Prime Credit Card Master Trust
$400,000,000 6.7% Class A Asset Backed Certificates,
Series 2000-1
PRIME RECEIVABLES CORPORATION
(TRANSFEROR)
FDS BANK
(SERVICER)
UNDERWRITING AGREEMENT
Credit Suisse First Boston Corporation
As Representative (the "Representative")
of the Several Underwriters,
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. Prime Receivables
Corporation, a Delaware corporation (the "Transferor"),
proposes to cause Prime Credit Card Master Trust (the
"Trust") to issue $400,000,000 in aggregate principal
amount of 6.7% Class A Asset Backed Certificates, Series
2000-1 (the "Class A Certificates"). The Class A
Certificates are to be issued pursuant to the Pooling and
Servicing Agreement, dated as of December 15, 1992, among
the Transferor, Federated Department Stores, Inc.
("Federated") and The Chase Manhattan Bank, as Trustee
(the "Trustee"), as supplemented or amended in accordance
with its terms (the "Pooling and Servicing Agreement"),
and the Series 2000-1 Supplement (the "Series
Supplement") to be entered into among the Transferor, FDS
Bank ("FDS"), as Servicer, and the Trustee. In addition,
concurrently with the issuance of the Class A
Certificates, the Transferor shall cause the Trust to
issue pursuant to the Pooling and Servicing Agreement and
the Series Supplement, $38,100,000 in aggregate principal
amount of Class B Asset Backed Certificates, Series 2000-
1, (the "Class B Certificates") and $38,100,000 in
aggregate principal amount of Class C Asset Backed
Certificates, Series 2000-1 (the "Class C Certificates,"
and, together with the Class A Certificates and the Class
B Certificates, the "Investor Certificates"). Each
Certificate represents a specified percentage of an
undivided interest in the Trust. The assets of the Trust
will include receivables (the "Receivables") generated
from time to time in the credit card accounts (the
"Accounts") originated by FDS and certain other
subsidiaries identified on Schedule A (each, an
"Originator") of Federated and sold to the Transferor,
all monies due or to become due in respect of the
Receivables, including Receivables resulting from certain
fees billed to obligors on the Accounts, any Receivables
in the Accounts added to the Trust from time to time,
moneys on deposit in certain accounts of the Trust, all
of the Transferor's right, title and interest in the
Receivables Purchase Agreement, and payments made in
respect of Enhancements issued with respect to any other
Series of certificates issued by the Trust pursuant to
the Pooling and Servicing Agreement, other than the
Investor Certificates (which Enhancements will not be
available for the benefit of the Class A Certificates).
To the extent not defined herein, capitalized terms used
herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Transferor hereby agrees with Credit Suisse
First Boston Corporation (in such capacity the
"Representative") as representative of the several
underwriters named in Schedule A (the "Underwriters") as
follows:
2. Representations and Warranties of the
Transferor. The Transferor represents and warrants to,
and agrees with, the Underwriters that:
(a) A registration statement on Form S-3
(No. 333-45760) relating to the Class A Certificates (the
"Registration Statement"), including a form of prospectus
and prospectus supplement, has been filed with the
Securities and Exchange Commission (the "Commission") and
either (i) has been declared effective by the Commission
and is not proposed to be amended or (ii) is proposed to
be amended by amendment or post-effective amendment. For
purposes of this Agreement, "Effective Date" means the
date as of which such Registration Statement or the most
recent post-effective amendment thereto, if any, was
declared effective by the Commission. Any prospectus
supplement relating to the Class A Certificates
("Prospectus Supplement"), as first filed with the
Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933, as
amended (the "Act") is, together with the base prospectus
(such base, in the form it appears in the Registration
Statement or in the form filed with the Commission
pursuant to Rule 424(b) together with the Prospectus
Supplement) or (if no such filing is required) as
included in a Registration Statement, including all
material incorporated by reference in such prospectus and
prospectus supplement, is hereinafter referred to as the
"Prospectus." No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(b) (i) On the Effective Date of the
Registration Statement, the Registration Statement
conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission
promulgated thereunder (the "Rules and Regulations") and
did not include any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading and (ii) the Prospectus, as amended or supple
mented as of its date and the Registration Statement as
of such date, each conformed, or will conform, in all
material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading. The
representations contained in the preceding sentence do
not apply to statements in or omissions from the
Registration Statement or the Prospectus, as the case may
be based upon written information furnished to the
Transferor by the Underwriters specifically for use
therein, it being understood and agreed that the only
such information is that described as such in Section
7(c) hereof.
(c) As of the Closing Date (as
hereinafter defined), (i) the representations and
warranties of the Transferor and FDS, as Servicer, in the
Pooling and Servicing Agreement, will be true and correct
in all material respects and (ii) the Class A
Certificates, the Pooling and Servicing Agreement, the
Series Supplement, the Receivables Purchase Agreement,
and this Underwriting Agreement will conform in all
material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus.
3. Purchase, Sale, Payment and Delivery of
Certificates. On the basis of the representations,
warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the
Transferor agrees to sell to the underwriters identified
on Schedule A hereto (the "Class A Underwriters"), and
the Class A Underwriters agree to purchase from the
Transferor at a purchase price of 99.621875% of the
principal amount thereof, $400,000,000 aggregate
principal amount of the Class A Certificates in the
principal amounts shown on Schedule A hereto.
The Transferor will deliver against payment of
the purchase price the Class A Certificates in the form
of one or more permanent global securities in definitive
form (the "Global Certificates") deposited with the
Trustee as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through
DTC, except in the limited circumstances described in the
Prospectus. Payment for the Class A Certificates shall
be made by the Underwriter or the Representative on
behalf of the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account
in New York previously designated to Credit Suisse First
Boston Corporation by the Transferor at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times
Square, New York, New York at 10:00 a.m. (New York time),
on December 7, 2000 or at such other time not later than
seven full business days thereafter as the Underwriters
and the Transferor determine, such time being herein
referred to as the "Closing Date," against delivery to
the Trustee as custodian for DTC of the Global
Certificates representing all of the Class A
Certificates. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Closing Date (if later than the
otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of the
Class A Certificates. The Global Certificates will be
made available for checking at the above office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP no later than
12:00 noon (New York time) on the day prior to the
Closing Date.
4. Offering by Underwriters. It is understood
that the several Underwriters propose to offer the Class
A Certificates for sale to the public (which may include
selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Transferor. The
Transferor agrees with the Underwriters that:
(a) The Transferor will file the
Prospectus required to be filed with the Commission
pursuant to Rule 424(b)(l) (or, if applicable, and if
consented to by the Underwriters, pursuant to Rule
424(b)(4)) not later than the Commission's close of
business on the second business day following the earlier
of (A) the date of determination of the offering price or
(B) the date the Prospectus is first used after
effectiveness in connection with a public offering or
sale. The Transferor will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor will advise the
Representative promptly of any proposal to amend or
supplement the Registration Statement as filed or the
related Prospectus, and will not effect such amendment or
supplementation without the consent of the Representative
(which consent shall not be unreasonably withheld); and
the Transferor will also advise the Representative
promptly of the effectiveness of any amendment or
supplementation of the Registration Statement or the
Prospectus, of any request by the Commission for any
amendment or supplementation of the Registration
Statement or the Prospectus or for any additional
information, of the receipt by the Transferor of any
notification with respect to the suspension of
qualification of any of the Class A Certificates for sale
in any jurisdiction or the initiation or threatening of
any proceeding for such purposes and of the institution
by the Commission of any stop order proceeding in respect
of the Registration Statement, and will use its best
efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus
relating to the Certificates is required to be delivered
under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state
any material fact necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at
any time to amend the Prospectus to comply with the Act,
the Transferor promptly will prepare and file with the
Commission (subject to the prior review of the
Representative pursuant to paragraph (b) of this Section
5) an amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance. Neither the consent of the Represen
tative to, nor the Representative's delivery of, any such
amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) As soon as practicable, but not later
than May 3, 2002, the Transferor will cause the Trust to
make generally available to the Certificateholders an
earnings statement or statements of the Trust covering a
period of at least 12 months beginning after the date of
this Agreement which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Transferor will furnish to the
Underwriters copies of the Registration Statement (one of
which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each
case as soon as available and in such quantities as the
Underwriters reasonably request. The Prospectus shall be
so furnished on or prior to 3:00 p.m., New York time, on
the business day following the later of the execution and
delivery of this Agreement or the Effective Date of the
Registration Statement. All other such documents shall
be so furnished as soon as available. The Transferor
will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Transferor will take such action
(other than qualifying to do business as a foreign
corporation or filing a general consent to service of
process in any jurisdiction or taking any action that
would subject it to general taxation in any jurisdiction)
as the Representative may reasonably request to qualify
the Class A Certificates for sale under the securities
laws of such jurisdictions as the Representative may
request and will comply with such laws so as to permit
the continuance of sales in such jurisdictions for as
long as may be necessary to complete the distribution of
the Class A Certificates.
(g) For a period from the date of this
Agreement until the retirement of the Class A
Certificates, or such earlier time at which the
Representative shall have notified the Transferor that
the Representative has ceased to make a secondary market
in the Class A Certificates (which notice, if any, shall
be given with reasonable promptness), FDS, as Servicer,
will furnish to the Representative copies of each
officer's certificate and the annual statements of
compliance delivered to the Trustee pursuant to Section
3.06 of the Pooling and Servicing Agreement and the
annual independent certified public accountant's
servicing reports furnished to the Trustee pursuant to
Section 3.06 of the Pooling and Servicing Agreement, by
first-class mail as soon as practicable after such
officer's certificates and independent public
accountant's reports are furnished to the Trustee.
(h) So long as any of the Class A
Certificates are outstanding, the Transferor will furnish
to the Representative, by first-class mail as soon as
practicable, all documents (i) distributed by the
Transferor to Certificateholders, or (ii) filed by or on
behalf of the Trust or the Transferor as the originator
of the Trust with the Commission pursuant to the Exchange
Act, or any order of the Commission or "no-action" letter
obtained from the staff of the Commission by or on behalf
of the Trust or the Transferor as originator of the
Trust, and (iii) from time to time, such other
information (other than any material nonpublic
information) concerning the Trust as the Underwriters may
reasonably request.
(i) Whether or not the transactions
contemplated by this Agreement are consummated or this
Agreement is terminated for any reason, except a default
by the Underwriters hereunder, the Transferor will pay
all expenses incident to the performance of its
obligations under this Agreement and will reimburse the
Underwriters for (i) any reasonable expenses (including
the reasonable and documented fees and disbursements of
their counsel) incurred by them in connection with
qualification of the Class A Certificates for sale and
determination of the eligibility of the Class A
Certificates for investment under the laws of such
jurisdictions as the Representative designates and the
printing of memoranda relating thereto, (ii) any fees
charged by investment rating agencies for the rating of
the Investor Certificates, (iii) any filing fee of the
National Association of Securities Dealers, Inc. relating
to the Investor Certificates, and (iv) expenses incurred
in printing and distributing preliminary prospectuses and
the Prospectus (including any amendments and supplements
thereto).
(j) To the extent, if any, that the
ratings provided with respect to the Class A Certificates
by Xxxxx'x Investors Service, Inc. and Standard & Poor's
Ratings Services are conditional upon the furnishing of
documents or the taking of any other actions by the
Transferor, the Transferor and FDS shall furnish such
documents and take any such other actions.
(k) The Transferor or Federated shall
not, until after the later of (i) the Closing Date and
(ii) the termination of the underwriting syndicate,
offer, sell or contract to sell, directly or indirectly,
or file with the Commission a registration statement
under the Act relating to securities substantially
similar to the Certificates; provided, however, that such
restriction shall not apply to any private placement by
the Transferor of the Class C Certificates or any
interest therein.
6. Conditions of the Obligations of the
Underwriters. The obligation of the Underwriters to
purchase and pay for the Class A Certificates will be
subject to the accuracy in all material respects of the
representations and warranties on the part of the
Transferor herein, to the accuracy of the officer's
certificates to be delivered pursuant to Section 6(j), to
the performance by the Transferor and FDS of their
obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have
received a letter, dated the date of the Prospectus and
addressed to the Underwriters, of independent certified
public accountants for FDS and the Transferor, in form
and substance satisfactory to the Representative and
their counsel, (i) confirming that they are independent
certified public accountants within the meaning of the
Act and the applicable Rules and Regulations thereunder
and (ii) stating in effect that they have performed
certain specified procedures as a result of which they
have determined that certain information of an
accounting, financial or statistical nature (which is
limited to accounting, financial or statistical
information derived from the general accounting records
of the Trust, FDS and the Transferor set forth in the
Registration Statements and the Prospectus (and any
supplements thereto)), under the captions "Federated
Department Stores, Inc.," "Trust Credit Card Portfolio,"
"Maturity Considerations," and "Receivable Yield
Considerations" in the Prospectus, agrees with the
accounting records and/or computer reports or microfiche
lists or analyses prepared by FDS or an affiliate thereof
made available to them by the Transferor or FDS,
excluding any questions of legal interpretation. On the
Closing Date, the Representative shall have received such
letter (which may be in a bring-down format) dated the
Closing Date.
(b) The Prospectus and any supplements
thereto shall have been filed (if required) with the
Commission in accordance with the Rules and Regulations
and Section 5(a) hereof, and prior to the Closing Date,
no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted
or, to the knowledge of the Transferor, shall be
contemplated by the Commission or by any authority
administering any state securities or blue sky laws.
(c) Subsequent to the execution and
delivery of this Agreement, there shall not have occurred
(i) any change, or any development involving a
prospective change, in or affecting particularly the
business or properties of the Transferor, FDS, Federated
or any other affiliate of Federated which, in the
judgment of the Underwriters, materially impairs the
investment quality of the Class A Certificates; (ii) any
downgrading in the rating of any debt securities of the
Transferor, FDS, Federated or any other affiliate of
Federated by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that
any such organization has under surveillance or review
its rating of any such debt securities (other than an
announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading,
of such rating); provided, however that the Underwriters
acknowledge that the ratings of the debt securities of
Federated are under review for potential downgrade by
Moody's and confirm that so long as such rating is not
reduced below investment grade that such event shall not
be deemed a downgrade for purposes of this clause (ii);
(iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities
of the Transferor, FDS, Federated or any other affiliate
of Federated on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal
or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or
any other substantial national or international calamity
or emergency if, in the judgment of a majority in
interest of the Underwriters, including the
Representative, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of
the sale of and payment for the Class A Certificates.
(d) The Representative shall have
received an opinion, dated the Closing Date, addressed to
the Underwriters, of Xxxxx, Day, Xxxxxx & Xxxxx, to the
effect that:
(i) Each of the Transferor and
Federated has been duly incorporated and is
validly existing and in good standing under the
laws of the State of Delaware;
(ii) FDS has been duly
organized as a federally chartered savings bank
and is validly existing under the laws of the
United States of America;
(iii) Each of the Transferor,
Federated, and FDS, as applicable, has the
corporate power and authority to execute and
deliver this Agreement, the Series Supplement,
and the Certificates, and to consummate the
transactions contemplated herein and therein;
(iv) Each of the Transferor and
Federated had the corporate power and authority
to execute and deliver the Pooling and
Servicing Agreement, and FDS had the corporate
power and authority to execute and deliver the
Assumption Agreement, dated as of September 15,
1993 (the "Assumption Agreement"), relating to
the assumption by FDS of Federated's
obligations as Servicer thereunder;
(v) Each of the Transferor and
each Originator other than FDS, Macy's East,
Inc. and Broadway Stores, Inc. had the
corporate power and authority to execute and
deliver the Receivables Purchase Agreement,
each of FDS, Macy's East, Inc. and Broadway
Stores, Inc. had the corporate power and
authority to execute and deliver the Supplement
to Receivables Purchase Agreement to which it
is a party (each such Supplement, a
"Supplement"), relating to it becoming an
"Additional Originator" thereunder, and each of
the Originators has the corporate power and
authority to consummate the transactions
contemplated in the Receivables Purchase
Agreement;
(vi) Each of the Pooling and
Servicing Agreement, the Assumption Agreement,
and the Series Supplement has been duly
authorized, executed and delivered by the
Transferor, Federated, and FDS, as applicable,
and, assuming the due authorization, execution
and delivery thereof by the Trustee, each of
the Pooling and Servicing Agreement, the
Assumption Agreement, and the Series Supplement
constitutes a legal, valid and binding
obligation of each of the Transferor,
Federated, and FDS, as applicable, enforceable
against each of them, as applicable, in
accordance with its terms except as the
enforceability thereof may be limited by
bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors'
rights generally and except as the
enforceability of remedies may be limited by
general principles of equity, including the
possible unavailability of specific performance
or injunctive relief, regardless of whether
such enforceability is considered in a
proceeding in equity or at law, and except as
the enforceability of the indemnities in Sec
tion 3.04 of the Pooling and Servicing
Agreement may be subject to limitations based
on public policy considerations;
(vii) Each of the Receivables
Purchase Agreement and each of the Supplements
has been duly authorized, executed and
delivered by the Transferor and each
Originator, as applicable, and constitutes the
legal, valid and binding obligation of the
Transferor and each Originator, as applicable,
enforceable against each of them, as
applicable, in accordance with its terms except
as the enforceability thereof may be limited by
bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors'
rights generally and except as the
enforceability of remedies may be limited by
general principles of equity, including the
possible unavailability of specific performance
or injunctive relief, regardless of whether
such enforceability is considered in a
proceeding in equity or at law and except as
the enforceability of the indemnities in
Sections 7.01 and 7.02 of the Receivables
Purchase Agreement may be subject to limita
tions based on public policy considerations;
(viii) The certificates
representing the Class A Certificates have been
duly authorized and executed by the Transferor
and, assuming due authentication thereof by the
Trustee in accordance with the Pooling and
Servicing Agreement, were validly issued to or
upon the order of the Transferor by the Trust,
are entitled to the benefits of the Pooling and
Servicing Agreement and the Series Supplement
and are enforceable in accordance with their
terms except as the enforceability thereof may
be limited by bankruptcy, reorganization,
insolvency, moratorium or other laws affecting
creditors' rights generally and except as the
enforceability of remedies may be limited by
general principles of equity, including the
possible unavailability of specific performance
or injunctive relief, regardless of whether
such enforceability is considered in a
proceeding in equity or at law. Upon delivery
of the Class A Certificates to the Underwriters
by the Transferor against payment therefor in
accordance with this Agreement, the
Underwriters will acquire the Class A
Certificates free and clear of any "adverse
claim" (as defined in Section 8-302(c) of the
Uniform Commercial Code as in effect in the
State of New York);
(ix) This Agreement has been
duly authorized, executed and delivered by the
Transferor and Federated;
(x) The Registration Statement
was filed and declared effective under the Act
and, to the extent required thereunder, the
Prospectus was filed with the Commission
pursuant to Rule 424(b); to such counsel's
knowledge, no stop order suspending the
effectiveness of a Registration Statement has
been issued and no proceedings for that purpose
have been instituted or threatened under the
Act; the Registration Statement, the Prospectus
and each amendment thereof or supplement
thereto (other than the financial and
statistical information contained therein, as
to which such counsel need not express any
opinion) on their respective effective dates or
dates of issuance comply as to form in all
material respects to the applicable
requirements of the Act and the Rules and
Regulations;
(xi) No consent, approval,
authorization or order of, or filing with, any
court or governmental agency or body having
jurisdiction over the Transferor, Federated,
FDS, or any Originator is required for the
consummation on the Closing Date of the
transactions contemplated by this Agreement,
the Pooling and Servicing Agreement, the Series
Supplement, or the Receivables Purchase
Agreement, as applicable, except for (i) such
consents, approvals, authorizations, orders or
filings as have been obtained under the Act;
(ii) such consents, approvals, authorizations,
orders or filings as may be required under blue
sky laws of any jurisdiction; and (iii) such
other consents, approvals, authorizations,
orders or filings that have been previously
obtained or made;
(xii) The Pooling and Servicing
Agreement and the Series Supplement are not
required to be qualified under the Trust
Indenture Act of 1939; and
(xiii) The Trust is not
required to register as an investment company
under the Investment Company Act of 1940, as
amended.
The Representative shall also have received a
written statement, dated the Closing Date, addressed to
the Underwriters, of Xxxxx, Day, Xxxxxx & Xxxxx to the
effect that such counsel has participated in the
preparation of the Registration Statement, and the
Prospectus and, based on such participation, no facts
have come to the attention of such counsel which cause it
to believe that the Registration Statement (other than
the statistical and related financial information
contained therein, as to which such counsel need not
express any belief), as of the Closing Date, contained
any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, or that the Prospectus (other than the
statistical and related financial information contained
therein, as to which such counsel need not express any
belief) as of its date contained any untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not misleading.
The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel has not
independently verified and does not assume any
responsibility for the accuracy, completeness or fairness
of the statements contained in a Registration Statement
or the Prospectus.
(e) The Representative shall have
received an opinion of Xxxxx, Day, Xxxxxx & Xxxxx,
special counsel for the Transferor, addressed to the
Underwriters, substantially to the effect that (i) the
Pooling and Servicing Agreement creates a valid security
interest (as defined in the UCC) (the "Transferor
Security Interest") in favor of the Trustee in all right,
title and interest of the Transferor in and to all
Receivables of the Transferor, (ii) the Transferor's UCC-
1 financing statements in connection with the execution
and delivery of the Pooling and Servicing Agreement were
in appropriate form and were duly filed in the filing
offices specified in such opinion pursuant to the UCC,
which filings resulted in the perfection of the
Transferor Security Interest, and (iii) based solely upon
such counsel's examination of the search reports
specified in such opinion and the Transferor's UCC-1
financing statements, the Transferor Security Interest
continues to have priority over any other lien or
security interest in the Transferor's right, title and
interest in and to the Receivables, the perfection of
which requires the filing of a financing statement under
the UCC.
(f) Each Underwriter shall be an
addressee of, or the Underwriters shall have received a
letter, dated the Closing Date, from Xxxxx, Day, Xxxxxx &
Xxxxx specifically authorizing the Underwriters to rely
on, each opinion, dated the Closing Date, of Xxxxx, Day,
Xxxxxx & Xxxxx addressed to either or both of the Rating
Agencies, which opinion or opinions will be to the
effect, in addition to any other matters that may be
addressed therein, that the transfers of the Receivables
by FDS and the other Originators to the Transferor would
be treated as a true sale of assets and not as pledges
thereof as security for borrowings and that the assets of
the Transferor would not be substantively consolidated
with those of FDS or the other Originators.
(g) The Representative shall have
received an opinion dated the Closing Date addressed to
the Underwriters, of Xxxxx, Day, Xxxxxx & Xxxxx, and
satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, to the effect that the
statements set forth in the Prospectus under the headings
"Structural Summary -- Income Tax Status of Class A and
Class B Certificates and the Prime Credit Card Master
Trust" and "Tax Matters" to the extent that they
constitute descriptions of matters of law or legal
conclusions with respect thereto, have been reviewed by
such counsel and are correct in all material respects and
to the effect that the Class A Certificates and the Class
B Certificates will be treated as indebtedness of the
Transferor for Federal income tax purposes and for Ohio
and New York income or franchise tax purposes.
(h) The Representative shall have
received an opinion, dated the Closing Date, addressed to
the Underwriters, of Xxxxxx X. Xxxxxxxxx, the General
Counsel of Federated, to the effect that:
(i) Each of the Transferor,
Federated, and FDS has the corporate power and
authority to own its properties and to conduct
its business as now conducted, except where the
failure to have such corporate power and
authority would not have a material adverse
effect upon the Certificateholders; and each of
the Transferor, Federated, and FDS is duly
qualified to do business as a foreign
corporation or licensed to transact business as
a foreign corporation in all states in which it
conducts its credit card business, except where
the failure to so qualify or obtain a license
would not have a material adverse effect upon
the Certificateholders;
(ii) The Transferor and each
Originator has the corporate power and
authority to acquire and own the Receivables;
(iii) Each Originator has the
corporate power and authority to create and own
the Accounts;
(iv) Neither the execution and
delivery by the Transferor, Federated, or FDS
of this Agreement and the Series Supplement, as
applicable, nor the issuance and sale of the
Certificates and the consummation on the
Closing Date of the other transactions
contemplated in this Agreement, the Pooling and
Servicing Agreement or the Series Supplement
will conflict with or result in a default under
or in the violation of (a) the Transferor's
Restated Certificate of Incorporation or By-
Laws, as applicable, (b) any statute, rule,
regulation or order known to such counsel of
any court or governmental authority having
jurisdiction over the Transferor, Federated, or
FDS, or (c) any material agreement or other
instrument, known to such counsel, by which the
Transferor, Federated, or FDS is bound; and
(v) To such counsel's
knowledge, except as disclosed in the
Prospectus, there are no actions, proceedings
or investigations pending before any court,
administrative agency, or other tribunal (a)
asserting the invalidity of this Agreement, the
Pooling and Servicing Agreement, the Series
Supplement, the Receivables Purchase Agreement,
or the Class A Certificates, (b) regarding or
relating to a party seeking to prevent the
issuance of the Certificates or the
consummation of any of the transactions
contemplated by this Agreement, the Pooling and
Servicing Agreement, the Series Supplement, or
the Receivables Purchase Agreement, (c) which
could be reasonably expected materially and
adversely to affect the performance by the
Transferor, Federated, FDS, or any Originator,
as applicable, of their respective obligations
under, or the validity or enforceability of
this Agreement, the Pooling and Servicing Agree
ment, the Series Supplement, the Receivables
Purchase Agreement, or the Class A
Certificates, or (d) regarding or relating to a
party seeking adversely to affect the federal
income tax attributes of the Class A
Certificates as described in each Prospectus
under the headings "Structural Summary --
Income Tax Status of Class A and Class B
Certificates and the Prime Credit Card Master
Trust" and "Tax Matters."
(i) The Representative shall have
received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Underwriters,
with respect to the organization of the Transferor, the
validity of the Class A Certificates, the Registration
Statement, the Prospectus and other related matters as
the Underwriters may require, and the Transferor shall
have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to
pass upon such matters. In rendering the opinion with
respect to the organization of the Transferor, Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP may rely on the opinion
of Xxxxx, Day, Xxxxxx & Xxxxx referred to above.
(j) The Representative shall have
received a certificate, dated the Closing Date, of two
Vice Presidents or more senior officers of the Transferor
in which such officers, to their knowledge after
reasonable investigation, shall state that (i) the
representations and warranties of the Transferor in this
Agreement are true and correct in all material respects
on and as of the Closing Date, (ii) the Transferor has
complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date,
(iii) the representations and warranties of the
Transferor and FDS, as Servicer, in the Pooling and
Servicing Agreement are true and correct in all material
respects as of the dates specified in the Pooling and
Servicing Agreement, (iv) no stop order suspending the
effectiveness of a Registration Statement has been issued
and no proceedings for that purpose have been instituted
or are threatened by the Commission, (v) nothing has come
to such officers' attention that would lead such officers
to believe that a Registration Statement or the
Prospectus, and any amendment or supplement thereto, as
of their dates and as of the Closing Date, contained an
untrue statement of a 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 (vi) subsequent to
the date of the Prospectus, there has been no material
adverse change in the financial position or results of
operation of the Transferor's or FDS's credit card
business or other business except as set forth in or
contemplated by the Prospectus or as described in such
certificate.
(k) The Representative shall have
received an opinion, dated the Closing Date, addressed to
the Underwriters, of Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxx,
counsel to the Trustee, addressed to the Underwriters,
satisfactory in form and substance to the Underwriters
and counsel for the Underwriters and substantially to the
effect that:
(i) The Trustee is a
corporation duly organized and validly existing
under the laws of the State of New York, and
has the corporate power and authority to act
generally as a trustee and as Trustee under the
Pooling and Servicing Agreement;
(ii) The Pooling and Servicing
Agreement and the Series Supplement have been
duly authorized, executed and delivered by the
Trustee and, assuming the due authorization,
execution and delivery by the Transferor and
FDS are valid and binding agreements of the
Trustee;
(iii) The Class A Certificates
have been duly executed by the Transferor and
authenticated by the Trustee; and
(iv) Neither the execution nor
the delivery by the Trustee of the Pooling and
Servicing Agreement and the Series Supplement
nor the performance of any of the transactions
by the Trustee contemplated thereby requires
the approval, authorization or other action by,
or filing with, any governmental authority or
agency under any existing Federal or State law
governing the banking or trust powers of the
Trustee.
(l) The Representative shall have
received a letter, dated the Closing Date, of KPMG Peat
Marwick LLP which meets the requirements of subsection
(a) of this Section.
(m) The Representative shall have
received evidence satisfactory to the Underwriters that
the Class A Certificates shall be rated "Aaa" by Xxxxx'x
Investors Service, Inc. and "AAA" by Standard & Poor's
Ratings Services.
(n) On the Closing Date, $38,100,000
aggregate principal amount of the Class B Certificates
and $38,100,000 aggregate principal amount of the Class C
Certificates shall have been issued to the Transferor.
(o) The Representative shall have
received evidence satisfactory to the Underwriters that,
on or before the Closing Date, UCC Financing Statements
have been or will be filed in all public offices
necessary to perfect the interest of the Trust in the
Receivables now existing and hereafter created in the
Accounts, all monies due and to become due with respect
thereto, all proceeds thereof, and all of the
Transferor's rights, remedies, powers and privileges with
respect to such Receivables under the Receivables
Purchase Agreement.
The Transferor will furnish the Underwriters
with such conformed copies of such opinions,
certificates, letters and documents as the Underwriters
reasonably request.
7. Indemnification and Contribution. (a) The
Transferor and Federated will jointly and severally
indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim,
damage, liability or action as such expenses are
incurred; provided, however, that the Transferor and
Federated will not be liable in any such case to the
extent that any such loss, claim, damage or liability (or
action in respect thereof) arises out of or is based upon
an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents
in reliance upon and in conformity with written
information furnished to the Transferor or Federated by
the Underwriters specifically for use therein; and
provided, further, that, with respect to any untrue
statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the
indemnity provided for in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or
liability purchased the Class A Certificates concerned,
to the extent that a prospectus relating to the Class A
Certificates was required to be delivered by such
Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of
such Underwriter arises out of or is based upon the fact
that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such
Certificates to such person, a copy of the Prospectus if
the Transferor had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter, severally, and not
jointly, agrees to indemnify and hold harmless the
Transferor and Federated against any losses, claims,
damages or liabilities to which the Transferor and
Federated may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written
information furnished to the Transferor or Federated by
such Underwriter specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred
by the Transferor or Federated in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it
being understood and agreed that the only such
information furnished by any Underwriter consists of [i]
the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and
reallowance figures appearing in the the third paragraph
under the caption "Underwriting" and the information
contained in the sixth paragraph under the caption
"Underwriting."
(c) Promptly after receipt by an
indemnified party under this Section of notice of the
commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may
have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate
therein and to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or
could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such
indemnified party from all liability on all claims that
are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for
in this Section is unavailable or insufficient to hold
harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative
benefits received by the Transferor and Federated on the
one hand and the respective Underwriter on the other from
the offering of the Class A Certificates or (ii) if the
allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the
Transferor and Federated on the one hand and the
respective Underwriter on the other in connection with
the statements or omissions or alleged statements or
omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the
Transferor and Federated on the one hand and each
Underwriter 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
Transferor and Federated bear to the total underwriting
discounts and commissions received by the respective
Underwriter. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the Transferor or
Federated or the respective Underwriter and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d)
shall be deemed to include any other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the
provisions of this subdivision (d), each Underwriter
shall not be required to contribute any amount in excess
of the amount by which the total price at which the Class
A Certificates underwritten by such Underwriter 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.
(e) The obligations of the Transferor or
Federated under this Section shall be joint and several
and shall be in addition to any liability which the
Transferor or Federated may otherwise have and shall
extend, upon the same terms and conditions, to each
person, if any, who controls either Underwriter within
the meaning of the Act; and the obligations of each
Underwriter under this Section shall be in addition to
any liability which such Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to
each officer and director of the Transferor who has
signed a Registration Statement and to each person, if
any, who controls the Transferor within the meaning of
the Act.
8. Default of Underwriters. If any
Underwriter or Underwriters default in their obligations
to purchase Certificates hereunder and the aggregate
principal amount of the Class A Certificates that such
defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal
amount of the Class A Certificates, the Underwriters may
make arrangements satisfactory to the Transferor for the
purchase of such Class A Certificates by other persons,
including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the
nondefaulting Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder,
to purchase the Class A Certificates that such defaulting
Underwriters agreed but failed to purchase. If the
Underwriter or Underwriters so default and the aggregate
principal amount of the Class A Certificates with respect
to such default or defaults exceeds 10% of the total
principal amount of the Class A Certificates and
arrangements satisfactory to the Underwriters and the
Transferor for the purchase of such Certificates by other
persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the
part of any nondefaulting Underwriter, the Transferor or
Federated, except as provided in Section 9. As used in
this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties of the Transferor or
Federated and of each Underwriter set forth in or made
pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as
to the results thereof, made by or on behalf of any
Underwriter, each Originator, the Transferor or Federated
or any of their respective representatives, officers or
directors or any controlling person, and will survive
delivery of and payment for the Class A Certificates. If
this Agreement is terminated or if for any reason other
than default by the Underwriters the purchase of the
Class A Certificates by the Underwriter is not
consummated, the Transferor shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the
Transferor, Federated and the Underwriters pursuant to
Section 7 shall remain in effect. If for any reason the
purchase of the Class A Certificates by the Underwriters
is not consummated other than solely because of the
termination of this Agreement pursuant to Section 8 or
the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(c), the Transferor will
reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel)
reasonably incurred by it in connection with the offering
of the Class A Certificates.
10. Notices. In all dealings hereunder, the
Representative will act on behalf of each of the
Underwriters, and the parties hereto will be entitled to
act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by
the Representative or by Credit Suisse First Boston
Corporation on behalf of the Representative.
All statements, requests, notices and
agreements hereunder will be in writing and will be
delivered or sent by mail, telex or facsimile
transmission, and, if to the Underwriters, will be
sufficient in all respects if addressed to the Representa
tive in care of Credit Suisse First Boston Corporation,
00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Asset
Finance Group, and, if to the Transferor will be
sufficient in all respects if addressed to Prime
Receivables Corporation, 0 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, Attention: General Counsel, with
a copy to Federated Department Stores, Inc., 0 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
General Counsel and if to Federated, will be sufficient
in all respects if addressed to the address provided
above; provided, however, that any notice to any
Underwriter pursuant to Section 7(c) hereof will be
delivered or sent by mail, telex or facsimile
transmission to such Underwriter at the following
address: Credit Suisse First Boston Corporation, 00
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
11. Successors. This Agreement will inure to
the benefit of and be binding upon the parties hereto and
their respective successors and the officers and
directors and controlling persons referred to in Section
7, and no other person will have any right or obligation
hereunder.
12. Representation of Underwriters. The
Representative will act for the several Underwriters in
connection with this financing, and any action under this
Agreement taken by the Representative or by Credit Suisse
First Boston Corporation will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be
executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counter
parts shall together constitute one and the same
Agreement.
14. Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws
of the State of New York.
If you are in agreement with the foregoing,
please sign three counterparts hereof and return one to
the Transferor and one to Federated whereupon this letter
and your acceptance shall become a binding agreement
among the Transferor, Federated and the several
Underwriters.
Very truly yours,
PRIME RECEIVABLES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
FEDERATED DEPARTMENT STORES, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
For itself and for the
several Underwriters
named in Schedule A hereto.
SCHEDULE A
Principal Amount
Class A Underwriters Class A Certificates
Credit Suisse First Boston $ 133,334,000
Banc of America Securities LLC $ 133,333,000
Chase Securities Inc. $ 133,333,000
$ 400,000,000
