EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
AMERICAN EXPRESS CREDIT ACCOUNT MASTER TRUST
$[______] CLASS A
SERIES 200[_]-[_] FLOATING RATE ASSET BACKED CERTIFICATES
$[______] CLASS B
SERIES 200[_]-[_] FLOATING RATE ASSET BACKED CERTIFICATES
[______]
New York, New York
[Name(s) and Address(es) of Representative(s)]
Ladies and Gentlemen:
The undersigned, AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION
II, AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION III LLC and AMERICAN
EXPRESS RECEIVABLES FINANCING CORPORATION IV LLC (each, a "TRANSFEROR";
together, the "TRANSFERORS"), have authorized the issuance and sale to the
Underwriters of $[______] (aggregate principal amount) Class A Series 200[_]-[_]
Floating Rate Asset Backed Certificates (the "SERIES 200[_]-[_] CLASS A
CERTIFICATES"), and $[______] (aggregate principal amount) Class B Series
200[_]-[_] Floating Rate Asset Backed Certificates (the "SERIES 200[_]-[_] CLASS
B CERTIFICATES" and, together with the Series 200[_]-[_] Class A Certificates,
the "CERTIFICATES"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of May 16, 1996, as amended and restated as of
January 1, 2006, as otherwise amended from time to time and as supplemented by
the Series 200[_]-[_] Supplement thereto, to be dated as of [______] (together,
the "POOLING AND SERVICING AGREEMENT"), among the Transferors, American Express
Travel Related Services Company, Inc., as servicer (in such capacity, the
"SERVICER"), and The Bank of New York, as trustee (the "TRUSTEE"). The
Certificates are more fully described in the Registration Statement (defined
below).
Each Certificate will represent an undivided interest in certain
assets of the American Express Credit Account Master Trust (the "TRUST"). The
property of the Trust will include, among other things, receivables (the
"RECEIVABLES") generated from time to time in a portfolio of designated consumer
American Express(R) credit card and Sign and Travel(R)/Extended Payment
Option(SM) revolving credit accounts or features and other credit or charge
accounts (the "ACCOUNTS") owned by American Express Centurion Bank ("CENTURION
BANK"), American Express Bank, FSB ("FSB" and, together with Centurion Bank, the
"BANKS") or any other Account Owner (as such term is defined in the Pooling and
Servicing Agreement).
Each capitalized term used, but not defined herein, shall have the
meaning specified in the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement and each Receivables Purchase Agreement are each sometimes
referred to herein as a "TRANSACTION DOCUMENT."
(Underwriting Agreement-Series 200[_]-[_])
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE TRANSFERORS. Each
Transferor, as to and for itself only, represents and warrants to, and agrees
with, the Underwriters as follows:
(a) The Transferors have filed with the Securities and Exchange
Commission (the "COMMISSION"), on Form S-3, a registration statement
(Registration Nos. 333-130508, 000-000000-00, 000-000000-00 and 333-130508-03)
relating to the Certificates, including a form of prospectus supplement pursuant
to Rule 415 under the Securities Act of 1933, as amended (the "ACT"). The
Transferors may have filed one or more amendments thereto, each of which has
been furnished to the Representatives. The Transferors will also file with the
Commission a prospectus supplement in accordance with Rule 424(b) under the Act.
As filed, the registration statement, as amended, the form of prospectus
supplement, and any prospectuses or prospectus supplements filed pursuant to
Rule 424(b) under the Act ("RULE 424(B)") relating to the Certificates shall,
except to the extent that the Representatives shall agree in writing to a
modification, be in all substantive respects in the form furnished to you prior
to the Execution Time (defined below) or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond those contained in the latest preliminary prospectus
supplement which has previously been furnished to the Underwriters) as the
Transferors shall have advised the Underwriters, prior to the Execution Time,
will be included or made therein.
For purposes of this Agreement, "EFFECTIVE TIME" means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"EFFECTIVE DATE" means the date of the Effective Time. Such registration
statement, as amended at the Effective Time, and including the exhibits thereto,
any material incorporated by reference therein and all information deemed to be
part of such registration statement at the Effective Time pursuant to Rule 430B
under the Act, is hereinafter referred to as the "REGISTRATION STATEMENT," and
the prospectus supplement (the "PROSPECTUS SUPPLEMENT") relating to the
Certificates, as filed with the Commission pursuant to and in accordance with
Rule 424(b) is, together with the prospectus filed as part of 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) being hereinafter referred to as the "BASE PROSPECTUS"), hereinafter
referred to as the "PROSPECTUS." "EXECUTION TIME" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto.
Prior to the time the first contract of sale (or, in the event a
contract reformation is effective to terminate the existing contract of sale and
extinguish any rights thereunder, the time of the first such effective contract
reformation) for the Certificates was entered into, as designated on Schedule A
hereto (the "TIME OF SALE"), the Transferors had prepared a preliminary
Prospectus, dated [______] (subject to completion). As used herein, "PRELIMINARY
PROSPECTUS" means, with respect to any date or time referred to herein, the most
recent preliminary Prospectus (as amended or supplemented, if applicable), which
has been prepared and delivered by the Transferors to the Underwriters in
accordance with the provisions of this Agreement.
(b) (i) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first filed and
on the Closing Date, the Prospectus did or will, comply in all material respects
with the applicable requirements of the Act and the rules and regulations of the
Commission promulgated thereunder (the "RULES AND REGULATIONS");
(ii) on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading;
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(iii) at the Time of Sale, the Preliminary Prospectus did not or
will not include 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 (it being
understood that no representation or warranty is made with respect to the
omission of pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus);
(iv) as of the Closing Date, the Prospectus will not include 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; and
(v) other than the Preliminary Prospectus and the Prospectus, the
Transferors (including their agents and representatives other than the
Underwriters in their capacity as such) have not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the Act) that constitutes an offer to sell or solicitation of an offer to buy
the Certificates;
provided that no Transferor makes any representation or warranty as to the
information contained in or omitted from the Registration Statement, the
Preliminary Prospectus or the Prospectus in reliance upon and in conformity with
information furnished in writing to the Transferors or the Banks by the
Underwriters specifically for use in connection with the preparation of the
Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Preliminary Prospectus, (i) there has not been
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
situation or business prospects of such Transferor, and (ii) such Transferor has
not entered into any transaction or agreement (whether or not in the ordinary
course of business) that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Certificates,
otherwise than as set forth or contemplated in the Preliminary Prospectus.
(d) Such Transferor (i) is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is organized, (ii)
is qualified to transact business in, and is in good standing under, the laws of
each jurisdiction in which its activities require such qualification, and (iii)
has full power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted and to execute, deliver and perform its obligations under this
Agreement, each Transaction Document to which it shall be a party and the
Certificates.
(e) This Agreement has been duly and validly authorized, executed and
delivered by such Transferor.
(f) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by such Transferor, and assuming the due authorization,
execution and delivery thereof by the Trustee and the Servicer, constitutes a
valid and binding obligation of such Transferor enforceable against such
Transferor in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors rights generally
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is pursuant to a proceeding in equity or at law). As of
the Closing Date, the Pooling and Servicing Agreement will conform in all
material respects to the description thereof contained in the Preliminary
Prospectus.
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(g) The Certificates have been duly and validly authorized by all
required action of such Transferor, and when duly and validly executed by the
Transferors, authenticated by the Trustee and delivered in accordance with the
Pooling and Servicing Agreement, and delivered to and paid for by the
Underwriters as provided herein, will be validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement. As of the
Closing Date, the Certificates will have been duly and validly executed by the
Transferors, and will conform in all material respects to the descriptions
thereof contained in the Preliminary Prospectus.
(h) Each Receivables Purchase Agreement to which such Transferor is a
party has been duly authorized, executed and delivered by such Transferor, and
assuming the due authorization, execution and delivery thereof by the other
parties thereto, each such Receivables Purchase Agreement constitutes valid and
binding obligations of such Transferor, enforceable against such Transferor in
accordance with their terms, subject to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, each Receivables Purchase Agreement to which such Transferor is a party
will conform in all material respects to the description thereof contained in
the Preliminary Prospectus.
(i) The Receivables conform in all material respects with the
description thereof contained in the Preliminary Prospectus.
(j) Neither the transfer of the Receivables to the Trustee by such
Transferor, nor the issuance, sale and delivery of the Certificates, nor the
execution or delivery of this Agreement or any Transaction Document by such
Transferor, nor the consummation of any of the transactions herein or therein
contemplated, nor the fulfillment of the terms of the Certificates, any
Transaction Document or this Agreement, will result in the breach of any term or
provision of the charter or by-laws of such Transferor or conflict with, result
in a material breach, violation or acceleration of, or constitute a default
under, the terms of any material indenture or other agreement or instrument to
which such Transferor is a party or by which it or its properties is bound or
may be affected or any material statute, order or regulation applicable to such
Transferor of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over such Transferor or will result in
the creation of any Lien upon any property or assets of such Transferor (other
than as contemplated in any Transaction Document). Such Transferor is not a
party to, bound by, or in breach or violation of, any indenture or other
agreement or instrument, or subject to, or in violation of, any statute, order
or regulation of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over it, that materially and adversely
affects the ability of it to perform its obligations under this Agreement, any
Transaction Document to which it is a party or the Certificates.
(k) Other than as set forth or contemplated in the Preliminary
Prospectus, there are no charges, investigations, actions, suits, claims or
proceedings affecting such Transferor before or by any court, regulatory body,
administrative agency, governmental body or arbitrator now pending or, to the
best knowledge of such Transferor, threatened that, separately or in the
aggregate, (i) would reasonably be likely to have a material adverse effect on
(x) the general affairs, business, management, financial condition,
stockholders' equity, results of operations, regulatory status or business
prospects of such Transferor or (y) the ability of such Transferor to perform
its obligations under this Agreement, any Transaction Document to which it is a
party or the Certificates, (ii) assert the invalidity of this Agreement, any
Transaction Document or the Certificates, (iii) seek to prevent the issuance,
sale or delivery of the Certificates or any of the transactions contemplated by
this Agreement or any Transaction Document or (iv) seek to affect adversely the
federal income tax or ERISA attributes of the Certificates described in the
Preliminary Prospectus.
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(l) No federal, state or local tax, including intangibles tax or
documentary stamp tax, the non-payment of which would result in the imposition
of a Lien on the Receivables, is imposed with respect to the conveyance of the
Receivables by such Transferor pursuant to any Transaction Document, or in
connection with the issuance of the Certificates by the Trust, or the holding of
such Receivables by the Trust, or in connection with any of the other
transactions contemplated by this Agreement or any Transaction Document. Any
such taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of the Certificates or the execution and
delivery of this Agreement or any Transaction Document have been or will have
been paid by such Transferor at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of such
Transferor in each Transaction Document to which it is a party (individually and
in the aggregate) will be true and correct in all material respects.
(n) Except as required under the Securities Act, the Exchange Act and
other applicable securities laws, no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery and performance by such Transferor
of, or the compliance by such Transferor with, this Agreement, each Transaction
Document to which it is a party or the Certificates or the consummation of the
transactions contemplated hereby or thereby other than (i) those that have been
obtained or made and remain in full force and effect and (ii) without
limitation, the filing of Uniform Commercial Code financing statements with
respect to the Receivables.
(o) PricewaterhouseCoopers LLP, who have audited certain financial
statements of the Banks, are independent public accountants as required by the
Act and the Rules and Regulations.
(p) At the time of such transfer, such Transferor had good and
marketable title to the Receivables being transferred by it to the Trustee or
otherwise pursuant to the Pooling and Servicing Agreement or any other
Transaction Document, free and clear of any Liens (other than as contemplated in
the Pooling and Servicing Agreement) and will not have assigned to any Person
any of its right, title or interest in such Receivables or the Transaction
Documents (other than as contemplated in the Transaction Documents) or the
Certificates being issued pursuant to the Pooling and Servicing Agreement; and
such Transferor had the power and authority to so transfer such Receivables,
and, the Trustee, on behalf of the Trust, had and, on the Closing Date, will
have good and marketable title to, or a first-priority, perfected security
interest in, such Receivables, and, upon the delivery to the Underwriters of the
Certificates and payment by the Underwriters of the purchase price therefor on
the Closing Date, the Underwriters will have good and marketable title to the
Certificates, in each case free and clear of any Liens (other than as
contemplated in the Transaction Documents).
(q) The Trust is not, and will not be as a result of the issuance and
sale of the Certificates, an "investment company" or a company "controlled by"
an investment company within the meaning of the Investment Company Act of 1940,
as amended (the "1940 ACT").
(r) Such Transferor was not, on the date on which the first bona fide
offer (as described in Rule 164(h)(2) of the Act) of the Certificates was made,
an "ineligible issuer" as such term is defined in Rule 405 of the Act.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE BANKS. Each Bank,
as to and for itself only, represents and warrants to, and agrees with, the
Underwriters as follows:
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(a) Such Bank (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized, (ii) is
qualified to transact business in, and is in good standing under, the laws of
each jurisdiction in which its activities require such qualification, and (iii)
has full power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted and to execute, deliver and perform its obligations under this
Agreement and each Receivables Purchase Agreement to which it shall be a party.
(b) Each Receivables Purchase Agreement to which such Bank is a party
has been duly authorized, executed and delivered by such Bank, and assuming the
due authorization, execution and delivery thereof by the other parties thereto,
each such Receivables Purchase Agreement constitutes valid and binding
obligations of such Bank, enforceable against such Bank in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency and similar
laws affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law). As of the Closing Date, each Receivables
Purchase Agreement to which such Bank is a party will conform in all material
respects to the description thereof contained in the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and
delivered by such Bank.
(d) Other than as set forth or contemplated in the Preliminary
Prospectus, there are no charges, investigations, actions, suits, claims or
proceedings affecting such Bank before or by any court, regulatory body,
administrative agency, governmental body or arbitrator now pending or, to the
best knowledge of such Bank, threatened that, separately or in the aggregate,
would (i) reasonably be likely to have a material adverse effect on (x) the
general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory status or business prospects of such
Bank or (y) the ability of such Bank to perform its obligations under this
Agreement or any Receivables Purchase Agreement to which it is a party or (ii)
assert the invalidity of this Agreement or any Receivables Purchase Agreement to
which it is a party.
(e) As of the Closing Date, the representation and warranties of such
Bank in each Receivables Purchase Agreement to which it is a party (individually
and in the aggregate) will be true and correct in all material respects.
(f) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by such Bank of, or the compliance
by such Bank with, this Agreement or each Receivables Purchase Agreement to
which it is a party or the consummation of the transactions contemplated hereby
or thereby other than (i) those that have been obtained or made and remain in
full force and effect and (ii) without limitation, the filing of Uniform
Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Servicer, and assuming the due authorization,
execution and delivery thereof by the Trustee and the Transferors, constitutes a
valid and binding obligation of the Servicer enforceable against the Servicer in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors rights generally and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law).
(h) Such Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Receivables,
except as provided in the applicable Receivables Purchase Agreement, and agrees
to
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take all action required by such Receivables Purchase Agreement in order to
effect the sale of the related Receivables made pursuant to such Receivables
Purchase Agreement.
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 Transferors agree to sell to
the Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Transferors, on [______], or on such other date as shall be
mutually agreed upon by the Transferors and the Underwriters (the "CLOSING
DATE"), the number and type of Certificates set forth in Schedule A opposite the
name of such Underwriter. The Series 200[_]-[_] Class A Certificates being
purchased by the Underwriters hereunder are to be purchased at a purchase price
equal to [__]% of the principal amount thereof; and the Series 200[_]-[_] Class
B Certificates being purchased by the Underwriters hereunder are to be purchased
at a purchase price equal to [__]% of the principal amount thereof.
The closing of the sale of the Certificates (the "CLOSING") shall be
held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M. (E.S.T.) on the Closing Date.
Payment of the purchase price for the Certificates being sold and purchased
hereunder shall be made on the Closing Date by wire transfer of federal or other
immediately available funds to the accounts to be designated one Business Day
prior to the Closing Date by the Transferors, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co. as nominee for The Depository Trust
Company.
4. OFFERING BY UNDERWRITERS.
(a) It is understood that, after the Effective Date, the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Preliminary Prospectus.
(b) Other than the Preliminary Prospectus and the Prospectus, each
Underwriter severally represents, warrants and covenants that it has not
prepared, made, used, authorized, approved, disseminated or referred to and will
not prepare, make, use, authorize, approve, disseminate or refer to any "written
communication" (as defined in Rule 405 under the Act) that constitutes an offer
to sell or solicitation of an offer to buy the Certificates, including but not
limited to any "ABS informational and computational materials" as defined in
Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained
the prior written approval of the Transferors; provided, however, that each
Underwriter may prepare and convey to one or more of its potential investors one
or more "written communications" (as defined in Rule 405 under the Act)
containing no more than the following: information contemplated by Rule 134
under the Act and included or to be included in the Preliminary Prospectus or
the Prospectus, as well as a column or other entry showing the status of the
subscriptions for the Certificates or expected pricing parameters of the
Certificates (each such communication, an "UNDERWRITER FREE WRITING
PROSPECTUS").
(c) Each Underwriter severally represents and agrees (i) that it did
not enter into any contract of sale for any Certificates prior to the Time of
Sale and (ii) that, during the period prior to the filing of the final
Prospectus (as notified to the Underwriters by the Transferors) it will deliver
the Preliminary Prospectus to each investor to whom it sells Certificates at or
prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally represents, warrants and agrees that:
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(i) each Underwriter Free Writing Prospectus prepared by it will
not, as of the date such Underwriter Free Writing Prospectus was conveyed or
delivered to any prospective purchaser of Certificates, include any untrue
statement of material fact or omit any material fact necessary to make the
statements contained therein, when read together with the Preliminary
Prospectus, in light of the circumstances under which they were made, not
misleading; provided, however, that no Underwriter makes such representation,
warranty or agreement to the extent such misstatements or omissions were the
result of any inaccurate information that was included in the Preliminary
Prospectus or the Prospectus or any written, inaccurate information furnished to
the Underwriter by the Transferors expressly for use therein, which information
was not corrected by information subsequently provided by the Transferors to the
Underwriter before the time of first use of such Underwriter Free Writing
Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it
shall contain a legend substantially in the form of and in compliance with the
Rules and Regulations of the Act, and shall otherwise conform to any
requirements for "free writing prospectuses" under the Act.
(e) Each Underwriter, severally, represents, warrants and agrees that
it will not, at any such time that such Underwriter is acting as an
"underwriter" (as defined in Section 2(a)(11) of the Act) with respect to the
Certificates, transfer, deposit or otherwise convey any Certificates into a
trust or other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interest in, such
Certificates without the prior written consent of the Transferors.
(f) Each Underwriter, severally, represents, warrants and agrees that
it has not and will not, directly or indirectly, offer, sell or deliver any of
the Certificates or distribute the Prospectus, Preliminary Prospectus or any
other offering material relating to the Certificates in or from any jurisdiction
except under circumstances that will, to the best of its knowledge and belief,
result in compliance by it with any applicable laws and regulations thereof and
that will, to the best of its knowledge and belief, not impose any obligations
on the Transferors except as set forth herein.
5. CERTAIN AGREEMENTS OF THE TRANSFERORS. The Transferors severally
covenant and agree with the several Underwriters as follows:
(a) Immediately following the execution of this Agreement, the
Transferors will prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Base Prospectus, the price at which such Certificates are to be purchased by
the Underwriters, the initial public offering price, the selling concessions and
allowances, and such other information as the Transferors shall deem to be
appropriate. The Transferors will transmit each of the Preliminary Prospectus
and the Prospectus, including such Prospectus Supplement, to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in a filing
that complies with all applicable provisions of Rule 424(b). The Transferors
will advise the Underwriters promptly of any such filing pursuant to Rule
424(b).
(b) The Transferors will advise the Underwriters promptly of (i) any
proposal to amend or supplement the Registration Statement, the Preliminary
Prospectus or the Prospectus, (ii) any request by the Commission for any
amendment of or supplement to the Registration Statement, the Preliminary
Prospectus or the Prospectus or for any additional information, (iii) any
amendment or supplement to the Registration Statement, the Preliminary
Prospectus or the Prospectus and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose (it being agreed that
each Transferor will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible the lifting of any such stop order
issued by the Commission).
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(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act (including delivery as contemplated by
Rule 172 under the Act), any event occurs as a result of which the Preliminary
Prospectus or 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 or
supplement the Preliminary Prospectus or the Prospectus to comply with the Act,
the Transferors promptly will advise the Underwriters thereof and will prepare
and file, or cause to be prepared and filed, with the Commission an amendment or
supplement which will correct such statement or omission, or an amendment or
supplement which will effect such compliance. Any such filing shall not operate
as a waiver or limitation on any right of the Underwriters hereunder.
(d) As soon as practicable, but not later than December 31 of the year
following the year in which the Closing Date occurs, the Transferors will cause
the Trust to make generally available to Certificateholders an earnings
statement of the Trust covering a period of at least twelve months beginning
after the effective date of the Registration Statement that will satisfy the
provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(e) The Transferors 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 or prospectus supplement, the
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 request.
(f) The Transferors will promptly and from time to time take such
action as any Underwriter may reasonably request to qualify the Certificates for
offering and sale under the securities laws of such jurisdictions as such
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Certificates; provided that
in connection therewith no Transferor shall be required to qualify as a foreign
corporation or dealer in securities or to file a general consent to service of
process in any particular jurisdiction.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, the Transferors will deliver to you the annual statements
of compliance and the annual independent certified public accountants' reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(h) So long as any Certificate is outstanding and upon your request,
the Transferors will furnish to the Underwriters (i) as soon as practicable
after the end of the fiscal year all documents required to be distributed to
Certificateholders or filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Transferors or the Trust filed with any government or regulatory
authority that is otherwise publicly available.
(i) To the extent, if any, that the rating provided with respect to
the Certificates by any Rating Agency is conditional upon the furnishing of
documents or the taking of any other actions by any Transferor, such Transferor
shall use its best efforts to furnish such documents and take any such other
actions unless (a) the furnishing of such documents or the taking of any such
action is first required by such Rating Agency after the Execution Time and (b)
doing so would have a material adverse effect upon such Transferor.
9
(j) Between the date of this Agreement and the Closing Date, the
Transferors will not, without the prior written consent of the Representatives,
directly or indirectly, issue, sell or offer to sell securities similar to the
Certificates.
6. CERTAIN AGREEMENTS OF THE BANKS. Each Bank agrees with the
Underwriters that to the extent, if any, that the rating provided with respect
to the Certificates by any Rating Agency is conditional upon the furnishing of
documents or the taking of any other actions by such Bank, such Bank shall use
its best efforts to furnish such documents and take any such other actions
unless (a) the furnishing of such documents or the taking of any such action is
first required by such Rating Agency after the Execution Time and (b) doing so
would have a material adverse effect upon such Bank.
7. PAYMENT OF EXPENSES. Whether or not the transactions contemplated
hereunder are consummated, the Transferors will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
printing of the Prospectus and of each amendment or supplement thereto, (ii) the
preparation of this Agreement and each Transaction Document, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriters, (iv)
the fees and disbursements of the counsel to the Transferors and the fees and
disbursements of the Transferors' accountants, (v) the qualification of the
Certificates under securities laws in accordance with the provisions of Section
5(f), including filing fees in connection with the preparation of any blue sky
and legal investment survey, (vi) the printing and delivery to the Underwriters
of copies of the Prospectus and of each amendment or supplement thereto, (vii)
the preparation and filing of the Registration Statement and all amendments
thereto, (viii) the printing and delivery to the Underwriters of copies of any
blue sky or legal investment survey prepared in connection with the Certificates
and any supplements thereto, (ix) any fees charged by each Rating Agency for the
rating of the Certificates, (x) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.,
(xi) the fees and expenses of the Trustee and its counsel and (xii) one-half of
the fees and disbursements of counsel to the Underwriters (the other half of
such fees and disbursements to be paid for by the Underwriters).
8. CONDITIONS OF THE OBLIGATIONS OF EACH UNDERWRITER. The obligations
of each Underwriter to purchase, and to pay for, the Certificates will be
subject to the accuracy of the representations and warranties of each Transferor
and each Bank set forth herein as of the date hereof and the Closing Date, to
the accuracy of the statements of officers of each Transferor and each Bank made
pursuant hereto or in connection herewith, to the performance by each Transferor
and each Bank of its obligations hereunder, and to the following additional
conditions precedent:
(a) The Prospectus, the Prospectus Supplement and each supplement
thereto shall have been filed (if required) with the Commission in accordance
with the Act and the Rules and Regulations and Section 1 hereof, and, as of the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Underwriters, shall be contemplated
by the Commission or by any authority administering any state securities or
"blue sky" laws.
(b) On or prior to the date of this Agreement, the Underwriters shall
have received a letter, dated as of the date of the Preliminary Prospectus, of
PricewaterhouseCoopers LLP, certified public accountants, substantially in the
form of the draft to which the Underwriters have previously agreed and otherwise
in form and substance satisfactory to the Underwriters.
(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 Trust, any Transferor or either Bank that, in the judgment of the
Underwriters (after consultation with the Transferors), materially impairs the
market for or investment
10
quality of the Certificates or makes it impractical or inadvisable to market the
Certificates; (ii) any suspension or limitation on trading in securities
generally on the New York Stock Exchange; (iii) any suspension generally or
material limitation of trading of any securities of the Banks, the Transferors
or any Affiliate of the Banks or the Transferors on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal or
State of New York or other applicable state authorities; or (v) any outbreak or
escalation of hostilities or armed conflict 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 reasonable judgment of the
Underwriters, the effect of any such outbreak, escalation, declaration,
calamity, or emergency would make it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, each Transferor and each Bank shall have
furnished to the Representatives certificates of an executive officer of such
Transferor or such Bank, as applicable, as to the accuracy of the
representations and warranties of such Transferor or such Bank, as applicable,
herein at and as of the Closing Date, as to the performance by such Transferor
or such Bank, as applicable, of all of its obligations hereunder to be performed
at or prior to the Closing Date, and as to such other matters as the
Representatives may reasonably request.
(e) General Counsel for each of the Banks and each of the Transferors
shall have furnished to the Underwriters one or more written opinions, addressed
to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, substantially to the effect that:
(i) Each Bank has been duly incorporated or formed and is validly
existing and in good standing under the laws of the jurisdiction in which it is
organized, with full power and authority (corporate and other) to own its
properties and conduct its business, as presently owned and conducted by it, and
to enter into and perform its obligations under this Agreement and each
Receivables Purchase Agreement to which it is a party, and has had at all times
the power, authority and legal right to acquire, own and transfer the
Receivables as contemplated by such Receivables Purchase Agreements;
(ii) Each Bank (a) is duly qualified to do business and is in
good standing in the jurisdiction in which it is organized, and under applicable
laws, as they are currently interpreted and enforced, has obtained all necessary
licenses and approvals in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would materially and adversely affect the
enforceability of any Receivable or would adversely affect the ability of such
Bank to perform its obligations under this Agreement or the Receivables Purchase
Agreements to which it is a party and (b) without limiting the foregoing, has
the corporate power and authority to carry on its business as described in the
Prospectus and own and operate its property in connection therewith;
(iii) Each Transferor has been duly incorporated or formed and is
validly existing and in good standing under the laws of the jurisdiction in
which it is organized, with full power and authority (corporate, limited
liability company and other) to own its properties and conduct its business, as
presently owned and conducted by it, and to enter into and perform its
obligations under this Agreement, the Transaction Documents to which it is a
party and the Certificates, and has had at all times the power, authority and
legal right to acquire, own and transfer the Receivables as contemplated by the
Transaction Documents;
(iv) Each Transferor (a) is duly qualified to do business and is
in good standing in the jurisdiction in which it is organized, and under
applicable laws, as they are currently interpreted and enforced, has obtained
all necessary licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such licenses or approvals would materially and adversely
affect the enforceability of any Receivable or would adversely affect the
ability of such Transferor to perform its
11
obligations under this Agreement, the Transaction Documents to which it is a
party or the Certificates and (b) without limiting the foregoing, has the
corporate or limited liability company power and authority to carry on its
business as described in the Prospectus and own and operate its property in
connection therewith;
(v) This Agreement has been duly authorized, executed and
delivered by each Transferor and each Bank;
(vi) The Certificates have been duly authorized, executed and
delivered by the Transferors, and, when duly authenticated by the Trustee in
accordance with the terms of the Pooling and Servicing Agreement and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement;
(vii) Each Transaction Document to which each Transferor is a
party has been duly authorized, executed and delivered by such Transferor and
constitutes the legal, valid and binding agreement of such Transferor,
enforceable against it in accordance with its terms, subject, as to
enforceability, to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally, and (B) the
application of principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law);
(viii) Each Receivables Purchase Agreement to which each Bank is
a party has been duly authorized, executed and delivered by such Bank and
constitutes the legal, valid and binding agreement of such Bank, enforceable
against it in accordance with its terms, subject, as to enforceability, to (A)
the effect of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws relating to or affecting the rights and
remedies of creditors generally, and (B) the application of principles of equity
(regardless of whether considered and applied in a proceeding in equity or at
law);
(ix) The Trust is not now, and immediately following the sale of
the Certificates pursuant to this Agreement will not be, required to register
under the 1940 Act;
(x) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution, delivery and
performance by any Transferor of its obligations under this Agreement, any
Transaction Document to which it is a party or the Certificates, or (B) the
issuance or sale of the Certificates, except such as have been obtained under
the Act and as may be required under state securities or "blue sky" laws in
connection with the purchase and distribution of the Certificates by the
Underwriters and the filing of Uniform Commercial Code financing statements with
respect to the Receivables;
(xi) Neither the execution and delivery by each Bank of this
Agreement or the Receivables Purchase Agreements to which such Bank is a party
nor the performance by such Bank of the transactions therein contemplated nor
the fulfillment of the terms thereof does or will result in any material
violation of any statute or regulation, or, to the best knowledge of such
counsel, any order or decree of any court or governmental authority binding upon
such Bank or its property, or conflict with, or result in a material breach or
violation of any term or provision of, or result in a default under any of the
terms and provisions of, its charter or by-laws, or materially conflict with, or
result in a material breach or violation of any term or provision of, or result
in a material default under any of the terms and provisions, of any indenture,
loan agreement or other material agreement known to such counsel to which such
Bank is a party or by which such Bank is bound;
12
(xii) Neither the execution and delivery of this Agreement, the
Transaction Documents or the Certificates by each Transferor nor the performance
by such Transferor of the transactions therein contemplated nor the fulfillment
of the terms thereof does or will result in any material violation of any
statute or regulation, or, to the best knowledge of such counsel, any order or
decree of any court or governmental authority binding upon such Transferor or
its property, or conflict with, or result in a material breach or violation of
any term or provision of, or result in a default under any of the terms and
provisions or, its charter or by-laws, or materially conflict with, or result in
a material breach or violation of any term or provision of, or result in a
material default under any of the terms and provisions, of any indenture, loan
agreement or other material agreement known to such counsel to which such
Transferor is a party or by which such Transferor is bound;
(xiii) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to which either Bank is a
party or to which any property of either Bank is subject that, individually or
in the aggregate, (i) would have a material adverse effect on the ability of
either Bank to perform its obligations under this Agreement or any Receivables
Purchase Agreement to which such Bank is a party or (ii) assert the invalidity
of this Agreement or any Receivables Purchase Agreement to which such Bank is a
party;
(xiv) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to which any Transferor
is a party or to which any property of any Transferor is subject that,
individually or in the aggregate, (i) would have a material adverse effect on
the ability of any Transferor to perform its obligations under this Agreement,
any Transaction Document or the Certificates, (ii) assert the invalidity of this
Agreement, any Transaction Document or the Certificates, (iii) seek to prevent
the issuance, sale or delivery of the Certificates or the transactions
contemplated by this Agreement or any Transaction Document or (iv) seek to
affect adversely the federal income tax or ERISA attributes of the Certificates
described in the Preliminary Prospectus;
(xv) The Registration Statement and the Prospectus (except for
the financial statements, financial schedules and other financial and operating
data including therein, as to which such counsel expresses no view) comply as to
form in all material respects with the requirements of the Act and the Rules and
Regulations;
(xvi) The Registration Statement is effective under the Act, and
the Prospectus Supplement has been filed with the Commission pursuant to Rule
424(b) thereunder;
(xvii) Such counsel has not independently verified the accuracy,
completeness or fairness of the information contained in the Registration
Statement, the Preliminary Prospectus and the Prospectus. However, based upon
discussion with the Transferors and the Banks, their accountants and others, no
facts have come to the attention of such counsel that cause it to believe that
the Registration Statement, as of the Effective Date (except for the financial
statements, financial schedules and other financial and statistical data
included therein as to which such counsel expresses no view), contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Preliminary Prospectus, as of the Time of Sale,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the Prospectus
(as amended on or prior to the Closing Date) as of its date and at the Closing
Date contained or contains any untrue statement of a material fact or omitted or
omits 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 (it being understood that such counsel expresses no view as to the
financial statements, financial schedules, and other financial and statistical
data included in the Preliminary Prospectus or the Prospectus or, in the case of
the Preliminary
13
Prospectus, the omission of pricing and price-dependent information, which
information shall of necessity appear only in the final Prospectus). References
to the Preliminary Prospectus or the Prospectus in this paragraph include any
amendments or supplements thereto.
(f) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx XXX, Xxx Xxxx, Xxxxxx, Xxxxxxxx &
XxXxxxxx, and Xxxxxxxx, Xxxxxx & Finger, P.A., special UCC counsel for the
Transferors, shall have furnished to the Underwriters written opinions,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, with respect to certain matters relating to
the (i) transfer of the Receivables to the Transferors, as applicable, with
respect to the perfection of each such Transferor's interest in the Receivables
and with respect to other related matters and (ii) the transfer of the
Receivables to the Trust, with respect to the perfection of the Trust's interest
in the Receivables and with respect to other related matters.
(g) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special tax counsel for the
Transferors, shall have furnished to the Underwriters a written opinion,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that the Certificates will be
treated as indebtedness and the Trust will not be an association or publicly
traded partnership taxable as a corporation for federal income tax purposes.
(h) The Underwriters shall have received from Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel to the Underwriters, a written opinion, dated the Closing
Date, with respect to such matters as the Representatives may require (and each
Transferor and each Bank shall furnish to such counsel all documents requested
for the purpose of enabling it to pass upon such matters).
(i) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, shall have
furnished to the Underwriters a written opinion, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, substantially to the effect that:
(i) The Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of New York.
(ii) The Trustee has all requisite corporate power and authority
to execute and deliver, and to perform its obligations under each Transaction
Document to which it is a party and to carry out the transactions contemplated
by such Transaction Documents.
(iii) The execution and delivery by the Trustee of each
Transaction Document to which the Trustee is a party and the performance by the
Trustee of its obligations thereunder do not conflict with or result in a
violation of the charter or by-laws of the Trustee.
(iv) Each Transaction Document to which the Trustee is a party
(A) has been duly authorized, executed and delivered by the Trustee and (B)
assuming the due execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, subject as to enforceability
to (x) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating to or affecting the
rights and remedies of creditors generally and (y) the application of principles
of equity (regardless of whether considered and applied in a proceeding at law
or in equity).
(v) The Certificates have been duly authenticated by the Trustee
pursuant to the Pooling and Servicing Agreement.
14
(j) The Underwriters shall have received evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been filed
in the appropriate filing offices of the States of New York, Delaware and Utah
and such other jurisdictions as counsel to the Transferors deems appropriate to
reflect the interest of the Trust in the Receivables.
(k) The Series 200[_]-[_] Class A Certificates shall have been rated
"AAA" by Standard & Poor's Ratings Services and "Aaa" by Xxxxx'x Investors
Service, Inc., and the Series 200[_]-[_] Class B Certificates shall have been
rated "A" by Standard & Poor's Ratings Services and rated "A1" by Xxxxx'x
Investors Service, Inc. on the Closing Date, and letters to such effect dated
the Closing Date shall have been received from each Rating Agency.
(l) The Underwriters shall have received all written opinions required
by Standard & Poor's Ratings Services and Xxxxx'x Investors Service, Inc.,
addressed to the Underwriters and dated the Closing Date.
(m) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriters, and the Underwriters shall have received
such information, certificates and documents as any of them may reasonably
request.
9. INDEMNIFICATION. Centurion Bank (on behalf of itself and RFC III),
FSB (on behalf of itself and RFC IV) and RFC II agree to indemnify and hold
harmless each Underwriter, each Person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act, and any director, officer or
employee of any Underwriter or any such Person, as follows:
(a) (i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of (A) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (B) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus (it being understood that such
indemnification with respect to the Preliminary Prospectus does not include the
omission of pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus) or Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) any written
information furnished to an Underwriter by the Transferors or the Banks
expressly for use in any Underwriter Free Writing Prospectus, unless, in any of
the above cases, such untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written information
furnished to the Transferors or the Banks by the Underwriters expressly for use
in the Registration Statement (or any amendment thereto) or the Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto) (and, in
connection therewith, each Transferor and each Bank acknowledges that the
information set forth under the heading "Underwriting" relating to selling
concessions and reallowances in the Prospectus constitutes the only information
furnished in writing by the Underwriters or on behalf of the Underwriters for
inclusion in the Registration Statement, the Preliminary Prospectus or the
Prospectus);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental agency, or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission; and
15
(iii) against any and all expense whatsoever (including, without
limitation, the fees and disbursements of counsel chosen by such Underwriters or
Persons) reasonably incurred in investigating, preparing or defending against
any litigation or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not indemnified by the Transferors and
the Banks pursuant to subparagraphs (i) or (ii) above.
The indemnity agreement provided for in this subsection 9(a) will be in addition
to any liability that the Transferors and the Banks may otherwise have.
(b) Each Underwriter, severally, agrees to indemnify and hold harmless
the Transferors and the Banks, each of their respective directors, each of the
Transferors' officers who signed the Registration Statement, and each Person, if
any, who controls any Transferor or Bank within the meaning of Section 15 of the
Act against any and all loss, liability, claim, damage and expense (A) described
in the indemnity contained in subsection 9(a), but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), the Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Transferors or the Banks by
the Underwriters expressly for use in the Registration Statement (or any
amendment thereto), the Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto), (B) resulting from such Underwriter's failure
to convey (within the meaning of Rule 159 under the Act) the Preliminary
Prospectus to each investor with whom it enters into a contract of sale for any
Certificates prior to the time of such contract of sale, or (C) arising out of
any untrue statement or alleged untrue statement of a material fact contained in
any Underwriter Free Writing Prospectus prepared by such Underwriter, or the
omission or alleged omission therefrom, when read together with the Preliminary
Prospectus, of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that such Underwriter will not be liable in any
such case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or any such omission or alleged omission in any Underwriter Free
Writing Prospectus in reliance upon and in conformity with (x) any written,
inaccurate information furnished to such Underwriter by the Transferors or the
Banks expressly for use therein or (y) the Preliminary Prospectus or Prospectus,
which information was not corrected by information subsequently provided by the
Transferors or the Banks to such Underwriter prior to the time of first use of
such Underwriter Free Writing Prospectus. The Transferors and the Banks
acknowledge that the information set forth under the heading "Underwriting"
relating to selling concessions and reallowance in the Preliminary Prospectus
and the Prospectus constitutes the only information furnished in writing by the
Underwriters or on behalf of the Underwriters for inclusion in the Registration
Statement, the Preliminary Prospectus or the Prospectus. The indemnity agreement
provided for in this subsection 9(b) will be in addition to any liability which
each Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent it has been
materially prejudiced by such failure; and provided that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 9. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume
16
the defense thereof with counsel reasonably satisfactory to such indemnified
party. After notice from an indemnifying party to such indemnified party of its
election to assume the defense of such claim or action, such indemnifying party
shall not be liable to such indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided
that any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to such
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) such indemnifying
party has failed to assume the defense of such action and employ counsel
reasonably satisfactory to such indemnified party, in which case, if such
indemnified party notifies such indemnifying party in writing that it elects to
employ separate counsel at the expense of such indemnifying party, such
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party (it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for all indemnified parties, which firm shall be designated in writing
by the Representatives, if the indemnified parties under this Section 9 consist
of any Underwriter or any of their respective officers, employees or controlling
persons, or by the Transferors or the Banks, if the indemnified parties under
this Section 9 consist of a Transferor or a Bank or any of their respective
directors, officers, employees or controlling persons). Each indemnified party
shall use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(a) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suite or proceeding and (b) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of such indemnified party, or (ii) be liable for
any settlement of any claim, action, suit or proceeding effected without its
prior written consent (which consent shall not be unreasonably withheld).
(d) For clarification purposes, in this Section 9 only, it is
understood that the terms "Preliminary Prospectus" and "Prospectus" include
static pool information required to be disclosed pursuant to Item 1105 of
Regulation AB under the Act, without regard to whether such information is
deemed to be a part of a prospectus under Item 1105(d) of Regulation AB under
the Act.
10. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreements provided for in
Section 9 are for any reason held to be unenforceable or insufficient by the
indemnified parties, although applicable in accordance with its terms, the
Transferors and the Banks, on the one hand, and the Underwriters, on the other
hand, shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreements incurred by the
Transferors, the Banks and one or more of the Underwriters in such proportions
that the Underwriters are responsible for that portion represented by the
underwriting compensation earned by them bears to the initial public offering
price or prices and the Transferors and the Banks shall be responsible for the
balance; provided, however, that no Person guilty of fraudulent
17
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 Transferors, the Banks and the Underwriters each agree
that it would not be just or equitable if the amount of such contribution were
determined by pro rata or per capita allocation. The Underwriters' obligations
in this Section 10 to contribute are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section, each
Person, if any, who controls the Underwriters within the meaning of Section 15
of the Act shall have the same rights to contribution as the Underwriters and
each director of the Transferors, each director of the Banks, such officer of
the Transferors who signed the Registration Statement, and each Person, if any,
who controls the Transferors or the Banks within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Transferors and the
Banks.
11. SURVIVAL. Each party hereto agrees that the respective
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon, in the case of each Transferor and each Bank, by each Underwriter
and, in the case of each Underwriter, by the Transferors and the Banks,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of the Transferors, the Banks or the Underwriters, and that the respective
representations, warranties and agreements (including without limitation the
indemnity and contribution agreement) made by each party hereto herein or in any
such certificate or other instrument shall survive the delivery of and payment
for the Certificates.
12. TERMINATION. This Agreement may be terminated in the sole
discretion of the Underwriters by notice to the Transferors given at or prior to
the Closing Date in the event that the Transferors or the Banks shall have
failed, refused or been unable to perform in all material respects all
obligations and satisfy in all material respects all conditions on its part to
be performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 12 shall be without liability of any party to
any other party except (i) as provided in Sections 7, 9 and 10 hereof and (ii)
if this Agreement is terminated by the Representatives in accordance with any of
the provisions of Section 8(a), (b), (d), (e), (f), (g), (j), (k), (l) or (m),
the Transferors will reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel to the
Underwriters.
13. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail on the Closing Date to purchase the Certificates which
it or they are obligated to purchase under this Agreement (the "DEFAULTED
SECURITIES"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) If the aggregate amount of Defaulted Securities does not exceed
10% of the aggregate principal amount of the Certificates, each of the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) If the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Certificates, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 13 shall relieve any defaulting
Underwriter from liability in respect of its default.
18
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Transferors
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
14. CAPACITY. The Banks and the Transferors acknowledge and agree that
(i) the transaction contemplated by this Agreement is an arm's-length commercial
transaction between the Banks and the Transferors, on the one hand, and each of
the Underwriters, on the other, (ii) in connection therewith with respect to all
aspects of the transaction contemplated herein, each Underwriter is acting as a
principal and not the agent or fiduciary of the Banks and the Transferors, and
the Banks and the Transferors hereby expressly disclaim any fiduciary
relationship with respect thereto, and (iii) none of the Underwriters has
assumed an advisory responsibility in favor of the Banks or the Transferors with
respect to the transaction contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Banks or the Transferors on other matters) or any other obligation to the
Banks or the Transferors except the obligations expressly set forth in this
Agreement.
15. NOTICES. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail, postage
prepaid and return receipt requested, or transmitted by telecopier with
transmission confirmed, if to (a) the Underwriters, addressed to [__________],
Attention: [__________], and to [__________], Attention: [__________], or to
such other address as the Representatives may designate in writing to the
Transferors, (b) Centurion Bank, addressed to American Express Centurion Bank,
0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Telecopier: (000) 000-0000,
Attention: Chief Executive Officer, (c) FSB, addressed to American Express Bank,
FSB, 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: President,
Telecopier: (000) 000-0000, (d) American Express Receivables Financing
Corporation II, addressed to American Express Receivables Financing Corporation
II, American Express Tower, 000 Xxxxx Xxxxxx, Xxxx 000, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary, Telecopier: (000) 000-0000, (e) American Express
Receivables Financing Corporation III LLC, 0000 Xxxxx 0000 Xxxx, Xxxx 0000,
00-00-00, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: President, Telecopier: (801)
945-4075, or (f) American Express Receivables Financing Corporation IV LLC, 0000
Xxxxx 0000 Xxxx, Xxxx 0000, 00-00-00, Xxxx Xxxx Xxxx, Xxxx 00000, Attention:
President, Telecopier: (000) 000-0000 (in the case of (e) and (f), with a copy
to American Express Travel Related Services Company, Inc., as administrator,
American Express Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, Telecopier: (000) 000-0000).
16. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Nothing expressed herein is intended or shall be construed to give any Person
other than the Persons referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
17. SEVERABILITY OF PROVISIONS. Any covenant, provision, agreement or
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties hereto with respect to the matters and
transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
19
19. AMENDMENT. 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.
20. HEADINGS. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
21. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall constitute an original, but all of which shall together
constitute one instrument.
22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF.
(signature page follows)
20
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
AMERICAN EXPRESS CENTURION BANK
By:
------------------------------------
Name:
Title:
AMERICAN EXPRESS BANK, FSB
By:
------------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION II
By:
------------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION III LLC
By:
------------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION IV LLC
By:
------------------------------------
Name:
Title:
[Signature page - Underwriting Agreement Series 200[_]-[_]]
21
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
[_______________________],
for itself and as a representative of the
several Underwriters named in Schedule A hereto
By:
------------------------------------
Name:
Title:
[_______________________],
for itself and as a representative of the
several Underwriters named in Schedule A hereto
By:
------------------------------------
Name:
Title:
[Signature page - Underwriting Agreement Series 200[_]-[_]]
22
SCHEDULE A
Aggregate Principal Amount
of the Series 200[_]-[_]
Underwriters of the Series 200[_]-[_] Class A Certificates Class A Certificates
---------------------------------------------------------- --------------------------
$
TOTAL $
Aggregate Principal Amount
of the Series 200[_]-[_]
Underwriters of the Series 200[_]-[_] Class B Certificates Class B Certificates
---------------------------------------------------------- --------------------------
$
TOTAL $
Time of Sale: [o]:[o][o] (Eastern Time) on [________]
(Underwriting Agreement-Series 200[_]-[_])
S-A-1
