,
Slovenia, Spain, Sweden, United Kingdom, Iceland, Liechtenstein and Norway.
(f) Such Underwriter has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Notes in, from or otherwise involving the
United Kingdom.
(g) Such Underwriter and each of its affiliates (i) has anti-money laundering policies and
procedures in place in accordance with the requirements imposed by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, as amended, and any rules and regulations promulgated thereunder, and the Foreign
Assets Control Regulations issued by the Office of Foreign Assets Control of the United States
Department of the Treasury, in each case to the extent applicable to them; and (ii) has implemented
an anti-money laundering compliance program pursuant to NASD Rule 3011, to the extent applicable to
them.
Section 5. Agreements.
Each of the HSBC Entities, each as to itself, covenants and agrees with the several
Underwriters that:
(a) The Transferor will prepare a Preliminary Prospectus and Prospectus, and will transmit the
Preliminary Prospectus and Prospectus, 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), in each case
no later than the time specified by such Rule. The Transferor will promptly advise the
Representatives (i) when the Registration Statement shall have become effective, (ii) when any
amendment thereof shall have become effective, (iii) of the receipt of any comments from the
Commission with respect to the Prospectus, (iv) of any request by the Commission for any amendment
or supplement of the Registration Statement or the Prospectus or any Preliminary Prospectus or for
any additional information, (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of any proceeding for
that purpose, and (vi) of the receipt by the Transferor of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Transferor will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Preliminary Prospectus to which the
Representatives reasonably object. The Transferor will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon
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as possible the withdrawal thereof. The Transferor will file with the Commission any Free
Writing Prospectus delivered to investors in accordance with Section 7 as the Transferor is
required to file under the Act and the Rules and Regulations, and to do so within the applicable
period of time required under the Act and the Rules and Regulations, provided that, the Transferor
receives such Free Writing Prospectus from the Underwriters in accordance with Section 7(g) hereof.
(b) The Transferor will give the Underwriters notice of its intention to file any amendment to
the Registration Statement or any amendment, supplement or revision to any of the Base Prospectus,
the Preliminary Prospectus or the Prospectus, whether pursuant to the Act, the Exchange Act or
otherwise (other than reports to be filed pursuant to the Exchange Act), will furnish the
Representative with copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall reasonably object.
(c) The Transferor has furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference therein) as of the
date hereof and conformed copies of all consents and certificates of experts. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters will be identical,
in all material respects, to the electronic versions thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) 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 supplemented would include
any untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or amend or supplement such Prospectus
to comply with the Act or the Rules and Regulations, the Transferor shall be required to notify the
Representative and shall, at its expense (unless such information is Underwriter Information or is
otherwise with respect to the Underwriters in which case it shall be at the Underwriters’ expense),
promptly prepare and file with the Commission and furnish without charge to each Underwriter as
many copies as such Underwriter may from time to time reasonably request of an amended Registration
Statement, Prospectus or a supplement to the Prospectus which shall correct such statement or
omission or effect such compliance.
(e) The Transferor will furnish to the Underwriters, without charge, during the period when
the Prospectus is required to be delivered under the Act or the Exchange Act, such number of copies
of the Preliminary Prospectus and the Prospectus (both as amended or supplemented) as the
Underwriters may reasonably request. The Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be identical, in all material
respects, to the electronic versions thereof filed with the Commission, except to the extent
permitted by Regulation S-T. The Transferor and HSBC Finance severally, and not jointly, agree to
pay all expenses incidental to the performance of their obligations under this Agreement, including
without limitation those related to (i) preparing and filing the
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Registration Statement, the Prospectus and all amendments thereto and documents incorporated
by reference therein (including exhibits), (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of XxXxxxxxx Will & Xxxxx LLP, as special counsel for the
Transferor and HSBC Finance, and KPMG, accountants of the Transferor and HSBC Finance (except as
specified below), (iv) any qualification of the Notes under state securities and Blue Sky laws and
the determination of the eligibility of the Notes for investment in accordance with the provisions
of subsection 5(e) below including filing fees, and the fees and disbursements of Mayer, Brown,
Xxxx & Maw LLP, as counsel for the Underwriters (not to exceed $10,000) in connection therewith and
in connection with the preparation of any Blue Sky Survey, (v) the printing and delivery to the
Underwriters, in such quantities as the Underwriters may reasonably request, of copies of the
Registration Statement, the Preliminary Prospectus and the Prospectus and all amendments and
supplements thereto, and of any Blue Sky Survey, (vi) the fees charged by nationally recognized
statistical rating agencies for rating the Notes and (viii) the fees and expenses of the Indenture
Trustee, the Owner Trustee and their respective counsel. It is understood that, except as
expressly provided in this Section 5, the Underwriters will pay all of their own expenses,
including (i) the fees and disbursements of counsel to the Underwriters, (ii) expenses related to
the overnight delivery to the Underwriters of copies of the Preliminary Prospectus and the
Prospectus and (iii) any transfer taxes on resale of any of the Notes and advertising expenses
connected with any offers that Underwriters may make.
(f) The Transferor will take all reasonable actions requested by the Underwriters to arrange
for the qualification of the Notes for sale under the laws of such jurisdictions within the United
States.
(g) To the extent, if any, that any rating provided with respect to the Notes set forth in
Sections 6(j), (k) and (l) hereof is conditional upon the furnishing of documents reasonably
available to the HSBC Entities, the HSBC Entities shall furnish such documents.
(h) The Transferor, during the period when the Prospectus is required to be delivered under
the Act or the Exchange Act, will file all documents required to be filed with the Commission
pursuant to the Exchange Act within the time periods required by the Exchange Act.
(i) The Transferor will not, during the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading restrictions on the Notes,
as notified to the Transferor by the Representative, and (ii) the Closing Date for the Notes,
offer, sell, contract to sell or otherwise dispose of any debt securities of the Transferor that
are substantially similar to the Notes in a public offering registered under the Act, without the
prior written consent of the Representative; provided, however, that in no event shall the
foregoing period extend more than [five (5)] Business Days from the date of this Agreement.
(j) The Transferor will cooperate with the Underwriters and use its best efforts to permit the
Notes to be eligible for clearance and settlement through the facilities of DTC.
(k) The Transferor shall apply the net proceeds from the sale of the Notes in the manner set
forth in the Prospectus.
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Section 6. Conditions of Closing; Termination of Rights under Section 2.
The obligations of the Underwriters to purchase and pay for the Notes on the Closing Date
shall be subject to the material accuracy of the representations and warranties of the HSBC
Entities contained herein as of the Execution Time and as of the Closing Date, to the material
accuracy of the statements of the HSBC Entities made in any certificates delivered pursuant to the
provisions hereof, to the performance by the HSBC Entities of their obligations hereunder and to
the following additional conditions:
(a) The Prospectus, the Preliminary Prospectus and each Free Writing Prospectus required to be
filed with the Commission 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 or the use of the Preliminary Prospectus
or the Prospectus shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Each of the HSBC Entities shall have delivered a certificate, dated as of the Closing
Date, signed by its President or any Vice President and its principal financial or principal
accounting officer or its Treasurer or any Assistant Treasurer or its Secretary or any Assistant
Secretary to the effect that the signers of such certificate, on behalf of the named HSBC Entity,
have carefully examined this Agreement, each of the Transaction Documents, the Preliminary
Prospectus, the Prospectus (and any supplements thereto) and the Registration Statement, stating
that:
(i) the representations and warranties of such HSBC Entity in this Agreement
and each of the Transaction Documents are true and correct in all material respects
at and as of the date of such certificate as if made on and as of such date (except
to the extent they expressly relate to an earlier date);
(ii) such HSBC Entity has complied, in all material respects, with all the
agreements and satisfied, in all material respects, all the conditions on its part
to be performed or satisfied at or prior to the date of such certificate;
(iii) nothing has come to the attention of such HSBC Entity that would lead it
to believe that the Registration Statement contains any untrue statement of a
material fact or omits 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
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the xxxxxx, threatened.
(c) Xxxxxxx X. Xxxxxxxx, Vice President — Deputy General Counsel-Corporate and Assistant
Secretary, as counsel for the HSBC Entities, shall have delivered a favorable opinion with respect
to clauses (i) through (x) of this paragraph (c); and XxXxxxxxx Will & Xxxxx LLP, special counsel
to the HSBC Entities, shall have delivered a favorable opinion with respect to clauses (xi) through
(xv). Each opinion shall be dated the Closing Date and
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satisfactory in form and substance to the Representatives and counsel for the Underwriters, to
the effect that:
(i) each of HSBC Finance and the Transferor is duly incorporated and validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation with corporate power and authority to own its properties and to
conduct its business, except where failure to have such power and authority do not
have a material adverse effect, as the case may be, on the business or consolidated
financial condition of HSBC Finance and its subsidiaries, taken as a whole, or the
Transferor, to enter into and perform its obligations under this Agreement and the
Transaction Documents which it is a party thereto and to consummate the transactions
contemplated hereby and thereby;
(ii) this Agreement and each of the Transaction Documents have been duly
authorized, executed and delivered by HSBC Finance, or the Transferor, as the case
may be, and, when executed by the Indenture Trustee and the Representatives,
constitute the legal, valid and binding agreement of HSBC Finance or the Transferor,
as the case may be, enforceable in accordance with its terms subject, as to
enforceability (A) to applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting creditors’ rights generally and the rights and
remedies of creditors of thrifts, savings institutions or national banking
associations, (B) to general principles of equity (regardless of whether enforcement
is sought in a proceedings in equity or at law) and (C) with respect to rights of
indemnity under this Agreement, to limitations of public policy under applicable
securities laws;
(iii) the Notes have been duly created and, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued and outstanding,
enforceable in accordance with their terms, subject, as to enforceability (A) to
applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors’ rights generally and the rights and remedies of creditors of
thrifts, savings institutions or national banking associations and (B) to general
principles of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(iv) neither the execution nor the delivery of this Agreement or any
Transaction Document nor the issuance or delivery of the Notes, nor the consummation
of any of the transactions contemplated herein or therein, nor the fulfillment of
the terms of the Notes, this Agreement or any Transaction Document will conflict
with or violate any term or provision of the charter, by-laws or organizational
documents of any of the applicable HSBC Entities, as the case may be, or result in a
breach or violation or acceleration of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of any
of the applicable HSBC Entities pursuant to, any material statute currently
applicable to any of them or any order or regulation known to such counsel to be
currently applicable to any of them of any court,
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regulatory body, administrative agency or governmental body having jurisdiction
over the Transferor, as the case may be, or the terms of any indenture or other
agreement or instrument known to such counsel to which any of the applicable HSBC
Entities is a party or by which any of them or any of their properties are bound,
except where any such conflict, breach, violation, default or encumbrance would not
have a material adverse effect on the transactions contemplated by this Agreement;
(v) to the best knowledge of such counsel, there is no pending or threatened
action, suit or proceeding before any court or governmental agency, authority or
body or any arbitrator with respect to this Agreement, the Notes or the Transaction
Documents or any of the transactions contemplated herein or therein or with respect
to the HSBC Entities which, in the case of any such action, suit or proceeding with
respect to any of them, would have a material adverse effect on the Noteholders or
upon the ability of any of them to perform their obligations under or the validity
or enforceability of any of such agreements or the Notes; and the statements
included in the Registration Statement and Prospectus describing statutes (other
than those relating to tax and ERISA matters), legal proceedings, contracts and
other documents (other than financial statements and other financial and statistical
information contained therein as to which such counsel need express no opinion)
fairly summarize the matters therein described;
(vi) the Registration Statement has become effective under the Act; any
required filing of the Preliminary Prospectus, the Prospectus, any supplement
thereto pursuant to Rule 424 has been made in the manner and within the time period
required by Rule 424; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened; the Registration
Statement the Preliminary Prospectus and the Prospectus (and any supplements
thereto) (other than financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the rules thereunder;
(vii) such counsel has no reason to believe that at any Effective Date the
Registration Statement (excluding any exhibits filed therewith) 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 the
Preliminary Prospectus, as of the Time of Sale, or the Prospectus, as of its date
and the date of such opinion, includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (other than financial
and statistical information contained therein as to which such counsel need express
no opinion);
(viii) no consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court, federal or state governmental
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agency or regulatory body is required for any HSBC Entity to consummate the
transactions contemplated in this Agreement or the Transaction Documents, except (A)
such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits as have been made or obtained or as may be
required under the State securities or blue sky laws of any jurisdiction in
connection with the purchase of the Notes by the Underwriters and the subsequent
distribution of the Notes by the Underwriters or (B) where the failure to have such
consents, approvals, authorizations, orders, registrations, filings, qualifications,
licenses or permits would not have a material adverse effect on the Issuer’s
interests in the Receivables or the transactions contemplated by such agreements;
(ix) the Notes, this Agreement and the Transaction Documents conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus;
(x) the statements in the Prospectus under the heading “Material Legal Aspects
of the Receivables” to the extent that they constitute statements of matters of law
or legal conclusions with respect thereto, have been prepared or reviewed by such
counsel or attorneys under the control of such counsel and are correct in all
material respects;
(xi) 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 Commission thereunder;
(xii) the Issuer is not required to be registered as an “investment company”
under the 1940 Act;
(xiii) to the extent that the transfer of the Receivables by HRAC to the
Transferor does not constitute an absolute assignment of such Receivables, the
Transferor RPA creates in favor of the Transferor a security interest in the rights
of HRAC in such Receivables, and to the extent that the transfer of the Receivables
by the Transferor to the Issuer does not constitute an absolute assignment of such
Receivables, the Transfer and Servicing Agreement creates in favor of the Issuer a
security interest in the rights of the Transferor in such Receivables.
(xiv) the Indenture creates in favor of the Indenture Trustee a security
interest in the rights of the Issuer in the Receivables; and
(xv) the statements in the Base Prospectus under the headings “Prospectus
Summary—Tax Status” and “Material Federal Income Tax Consequences,” and in the
Prospectus Supplement under the headings “Prospectus Supplement Summary — Material
Federal Income Tax Consequences” and “Tax Matters” to the extent that they
constitute statements of matters of law or legal conclusions with respect thereto,
have been prepared or reviewed by such counsel and accurately describe the material
Federal income tax
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consequences to holders of the Notes and the statements in the Base Prospectus
and Prospectus under the heading “ERISA Considerations,” to the extent that they
constitute statements of matters of law or legal conclusions with respect thereto,
have been prepared or reviewed by such counsel and accurately describe the material
consequences to holders of the Notes under XXXXX.
In rendering such opinion, counsel may rely (A) as to matters involving the application of the
law of any jurisdiction other than (i) with respect to the opinion delivered by Xxxxxxx X.
Xxxxxxxx, Vice President — Deputy General Counsel-Corporate and Assistant Secretary of HSBC
Finance, the State of Illinois, the United States Federal laws and the corporation law of the State
of Delaware and (ii) with respect to the opinion delivered by XxXxxxxxx Will & Xxxxx LLP, the State
of New York, the United States Federal Laws and the corporation law of the State of Delaware, to
the extent deemed proper and stated in each such opinion, upon the opinion of other counsel of good
standing believed by each such counsel to be reliable and acceptable to you and your counsel, and
(B) as to matters of fact on certificates of responsible officers of the Issuer, HSBC Entities and
public officials. References to the Preliminary Prospectus or Prospectus in this paragraph (c)
include any supplements thereto.
(d) Xxxxx, Xxxxx, Xxxx & Maw LLP, as counsel for the Underwriters, shall have delivered a
favorable opinion dated the Closing Date with respect to such matters as the Representatives may
reasonably require and the HSBC Entities shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass on such matters.
(e) On the Closing Date the Underwriters shall have received from KPMG, letters, dated as of
the date of the Prospectus in the form heretofore agreed to.
(f) The Representatives shall receive evidence satisfactory to them that, on or before the
Closing Date, UCC-1 financing statements have been filed in the offices of the Secretaries of State
of each applicable jurisdiction (and such other states as may be necessary or desirable pursuant to
applicable state law) reflecting the interest of the Indenture Trustee in the Receivables and the
proceeds thereof.
(g) Counsel to the Indenture Trustee shall have delivered a favorable opinion, dated the
Closing Date, and satisfactory in form and substance to the Representatives and counsel for the
Underwriters, the HSBC Entities and their counsel, to the effect that:
(i) the Indenture Trustee has been duly incorporated and is validly existing
and in good standing as a national banking association, is duly qualified to do
business in all jurisdictions where the nature of its operations as contemplated by
the Indenture requires such qualifications, and has the power and authority
(corporate and other) to issue, and to take all action required of it under, the
Indenture;
(ii) the execution, delivery and performance by the Indenture Trustee of the
Indenture and the issuance of the Notes by the Indenture Trustee have been duly
authorized by all necessary corporate action on the part of the Indenture
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Trustee, and under present laws do not and will not contravene any law or
governmental regulation or order presently binding on the Indenture Trustee or the
charter or the by-laws of the Indenture Trustee or contravene any provision of or
constitute a default under any indenture, contract or other instrument to which the
Indenture Trustee is a party or by which the Indenture Trustee is bound;
(iii) the execution, delivery and performance by the Indenture Trustee of the
Indenture and the issuance of the Notes by the Indenture Trustee do not require the
consent or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any Federal, state or other governmental
agency or authority which has not previously been effected;
(iv) each of the Notes has been duly authenticated and delivered by the
Indenture Trustee and each of the Notes and the Indenture constitute legal, valid
and binding agreements of the Indenture Trustee, enforceable against the Indenture
Trustee in accordance with its terms (subject to applicable bankruptcy, insolvency
and similar laws affecting creditors’ rights generally); and
(v) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America having jurisdiction over the
banking or trust powers of the Indenture Trustee is required in connection with its
execution and delivery of the Indenture or the performance by the Indenture Trustee
of the terms of the Indenture.
(h) Counsel to the Owner Trustee shall have delivered a favorable opinion, dated the Closing
Date, and satisfactory in form and substance to the Representatives and counsel for the
Underwriters, the HSBC Entities and their 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 and has the
power and authority to execute, deliver and perform the Trust Agreement and to
consummate the transactions contemplated thereby;
(ii) 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;
(iii) each of the Indenture, the Trust Agreement and the Transfer and Servicing
Agreement (collectively referred to in this subsection (h) as the “Trust Documents”)
has been duly executed and delivered by the Owner Trustee, as Owner Trustee on
behalf of the Issuer;
(iv) 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
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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);
(v) 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 by-laws 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
such counsel’s knowledge, without independent investigation, of any judgment or
order applicable to the Owner Trustee;
(vi) 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
(vii) 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.
(i) Special Delaware counsel to the Issuer shall have delivered a favorable opinion, dated the
Closing Date, and satisfactory in form and substance to the Representatives and counsel for the
Underwriters, the HSBC Entities and their 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 (i) as the “Delaware Act”);
(ii) the Trust Agreement constitutes a legal, valid and binding obligation of
the Owner Trustee arid the Transferor, enforceable against the Owner Trustee and the
Transferor, in accordance with its terms;
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(iii) under the Delaware 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 Issuer;
(iv) under the Delaware Act and the Trust Agreement, the Issuer has (i) the
trust power and authority to execute, deliver and perform its obligations under the
Indenture and the Transfer and Servicing Agreement (collectively referred to in this
subsection (i) 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;
(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 Delaware 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 Sections 3808(a) and (b) of the Delaware 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;
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(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 Delaware 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
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.
(j) The Class A Notes shall be given the highest investment grade rating by each of Xxxxx’x
Investors Service, Inc. (“Xxxxx’x”), Xxxxx, Inc. (“Fitch”), and Standard & Poor’s Ratings Services
(“S&P”) and none of Xxxxx’x, S&P or Fitch shall have placed the Class A Notes under review with
possible negative implications.
(k) The Class B Notes shall be rated at least “[A]” or its equivalent by each of Moody’s,
Fitch and S&P and none of Moody’s, S&P or Fitch shall have placed the Class B Notes under review
with possible negative implications.
(l) The Class C Notes shall be rated at least “[BBB]” or its equivalent by each of Moody’s,
Fitch and S&P and none of Moody’s, Fitch or S&P shall have placed the Class C Notes under review
with possible negative implications.
(m) Since the date as of which information is given in the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or affecting the general
affairs, management, financial condition, stockholders equity or results of operations of the
Transferor or HSBC Finance otherwise than as set forth or contemplated in the Prospectus, the
effect of which is in the reasonable judgment of the Underwriters, after consultation with the
Transferor and HSBC Finance, so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
(n) All proceedings in connection with the transactions contemplated by this Agreement and all
documents incident hereto shall be reasonably satisfactory in form and
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substance to the Representatives and counsel for the Underwriters, and the Representatives and
counsel for the Underwriters shall have received such information, certificates and documents as
the Representatives or counsel for the Underwriters may reasonably request.
(o) The Representatives shall have received and shall be addressed on, opinions from XxXxxxxxx
Will & Xxxxx LLP, special counsel to the HSBC entities rendered to the rating agencies, with
respect to certain matters, including security interest, true sale, non-consolidation and FDIC
matters, in each case, dated as of the Closing Date.
(p) The Bank shall have delivered a certificate, dated as of the Closing Date, signed by its
President or any Vice President that such person has carefully examined the Bank RPA, the
Preliminary Prospectus, the Prospectus (and any supplements thereto) and the Registration
Statement, stating that:
(i) the representations and warranties of such entity in such agreement are
true and correct in all material respects at and as of the date of such certificate
as if made on and as of such date (except to the extent they expressly relate to an
earlier date);
(ii) such entity has complied, in all material respects, with such agreement
and satisfied, in all material respects, all the conditions on its part to be
performed or satisfied at or prior to the date of such certificate; and
(iii) nothing has come to the attention of such entity that would lead it to
believe that the Registration Statement with respect to matters related to the Bank
contains any untrue statement of a material fact or omits 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.
(q) HRAC shall have delivered a certificate, dated as of the Closing Date, signed by its
President or any Vice President that such person has carefully examined the Bank RPA, the
Transferor RPA, the Preliminary Prospectus, the Prospectus (and any supplements thereto) and the
Registration Statement, stating that:
(i) the representations and warranties of such entity in such agreements are
true and correct in all material respects at and as of the date of such certificate
as if made on and as of such date (except to the extent they expressly relate to an
earlier date);
(ii) such entity has complied, in all material respects, with such agreements
and satisfied, in all material respects, all the conditions on its part to be
performed or satisfied at or prior to the date of such certificate; and
(iii) nothing has come to the attention of such entity that would lead it to
believe that the Registration Statement with respect to matters related to HRAC
contains any untrue statement of a material fact or omits 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.
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If any of the conditions specified in this Section 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Representatives and the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Indenture Trustee and the Transferor in writing
or by telephone or telegraph confirmed in writing.
Section 7. Preliminary Prospectus and Free Writing Prospectuses.
(a) The following terms have the specified meanings for purposes of this Agreement:
(i) “Free Writing Prospectus” means a “free writing prospectus” as
defined in Rule 405 under the Act.
(ii) “Underwriter Free Writing Prospectus” means a Free Writing
Prospectus prepared by or on behalf of an Underwriter.
(b) Neither the Transferor nor any Underwriter will disseminate to any potential investor any
Free Writing Prospectus or any other information relating to the Notes that constitutes a “written
communication” within the meaning of Rule 405 under the Act, other than as permitted by Section
4(b) above.
(c) Neither the Transferor nor any Underwriter shall disseminate or file with the Commission
any information relating to the Notes in reliance on Rule 167 or 426 under the Act.
(d) Each Free Writing Prospectus shall bear the following legend, or a substantially similar
legend that complies with Rule 433 under the Act:
The Issuer has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
Issuer has filed with the SEC for more complete information about
the Issuer, the issuing trust, and this offering. You may get these
documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the Issuer, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling, in the case of
___, toll-free 1-800-___-___.
(e) In the event that the HSBC Finance or the Transferor become aware that, as of the Time of
Sale, any Preliminary Prospectus contains or contained any untrue statement of material fact or
omits or omitted to state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not misleading (a
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“Defective Prospectus”), such entity shall promptly notify the Underwriters of such untrue
statement or omission no later than one business day after discovery and the Transferor shall, if
requested by the Underwriters, prepare and deliver to the Underwriters a Corrected Prospectus.
(f) Each Underwriter represents, warrants, covenants and agrees with the Transferor that:
(i) In disseminating information to prospective investors, it has complied and
will continue to comply fully with the Rules and Regulations, including but not
limited to Rules 164 and 433 under the Act and the requirements thereunder for
filing and retention of Free Writing Prospectuses, including retaining any Free
Writing Prospectuses they have used but which are not required to be filed for the
required period.
(ii) Prior to entering into any Contract of Sale, the applicable Underwriter
shall convey the Preliminary Prospectus to the prospective investor. The
Underwriter shall maintain sufficient records to document its conveyance of the
Preliminary Prospectus to the potential investor prior to the formation of the
related Contract of Sale and shall maintain such-records as required by the Rules
and Regulations.
(iii) If a Defective Prospectus has been corrected with a Corrected Prospectus
delivered to such Underwriter, it shall (A) deliver the Corrected Prospectus to each
investor with whom it entered into a Contract of Sale and that received the
Defective Prospectus from it prior to entering into a new Contract of Sale with such
investor, (B) notify such investor in a prominent fashion that the prior Contract of
Sale with the investor, if any, has been terminated and of the investor’s rights as
a result of such agreement and (C) provide such investor with an opportunity to
affirmatively agree to purchase the Notes on the terms described in the Corrected
Prospectus.
(g) Each Underwriter shall deliver to the Transferor, not less than one business day prior to
the required date of filing thereof, all information included in an Underwriter Free Writing
Prospectus required to be filed with the Commission under the Act.
Section 8. Indemnification and Contribution.
(a) As an inducement to the Underwriters to participate in the public offering of the Notes,
the Transferor and HSBC Finance, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, or in the Prospectus, or the Preliminary Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are
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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 light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the HSBC Entities will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the HSBC Entities by or on behalf of any
Underwriter through the Representatives specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to any such untrue statement or alleged untrue
statement or omission or alleged omission in the Prospectus or the Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person was not sent a copy of the Prospectus or the Preliminary Prospectus
(or the Prospectus or the Preliminary Prospectus as supplemented) at or prior to the confirmation
of the sale of such Notes to such person in any case where such delivery is required by the Act.
This indemnity agreement will be in addition to any liability which the HSBC Entities may otherwise
have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless each of
the HSBC Entities, each of their directors, each of the officers who signs the Registration
Statement, and each person who controls any HSBC Entity within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, to the same extent as the foregoing indemnities from the HSBC
Entities to each Underwriter, but only with reference to the Underwriter Information. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraphs (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest,
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(ii) the actual or potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is unavailable or insufficient to
hold harmless an indemnified party under subsections (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 subsections (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the HSBC Entities 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 HSBC Entities 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 HSBC Entities
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) received by the HSBC Entities
bears to the total underwriting discounts and commissions received by the Underwriters. 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 HSBC Entities or the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Transferor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
subsection (d). 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 legal or 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), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
Section 9. Default by an Underwriter.
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If any one or more Underwriters shall fail to purchase and pay for any of the Notes agreed to
be purchased by such Underwriter or Underwriters hereunder on the Closing Date and such failure to
purchase shall constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Notes set forth opposite their names in Schedule I with
respect to the Closing Date hereto bears to the aggregate amount of Notes set forth opposite the
names of all the remaining Underwriters) the Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Notes set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be under any obligation
to purchase any, of the Notes, and if such nondefaulting Underwriters do not purchase all the
Notes, the obligations will terminate without liability of any nondefaulting Underwriter, the
Issuer, or any HSBC Entity. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding seven days, as the
Underwriters shall determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the
Transferor, HSBC Finance, and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
Section 10. Termination.
This Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Transferor if after the Execution Time and prior to
delivery of and payment for the Notes on the Closing Date, (i) if there has been since the
respective dates as of which information is given in the Preliminary Prospectus or the Prospectus,
any change, or any development involving a prospective change, in or affecting the condition,
financial or otherwise, earnings, affairs or business of HSBC Finance or the Transferor, whether or
not arising in the ordinary course of business, which, in the reasonable judgment of the
Underwriters after consultation with HSBC Finance and the Transferor, materially impairs the market
for, or the investment quality of, any Class of the Notes, (ii) if there has been an outbreak or
material escalation of hostilities involving the United States of America (including, without
limitation, an act of domestic terrorism), or the declaration by the United States of America of a
national emergency or war, if the effect of any such event in the Underwriters’ reasonable judgment
makes it impracticable or inadvisable to proceed with the public offering or delivery of any Class
of the Notes as contemplated by this Agreement, (iii) if trading in securities generally on the New
York Stock Exchange has been suspended or materially limited (other than normal trading
restrictions resulting from the total number of trades on the New York Stock Exchange), or minimum
prices have been established by the exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either federal or New York
State authorities or (iv) if there has been any material disruption of securities settlement,
payment or clearance services in the United States, or any other calamity or crisis having an
effect on financial markets in the United States if the effect of any such event in the
Underwriters’ reasonable judgment makes it impracticable or inadvisable to proceed with the public
offering or delivery of any class of the Notes as contemplated by this Agreement.
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Section 11. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and other statements or
certificates of the HSBC Entities or the officers of each of them and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters, the HSBC Entities or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
Section 12. Notices.
All communications hereunder shall be in writing and effective only on receipt, and shall be
deemed to have been duly given if mailed or transmitted any standard form of telecommunication.
Notices to the Underwriters shall be directed to HSBC Securities (USA) Inc., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: [.]; (Fax: (___)___-___). Notice to any HSBC Entity, shall be
directed to them at 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, xxxxxxxxx of General
Counsel (Fax: (___)___-___); provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
Section 13. Relationship of the Parties.
The Transferor and HSBC Finance acknowledge and agree that: (a) the purchase and sale of the
Notes pursuant to this Agreement, including the determination of the public offering price of the
Notes and any related discounts and commissions, is an arm’s-length commercial transaction between
the Transferor and HSBC Finance, on the one hand, and the Underwriters, on the other hand, and the
Transferor and HSBC Finance are capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (b) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor or
fiduciary of the Transferor or HSBC Finance, or their respective affiliates, stockholders,
creditors or employees; (c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Transferor or HSBC Finance with respect to any of the transactions
contemplated hereby (irrespective of whether such Underwriter has advised or is currently advising
the Transferor or HSBC Finance on other matters) and no Underwriter has any obligation to the
Transferor or HSBC Finance with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (d) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Transferor and HSBC Finance and that the Underwriters have no obligation to disclose any of such
interests by virtue of any advisory or fiduciary relationship; and (e) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Transferor and HSBC Finance have consulted their own legal, accounting, regulatory
and tax advisors to the extent deemed appropriate.
Section 14. APPLICABLE LAW.
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THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
Section 15. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
Section 16. Counterparts.
This Agreement may be executed by one or more parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.
Section 17. Miscellaneous.
This agreement supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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If you are in agreement with the foregoing, please sign two counterparts hereof and return one
to each of the Transferor and HSBC Finance whereupon this letter and your acceptance shall become a
binding agreement among the HSBC Entities and the several Underwriters.
| Very truly yours, | ||||||
| HSBC RECEIVABLES FUNDING INC. I | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| HSBC FINANCE CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| The foregoing Agreement is hereby confirmed and accepted as of the date hereof. |
||||||
| HSBC SECURITIES (USA) INC., as Representative of the Underwriters |
||||||
By |
||||||
Name: |
||||||
Title: |
||||||
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Schedule I
CLASS A NOTES
|
Principal Xxxxxx | |
CLASS B NOTES
|
Principal Xxxxxx | |
CLASS C NOTES
|
Principal Xxxxxx |
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