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EXHIBIT 1.1
December 8, 2000
Spiegel Credit Card Master Note Trust
$600,000,000 Floating Rate Asset Backed Notes,
Series 2000-A
UNDERWRITING AGREEMENT
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Banc of America Securities LLC
as Representative of the
Underwriters set forth herein (the "Representative")
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Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255-0001
Ladies and Gentlemen:
1. Introductory. Spiegel Credit Corporation III ("SCCIII" or the "Seller")
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proposes to cause Spiegel Credit Card Master Note Trust (the "Issuer") to issue
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$600,000,000 aggregate principal amount of Spiegel Credit Card Master Note Trust
Floating Rate Asset Backed Notes, Series 2000-A (the "Notes").
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The Issuer is a common law trust formed pursuant to a Trust Agreement,
dated as of December 1, 2000 (the "Trust Agreement"), between the Seller and
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Bankers Trust Company, as owner trustee (the "Owner Trustee"). The Notes will be
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issued pursuant to a Master Indenture, dated as of December 1, 2000 (the "Master
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Indenture"), between the Issuer and The Bank of New York, as indenture trustee
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(the "Indenture Trustee"), as supplemented by the Series 2000-A Indenture
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Supplement with respect to the Notes to be dated as of December 1, 2000 (the
"Indenture Supplement," and together with the Master Indenture, the
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"Indenture").
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Initially, the primary asset of the Issuer will be a certificate (the
"Collateral Certificate") representing a beneficial interest in the assets held
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in Spiegel Master Trust ("SMT"), issued pursuant to the Amended and Restated
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Pooling and Servicing Agreement, dated as of December 13, 1994 (as heretofore
amended, the "Amended and Restated Pooling and Servicing Agreement"), among
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SCCIII, First Consumers National Bank (the "Bank") and The Bank of New York
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(successor-in- interest to the corporate trust administration of Harris Trust
and Savings Bank), as trustee (the "SMT Trustee"), and the Collateral Series
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Supplement, dated as of December 1, 2000, to the Amended and Restated Pooling
and Servicing Agreement (the "Collateral Supplement" and together with the
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Amended and Restated Pooling and Servicing Agreement, the "PSA"). The assets of
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SMT include,
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among other things, certain amounts due (the "Receivables") on a pool of private
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label credit card accounts (the "Accounts").
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The Receivables are transferred to SMT pursuant to the Amended and Restated
Pooling and Servicing Agreement. The Receivables transferred to SMT by the
Seller are acquired by the Seller from the Bank and Spiegel Acceptance
Corporation ("SAC") pursuant to a Receivables Purchase Agreement, dated as of
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September 20, 1994 (as amended, the "Receivables Purchase Agreement") among
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SCCIII, the Bank and SAC. The Receivables transferred to the Seller by SAC are
acquired by SAC from the Bank pursuant to the Operating Agreement, dated as of
December 15, 1990 between the Bank and SAC (as amended, the "Operating
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Agreement"). The Collateral Certificate will be transferred by the Seller to the
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Issuer pursuant to the Transfer and Servicing Agreement, dated as of December 1,
2000 (the "Transfer and Servicing Agreement"), among the Seller, the Bank, as
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Servicer, and the Issuer.
The Notes will have the benefit of a financial guaranty issuance policy
(the "Policy") issued by MBIA Insurance Corporation (the "Insurer") pursuant to
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the terms of an Insurance and Reimbursement Agreement among the Insurer, the
Issuer, the Seller and the Servicer (the "Insurance Agreement"). The Notes will
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also have the benefit of an interest rate swap agreement (the "Swap") between
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the Owner Trustee, on behalf of the Issuer, and Bank of America, N.A. (the
"Counterparty").
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The Bank has agreed to provide notices and perform on behalf of the Issuer
certain other administrative obligations required by the Transfer and Servicing
Agreement, the Master Indenture and each indenture supplement for each series of
Notes issued by the Issuer, pursuant to an Administration Agreement, dated as of
December 1, 2000 (the "Administration Agreement"), between the Bank, as
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administrator (in such capacity, the "Administrator"), and the Issuer. The
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Transfer and Servicing Agreement, the PSA, the Receivables Purchase Agreement,
the Operating Agreement, the Indenture, the Trust Agreement, the Administration
Agreement, the Swap, the Policy and the Insurance Agreement are referred to
herein, collectively, as the "Transaction Documents."
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This Underwriting Agreement is referred to herein as this "Agreement." To
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the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Transaction Documents.
The Seller and Spiegel, Inc. ("Spiegel") hereby agree, severally and
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not jointly, with the underwriters for the Notes listed on Schedule A hereto
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(the "Underwriters") as follows:
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2. Representations and Warranties of the Seller and Spiegel. Each of the
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Seller (the representations and warranties as to the Seller being given by the
Seller) and Spiegel (the representations and warranties as to Spiegel, SAC and
the Bank being given by Spiegel) represents and warrants to, and agrees with,
the Underwriters that:
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(a) The Seller is duly organized and validly existing in good
standing as a corporation under the laws of the State of Delaware, and has
all requisite corporate power, authority and legal right to own its
property and transact the business in which it is now engaged, and to
execute, deliver and perform its obligations under this Agreement, the
Transfer and Servicing Agreement, the PSA, the Receivables Purchase
Agreement, the Insurance Agreement and the Trust Agreement.
(b) Spiegel is duly organized and validly existing in good standing as
a corporation under the laws of the State of Delaware, and has all
requisite corporate power, authority and legal right to own its property
and transact the business in which it is now engaged.
(c) SAC is duly organized and validly existing in good standing as a
corporation under the laws of the State of Delaware, and has all requisite
corporate power, authority and legal right to own its property and transact
the business in which it is now engaged, and to execute, deliver and
perform its obligations under the Receivables Purchase Agreement and the
Operating Agreement.
(d) The Bank is a national banking association duly organized and
validly existing in good standing under the laws of the United States, and
has all requisite corporate power, authority and legal right to own its
property and conduct its credit card business as such properties are now
owned and such business is conducted at present, and to own the Accounts
and to execute, deliver and perform its obligations under the Receivables
Purchase Agreement, the Transfer and Servicing Agreement, the PSA, the
Insurance Agreement, the Operating Agreement and the Administration
Agreement.
(e) The execution and delivery of each of the Transaction Documents to
which it is a party, and the incurrence of the obligations therein set
forth and the consummation of the transactions contemplated thereunder have
been duly authorized by the Seller, SAC and the Bank, as applicable, by all
necessary action on the part of the Seller, SAC and the Bank, as
applicable.
(f) This Agreement has been duly authorized, executed and delivered by
the Seller and Spiegel.
(g) Each of the Transaction Documents has been, or on or before the
Closing Date will be, executed and delivered by the Seller, SAC and the
Bank, as applicable, and when executed and delivered by the other parties
thereto, will constitute a valid and binding agreement of the Seller, SAC
and the Bank, as applicable, enforceable against the Seller, SAC and the
Bank, as applicable, in accordance with its terms, except, in each case, to
the extent that (i) the enforceability thereof may be subject to
insolvency, reorganization, moratorium, receivership or other similar laws
now or hereafter in effect relating to creditors' or other obligees' rights
generally or the rights of creditors or other obligees of institutions
insured by the FDIC, (ii) the remedy of specific performance and injunctive
and
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other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought and (iii) certain remedial provisions of the Indenture may be
unenforceable in whole or in part under the UCC, but the inclusion of such
provisions does not render the other provisions of the Indenture invalid
and notwithstanding that such provisions may be unenforceable in whole or
in part, the Indenture Trustee, on behalf of the Noteholders, will be able
to enforce the remedies of a secured party under the UCC.
(h) The Notes will be issued pursuant to the terms of the Indenture
and, when executed by the Owner Trustee on behalf of the Issuer and
authenticated by the Indenture Trustee in accordance with the Indenture and
delivered pursuant to this Agreement, will be validly issued and
outstanding. The Notes will be in the form contemplated by the Indenture,
and the Notes and the Indenture will conform to the descriptions thereof
contained in the Prospectus and Registration Statement, as amended or
supplemented.
(i) The Collateral Certificate will be issued pursuant to the terms of
the PSA and, when executed by the SMT Trustee in accordance with the PSA,
will be validly issued and outstanding. The Collateral Certificate will be
in the form contemplated by the PSA, and the Collateral Certificate and the
PSA will conform to the description thereof contained in the Prospectus and
the Registration Statement, as amended or supplemented.
(j) None of Spiegel, the Seller, SAC or the Bank is in violation of
any Requirement of Law or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
instrument to which it is a party or by which it is bound or to which any
of its property is subject, which violations or defaults separately or in
the aggregate would have a material adverse effect on Spiegel, the Seller,
SAC or the Bank.
(k) None of the issuance and sale of the Notes, the issuance of the
Collateral Certificate or the execution and delivery by any of Spiegel, the
Seller, SAC or the Bank of this Agreement or any Transaction Document to
which it is a party, nor the incurrence by Spiegel, the Seller, SAC or the
Bank of the obligations herein and therein set forth, nor the consummation
of the transactions contemplated hereunder or thereunder, nor the
fulfillment of the terms thereof does or will (i) violate any Requirement
of Law presently in effect, applicable to it or its properties or by which
it or its properties are or may be bound or affected, (ii) conflict with,
or result in a breach of, or constitute a default under, any indenture,
contract, agreement, deed, lease, mortgage or instrument to which it is a
party or by which it or its properties are bound or (iii) result in the
creation or imposition of any Lien upon any of its property or assets,
except for those encumbrances created under the Transaction Documents.
(l) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission,
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authority, official or body required in connection with the execution and
delivery by Spiegel, the Seller, SAC or the Bank of this Agreement or the
Transaction Documents to which it is a party or to the consummation of the
transactions contemplated hereunder and thereunder, or to the fulfillment
of the terms hereof and thereof have been or will have been obtained on or
before the Closing Date.
(m) All actions required to be taken by Spiegel, the Seller, SAC, the
Issuer and the Bank as a condition to the offer and sale of the Notes as
described herein or the consummation of any of the transactions described
in the Prospectus and the Registration Statement (each as defined below)
have been or, prior to the Closing Date, will be taken.
(n) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), and complies as to form with the TIA
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and the rules and regulations of the Securities and Exchange Commission
(the "Commission") thereunder.
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(o) The representations and warranties made by the Seller in the
Transfer and Servicing Agreement, the PSA, the Trust Agreement, the
Insurance Agreement and the Receivables Purchase Agreement or made in any
Officer's Certificate of the Seller delivered pursuant to any Transaction
Document to which it is a party will be true and correct at the time made
and on and as of the Closing Date as if set forth herein, except that to
the extent that any such representation or warranty expressly relates to an
earlier date, such representation or warranty is true and correct at and as
of such earlier date.
(p) The representations and warranties made by SAC in the Receivables
Purchase Agreement and the Operating Agreement or made in any Officer's
Certificate of SAC delivered pursuant to any Transaction Document to which
it is a party will be true and correct at the time made and on and as of
the Closing Date as if set forth herein, except that to the extent that any
such representation or warranty expressly relates to an earlier date, such
representation or warranty is true and correct at and as of such earlier
date.
(q) The representations and warranties made by the Bank in the
Receivables Purchase Agreement and the Operating Agreement, and in its
capacity as Servicer and Administrator, in the Transfer and Servicing
Agreement, the Insurance Agreement, the PSA and the Administration
Agreement, respectively, or made in any Officer's Certificate of the Bank
delivered pursuant to any Transaction Document to which it is a party will
be true and correct at the time made and on and as of the Closing Date as
if set forth herein, except that to the extent that any such representation
or warranty expressly relates to an earlier date, such representation or
warranty is true and correct at and as of such earlier date.
(r) The Receivables had an aggregate outstanding balance determined as
of October 31, 2000 in the amount set forth in the Prospectus.
(s) The Seller 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,
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title or interest in, the Receivables or the Collateral Certificate, except
as provided in the PSA and the Transfer and Servicing Agreement, and agrees
to take all action required by the PSA and the Transfer and Servicing
Agreement in order to maintain the security interest in the Receivables and
the Collateral Certificate granted pursuant to the PSA and the Transfer and
Servicing Agreement.
(t) SAC 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 Receivables Purchase Agreement, and agrees to
take all action required by the Receivables Purchase Agreement in order to
maintain the security interest in the Receivables granted pursuant to the
Receivables Purchase Agreement.
(u) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the
Receivables, except as provided in the Receivables Purchase Agreement, and
agrees to take all action required by the Receivables Purchase Agreement in
order to maintain the security interests in the Receivables granted
pursuant to the Receivables Purchase Agreement.
(v) A registration statement on Form S-3 (Nos. 333-39062 and
333-39062-01), including a form of prospectus and such amendments thereto
as may have been filed prior to the date hereof, relating to the Notes and
the offering thereof in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Act"), has been filed with, and has been declared
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effective by, the Commission. If any post-effective amendment to such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment
has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means the date and time as of which such
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registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective
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Date" means the date of the Effective Time. Such registration statement, as
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amended at the Effective Time, is hereinafter referred to as the
"Registration Statement." The Seller proposes to file with the Commission
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pursuant to Rule 424(b) ("Rule 424(b)") under the Act a supplement (the
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"Prospectus Supplement") to the prospectus included in the Registration
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Statement (such prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424(b), is hereinafter referred to as the "Base
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Prospectus") relating to the Notes and the method of distribution thereof.
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The Base Prospectus and the Prospectus Supplement, together with any
amendment thereof or supplement thereto, are hereinafter referred to as the
"Prospectus".
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(w) On the Effective Date, the Registration Statement conformed in all
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder (the "Rules and Regulations") and the TIA and the
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rules and regulations thereunder and did not include any untrue statement
of a material fact or omit to state any material fact required
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to be stated therein or necessary to make the statements therein not
misleading, and on the date of this Agreement, the Registration Statement
and the Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) the Registration Statement and the Prospectus will
conform, in all respects with the requirements of the Act and the Rules and
Regulations and the TIA and the rules and regulations thereunder and
neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in
or omissions from either of such documents based upon written information
furnished to the Seller or the Bank by the Underwriters specifically for
use therein. Each of the Seller and the Spiegel hereby acknowledges that
the only information provided by the Underwriters for inclusion in the
Registration Statement and the Prospectus is set forth on the cover page of
the Prospectus Supplement in the table under the heading "Series 2000-A
Asset Backed Notes" and on the line across from "Price to public," in the
table listing the Underwriters and the Principal Amount of Notes under the
heading "Underwriting" in the Prospectus Supplement, in the table following
the third paragraph under the heading "Underwriting" in the Prospectus
Supplement in regard to Underwriters' compensation, and in the first
sentence of the penultimate paragraph under the heading "Underwriting" in
the Prospectus Supplement (the "Underwriters' Information").
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(x) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise set forth
therein, there has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Bank, SAC or the Seller that would have a material adverse effect on the
Bank, SAC, the Seller or the Issuer.
3. Purchase, Sale, Payment and Delivery of the Notes.
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(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Seller agrees to sell to the Underwriters, and the Underwriters agree
to purchase from the Seller, at a purchase price of 99.70% of the principal
amount thereof, $600,000,000 aggregate principal amount of the Notes, each
Underwriter to purchase the amounts shown on Schedule A hereto.
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(b) The Seller will cause the Issuer to deliver the Notes to the
Underwriters against payment of the purchase price in immediately available
funds, drawn to the order of the Seller, at the office of Mayer, Brown and
Platt, in Chicago, Illinois at 10:00 a.m., Chicago time, on December 19,
2000 or at such other time not later than seven full business days
thereafter as the Representative and the Seller determine, such time being
herein referred to as the "Closing Date." The Notes so to be delivered
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shall be represented by one or more definitive notes registered in the name
of Cede & Co., as nominee for The Depository Trust Company. The Notes will
be available for inspection by the Underwriters
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at the office at which the Notes are to be delivered no later than five
hours before the close of business in Chicago on the business day prior to
the Closing Date.
4. Offering by Underwriters. It is understood that after the Effective
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Date, the Underwriters propose to offer the Notes for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with the
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Underwriters that:
(a) Immediately following the execution of this Agreement, the Seller
will prepare a Prospectus Supplement setting forth the amount of Notes
covered thereby and the terms thereof not otherwise specified in the Base
Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions
and allowances, and such other information as the Seller deems appropriate.
The Seller will transmit the Prospectus, including such Prospectus
Supplement, to the Commission pursuant to Rule 424(b) by a means reasonably
calculated to result in filing with the Commission pursuant to Rule 424(b).
The Seller will not file any amendment of the Registration Statement with
respect to the Notes or supplement to the Prospectus unless a copy has been
furnished to the Representative for its review a reasonable time prior to
the proposed filing thereof or to which the Representative shall reasonably
object in writing. The Seller will advise the Representative promptly of
(i) the effectiveness of any amendment or supplementation of the
Registration Statement or Prospectus, (ii) any request by the Commission
for any amendment or supplementation of the Registration Statement or the
Prospectus or for any additional information, (iii) the receipt by the
Seller of any notification with respect to the suspension of qualification
of the Notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purposes and (iv) the institution by the
Commission of any stop order proceeding in respect of the Registration
Statement, and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Seller promptly will
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Underwriters' consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(c) As soon as practicable, the Seller will cause the Issuer to make
generally available to the Noteholders an earnings statement or statements
of the Issuer covering a period of at least 12 months beginning after the
Effective Date which will satisfy the
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provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(d) The Seller will furnish to the Representative copies of the
Registration Statement (one of which will be signed and will include all
exhibits), the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Representative reasonably requests.
(e) The Seller will endeavor to qualify the Notes for sale under the
securities or Blue Sky laws of such jurisdictions as the Representative
shall reasonably request and the determination of the eligibility for
investment of the Notes under the laws of such jurisdictions as the
Representative may designate and will continue such qualifications in
effect so long as required for the distribution of the Notes; provided,
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however, that the Seller shall not be obligated to qualify to do business
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in any jurisdiction where such qualification would subject the Seller to
general or unlimited service of process in any jurisdiction where it is not
now so subject.
(f) So long as any Note is outstanding, the Seller will furnish, or
cause the Servicer to furnish, to the Representative copies of each
certificate and the annual statements of compliance delivered to the Owner
Trustee, the Indenture Trustee and each Rating Agency pursuant to Section
3.5 of the Transfer and Servicing Agreement and independent certified
public accountant's servicing reports furnished to the Indenture Trustee,
the Servicer and the Rating Agencies pursuant to Sections 3.6(a) and (b) of
the Transfer and Servicing Agreement, by first class mail as soon as
practicable after such certificates, statements and reports are furnished
to the Owner Trustee, the Indenture Trustee or the Rating Agencies, as the
case may be.
(g) So long as any Note is outstanding, the Seller will furnish, or
cause the Servicer to furnish, to the Representative, by first-class mail
as soon as practicable (i) all documents concerning the Notes distributed
by the Seller or the Servicer to the Owner Trustee, the Indenture Trustee
or the Noteholders, or filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) any order of
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the Commission under the Act or the Exchange Act applicable to the Issuer
or to the Seller, or pursuant to a "no-action" letter obtained from the
staff of the Commission by the Seller and affecting the Issuer or the
Seller and (iii) from time to time, such other information concerning the
Issuer as the Representative may reasonably request.
(h) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated for any reason, the Seller will
pay all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters for any reasonable expenses
(including reasonable fees and disbursements of counsel to the
Underwriters) incurred by them in connection with the transactions
contemplated by this Agreement, including without limitation, all
reasonable costs and expenses (i) incident to the preparation, issuance,
execution, authentication and
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delivery of the Notes, (ii) incident to the preparation, printing
(including word processing and duplication costs) and delivery of the
Prospectus and Preliminary Prospectus (including in each case all exhibits,
amendments, attachments and supplements thereto), (iii) in connection with
the printing (including word processing and duplication costs) and delivery
of this Agreement and the other Transaction Documents and the furnishing to
the Underwriters of copies of the Prospectus as herein provided, (iv) in
connection with the structuring and marketing of the Notes, (v) incident to
the qualification of the Notes for sale and determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as the Representative designates, (vi) for any fees charged
by investment rating agencies for the rating of the Notes and (vii) for any
filing fee of the National Association of Securities Dealers, Inc. relating
to the Notes.
(i) To the extent, if any, that any of the ratings provided with
respect to the Notes by any Rating Agency are conditional upon the
furnishing of documents or the taking of any other actions by the Seller,
the Seller shall furnish such documents and take any such other actions as
are reasonably necessary to satisfy such condition.
6. Conditions of the Obligations of the Underwriters. The obligation of the
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Underwriters to purchase and pay for the Notes will be subject to the accuracy
of the representations and warranties by or on behalf of Spiegel, the Seller,
SAC and the Bank herein, to the accuracy of the statements of officers of the
Seller and the Bank made pursuant to the provisions hereof, to the performance
by the Seller and the Bank of their respective obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the date of this Agreement, the Representative
shall have received a letter, dated the date of this Agreement, of KPMG
LLP, confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder, substantially in the form heretofore agreed to and otherwise in
form and in substance satisfactory to the Representative and its counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Seller or the Representative, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of Spiegel, the Seller or the Bank which, in the judgment of
the Underwriters, make it impractical or inadvisable to proceed with the
public offering or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus, (ii) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall
have been established on either of such exchanges or
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such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction; (iii) a banking
moratorium shall have been declared by Federal or state authorities; (iv)
the United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States; (v) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States
shall be such) as to make it, in the judgment of the Underwriters,
impractical or inadvisable to proceed with the public offering or delivery
of the Notes on the terms and in the manner contemplated in the Prospectus
or (vi) any material adverse change in the financial markets for asset-
backed securities in the United States if, in the judgment of the
Underwriters, the effect of which is to make it impractical or inadvisable
to proceed with the public offering or delivery of the Notes on the terms
and in the manner contemplated in the Prospectus.
(d) As of the Closing Date, the Swap shall be in place.
(e) The Representative shall have received an opinion, dated the
Closing Date, of Rooks, Pitts and Poust, special counsel for the Seller,
SAC and the Bank, satisfactory in form and substance to the Representative
and its counsel to the effect that:
(i) Spiegel is a corporation in good standing, duly organized
and validly existing under the laws of the State of Delaware; the
Seller is a corporation in good standing, duly organized and validly
existing under the laws of the State of Delaware; SAC is a corporation
in good standing, duly organized and validly existing under the laws
of the State of Delaware; the Bank is a national banking association
in good standing, duly organized and validly existing under the laws
of the United States of America; and each of Spiegel, the Seller, SAC
and the Bank (each collectively referred to in this subsection (d) as
a "Spiegel Entity") is authorized by its certificate of incorporation
--------------
or articles of association, as the case may be, to transact the
business in which it is engaged and none of Seller, SAC or the Bank is
required to qualify or register as a foreign corporation, in any state
in order to conduct its business as presently conducted, except where
the failure to so qualify or register would not have a material
adverse effect upon the Noteholders;
(ii) Each Spiegel Entity has full corporate power and authority
to enter into and perform its obligations under each Transaction
Document and this Agreement to which it is a party;
(iii) Each Spiegel Entity (except Spiegel) has the corporate
power and authority and legal right to acquire, own and transfer, and,
in the case of the Bank, to service, the Receivables;
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<PAGE>
(iv) Each of the Transaction Documents and this Agreement
has been duly authorized, executed and delivered by each Spiegel
Entity that is a party thereto;
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for (a) the execution
and delivery by any Spiegel Entity of any Transaction Document or this
Agreement to which such Spiegel Entity is a party or the performance
by such Spiegel Entity of its obligations thereunder, or (b) the
issuance and sale of the Notes;
(vi) Neither the execution and delivery of the Transaction
Documents and this Agreement by any Spiegel Entity that is party
thereto nor the performance by such Spiegel Entity of the transactions
therein contemplated nor the fulfillment of the terms thereof does or
will result in any violation of any statute or regulation or any order
or decree of any court or governmental authority binding upon such
Spiegel Entity or its property, or conflict with, or result in a
breach or violation of any term or provision, or result in a default
under any of the terms and provisions, of such Spiegel Entity's
certificate of incorporation or articles of association, as the case
may be, or by-laws or any material indenture, loan agreement or other
material agreement known to such counsel to which such Spiegel Entity
is a party or by which such Spiegel Entity is bound;
(vii) There is no legal or governmental proceeding pending to
which any Spiegel Entity is a party or to which any Spiegel Entity is
subject which, individually or in the aggregate (a) would have a
material adverse effect on the ability of such Spiegel Entity to
perform its obligations under the Transaction Documents or this
Agreement, (b) assert the invalidity of any Transaction Document, this
Agreement, the Seller Interest or the Collateral Certificate, (c) seek
to prevent the issuance, sale or delivery of the Notes or any of the
transactions contemplated by the Transaction Documents or this
Agreement or (d) seek to adversely affect the federal income tax
consequences of the Notes; and
(viii) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened under the Act.
(ix) Each of the Transaction Documents to which the Seller,
SAC or the Bank is a party constitutes the legal, valid and binding
agreement of the Seller, SAC and the Bank, as the case may be, under
the laws of Illinois, enforceable against each such Person in
accordance with its terms, subject to (w) limitations imposed by
bankruptcy, insolvency, reorganization, liquidation, arrangement,
fraudulent conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws relating to or
affecting the rights of creditors generally or the rights of creditors
of national banking associations; (x) rights to
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indemnification and contribution which may be limited by applicable
law and equitable principles or otherwise unenforceable as against
public policy; (y) the unenforceability under certain circumstances of
provisions imposing penalties, forfeiture, late payment charges, or an
increase in interest rate upon delinquency in payment or the
occurrence of any event of default; and (z) general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(x) This Agreement constitutes the legal, valid and binding
obligation of Spiegel and the Seller under the laws of the State of
Illinois, enforceable against Spiegel and the Seller in accordance
with its terms, subject to (w) limitations imposed by bankruptcy,
insolvency, reorganization, liquidation, arrangement, fraudulent
conveyance, moratorium, receivership, conservatorship, readjustment of
debts, creditors' rights or other laws relating to or affecting the
rights of creditors generally or the rights of creditors of national
banking associations; (x) rights to indemnification and contribution
which may be limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (y) the
unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in
interest rate upon delinquency in payment or the occurrence of any
event of default; and (z) general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(xi) When the Notes have been duly executed and delivered by
the Issuer, authenticated by the Indenture Trustee in accordance with
the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with this Agreement, they will be validly
issued and outstanding, will constitute legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in
accordance with their terms and will be entitled to the benefits of
the Indenture, subject to (w) limitations imposed by bankruptcy,
insolvency, reorganization, liquidation, arrangement, fraudulent
conveyance, moratorium, receivership, conservatorship, readjustment of
debts, creditors' rights or other laws relating to or affecting the
rights of creditors generally or the rights of creditors of national
banking associations; (x) rights to indemnification and contribution
which may be limited by applicable law and equitable principles or
otherwise unenforceable as against public policy; (y) the
unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in
interest rate upon delinquency in payment or the occurrence of any
event of default; and (z) general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific
performance or
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<PAGE>
injunctive relief, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(xii) The statements in the Base Prospectus under the
headings "Risk Factors--If a conservator or receiver were appointed
for First Consumers National Bank, or if we or Spiegel Acceptance
became a debtor in a bankruptcy case, delays or reductions in payment
of your notes could occur," "Material Legal Aspects of the
Receivables," "ERISA Considerations" and "Federal Income Tax
Consequences" and the statements in the Prospectus Supplement under
the headings "Structural Summary--Tax Status" and "--ERISA
Considerations" to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been reviewed by us and
are correct in all material respects.
(xiii) This Agreement, the Transaction Documents and the Notes
conform in all material respects to the descriptions thereof contained
in the Prospectus.
(xiv) The Indenture has been duly qualified under the TIA and
complies as to form with the TIA and the rules and regulations of the
Commission thereunder. The Issuer is not now, and immediately
following the issuance of the Notes pursuant to the Indenture will not
be, required to be registered under the Investment Company Act of
1940, as amended.
(xv) Subject to the discussion in the Base Prospectus under
the heading "Federal Income Tax Consequences", the Notes will properly
be characterized as indebtedness and the issuance of the Notes will
not cause the Issuer to be deemed an association (or publicly traded
partnership) taxable as a corporation, for U.S. federal income tax
purposes.
(xvi) The Indenture constitutes the legal, valid and binding
obligation of the Issuer under the laws of the State of Illinois,
subject to (w) limitations imposed by bankruptcy, insolvency,
reorganization, liquidation, arrangement, fraudulent conveyance,
moratorium, receivership, conservatorship, readjustment of debts,
creditors' rights or other laws relating to or affecting the rights of
creditors generally or the rights of creditors of national banking
associations; (x) rights to indemnification and contribution which may
be limited by applicable law and equitable principles or otherwise
unenforceable as against public policy; (y) the unenforceability under
certain circumstances of provisions imposing penalties, forfeiture,
late payment charges, or an increase in interest rate upon delinquency
in payment or the occurrence of any event of default; and (z) general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
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<PAGE>
(xvii) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations under the Act, except that in each case such counsel need
not express any opinion as to the financial and statistical data
included therein or excluded therefrom or the exhibits to the
Registration Statement and, except as and, to the extent set forth in
paragraphs (xii) and (xiii), such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus.
(xviii) If the FDIC is appointed as conservator or receiver for
the Bank and if a court were to determine that the Indenture Trustee
has a security interest in the Receivables and the proceeds thereof,
the court would hold that the security interest of the Indenture
Trustee would be enforceable against the Bank with respect to the
Receivables and such proceeds.
(xix) When the Indenture Trustee has taken possession of the
Collateral Certificate issued by SMT, the Transaction Documents have
been executed and delivered and SMT has received payment for the
Collateral Certificate, the Indenture Trustee will become the
registered holder of the Collateral Certificate, subject to no Liens
of record.
Such counsel also shall state that they have participated in
conferences with representatives of the Seller and the Bank and their
accountants, the Underwriters and counsel to the Underwriters concerning the
Registration Statement and the Prospectus and have considered the matters to be
stated therein and the matters stated therein, although they are not
independently verifying the accuracy, completeness or fairness of such
statements (except as stated in paragraph (iv) above) and based upon and subject
to the foregoing, nothing has come to such counsel's attention to cause such
counsel to believe that the Registration Statement (excluding any exhibits filed
therewith), at the time it became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as of the date hereof, contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that such
counsel has not been requested to, and does not, make any comment in such
opinion with respect to the financial statements, supporting schedules and other
financial or statistical information contained in the Registration Statement or
the Prospectus).
(f) The Representative shall have received from Mayer, Brown and
Platt, special counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters relating to this
transaction as the Representative may require, and the Seller shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
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<PAGE>
(g) The Representative shall have received an opinion, dated the
Closing Date, of Ball Janik LLP, special Oregon counsel for the Bank,
satisfactory in form and substance to the Representative and its counsel
with respect to (i) certain matters relating to the transfer of the
Receivables from the Bank to the Seller under the Receivables and from the
Bank to SAC under the Operating Agreement and (ii) the perfection of the
security interest in favor of the Seller and SAC in the Receivables and the
proceeds thereof and the Issuer in the Receivables and the proceeds
thereof.
(h) The Representative shall have received an opinion, dated the
Closing Date, of Rooks, Pitts and Poust, counsel for the Seller and SAC,
satisfactory in form and substance to the Representative and its counsel
with respect to (i) certain matters relating to the transfer of the
Receivables from the Seller and SAC to SMT and (ii) the perfection of the
security interest in favor of SMT in the Receivables and the proceeds
thereof.
(i) The Representative shall have received an opinion, dated the
Closing Date, of Jones, Day, Reavis & Pogue, counsel for Bank of America,
N.A. as the initial Counterparty under the Swap, satisfactory in form and
substance to the Representative and its counsel with respect to certain
matters relating to the interest rate swap agreement.
(j) The Representative shall have received a certificate from each of
the Seller and the Bank, dated the Closing Date, of a Treasurer, Vice
President or more senior officer of the Seller or the Bank, as the case may
be, in which such officer, to the best of his/her knowledge after
reasonable investigation, shall state that (u) the representations and
warranties of the Seller and the Bank, as the case may be, in this
Agreement are true and correct on and as of the Closing Date, (v) the
Seller or the Bank, as the case may be, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, (w) the representations and
warranties of the Seller or the Bank, as the case may be, contained in this
Agreement and the Transaction Documents to which it is a party are true and
correct as of the dates specified herein and therein, (x) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are threatened
by the Commission, (y) nothing has come to such officers' attention that
would lead such officers to believe that the Registration Statement or the
Prospectus, and any amendment or supplement thereto, as of its date and as
of the Closing Date, contained an untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (z) subsequent to the date of the Prospectus,
there has been no material adverse change in the financial position or
results of operation of the Bank's credit card business except as set forth
in or contemplated by the Prospectus or as described in such certificate.
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<PAGE>
(k) The Representative shall have received an opinion of Winston &
Strawn, counsel to the Owner Trustee, dated the Closing Date, satisfactory
in form and substance to the Representative and its counsel, to the effect
that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of
the State of New York;
(ii) The Owner Trustee has the power and authority to
execute, deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby;
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms;
(iv) Each of the Indenture, the Trust Agreement, the Swap,
the Insurance Agreement and the Transfer and Servicing Agreement
(collectively referred to in this subsection (i) as the "Trust
Documents") has been duly executed and delivered by the Owner Trustee,
as Owner Trustee on behalf of the Issuer;
(v) Neither the execution, delivery or performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of the Trust Documents, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the States of New York and
Illinois or the United States of America governing the banking or
trust powers of the Owner Trustee;
(vi) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of the Trust Documents, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, contemplated thereby, is in
violation of the charter or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Illinois, the State of
New York or of the United States of America governing the banking or
trust powers of the Owner Trustee or, to such counsel's knowledge,
without independent investigation, any indenture, mortgage, bank
credit agreement, note or bond purchase agreement, long- term lease,
license or other agreement or instrument to which it is a party or by
which it is bound or, to such counsel's knowledge, without independent
investigation, of any judgment or order applicable to the Owner
Trustee;
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<PAGE>
(vii) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Illinois or the State of New York
is required by or with respect to the Owner Trustee, in its individual
capacity or as Owner Trustee, as the case may be, for the valid
execution and delivery of the Trust Documents, or for the validity or
enforceability thereof; and
(viii) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
governmental authority which, if adversely determined, would
materially and adversely affect the ability of the Owner Trustee to
carry out the transactions contemplated by the Trust Agreement.
(l) The Representative shall have received an opinion of Rooks, Pitts
and Poust, special Illinois counsel to the Issuer, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) The Issuer is validly existing as a common law trust
under the laws of the State of Illinois;
(ii) The Issuer, through the Owner Trustee, (A) has the
trust power and authority pursuant to the Trust Agreement to (x)
execute, deliver and perform its obligations under the Trust
Agreement, the Administration Agreement, the Indenture, the Swap and
the Transfer and Servicing Agreement (collectively referred to in this
subsection (l) as the "Trust Documents"), (y) to execute, deliver and
issue the Notes, and (z) to issue the Seller Interest, and (B) duly
authorized, executed and delivered the Trust Documents and the Notes;
(iii) Each of the Trust Documents to which the Issuer is a
party constitutes the legal, valid and binding agreement of the
Issuer, acting through the Owner Trustee, under the laws of Illinois,
enforceable against the Issuer, through the Owner Trustee, in
accordance with its terms, subject to (w) limitations imposed by
bankruptcy, insolvency, reorganization, liquidation, arrangement,
fraudulent conveyance, moratorium, receivership, conservatorship,
readjustment of debts, creditors' rights or other laws relating to or
affecting the rights of creditors generally or the rights of creditors
of national banking associations; (x) rights to indemnification and
contribution which may be limited by applicable law and equitable
principles or otherwise unenforceable as against public policy; (y)
the unenforceability under certain circumstances of provisions
imposing penalties, forfeiture, late payment charges, or an increase
in interest rate upon delinquency in payment or the occurrence of any
event of default; and (z) general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific
performance or
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<PAGE>
injunctive relief, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(iv) When issued in accordance with the Trust Agreement, the
Seller Interest will be validly issued and entitled to the benefits of
the Trust Agreement;
(v) Neither the execution, delivery and performance by the
Issuer of the Trust Documents or the Notes, nor the consummation by
the Issuer of any of the transactions by the Issuer contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action
in respect of, any governmental authority or agency of the State of
Illinois other than the filing of any financing statements with the
Illinois Secretary of State in connection with the Indenture;
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, nor the consummation by the Issuer of
the transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule or regulation of the State of Illinois
applicable to the Issuer; and
(vii) With respect to the Issuer and the Receivables: (a)
there is no document, stamp, exercise or other similar tax imposed by
the State of Illinois upon the perfection of a security interest in
the Receivables, in the transfer of the Receivables to or from the
Issuer, or upon the issuance of the Notes; (b) there is no personal
property tax imposed by the State of Illinois upon or measured by the
corpus of the Issuer; and (c) the characterization of the Issuer for
federal income tax purposes will be determinative of the
characterization of the Issuer for Illinois income tax purposes and
assuming that the Issuer has only one owner, the Issuer will not be
subject to Illinois income tax or personal property replacement tax
and Noteholders who are not otherwise subject to Illinois income tax
will not be subject to tax by reason of their ownership of the Notes
and the receipt of income therefrom.
(m) The Representative shall have received an opinion of Seward &
Kissel, counsel to the Indenture Trustee dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel,
to the effect that:
(i) The Indenture Trustee is a banking corporation
organized and validly existing and in good standing under the laws of
the State of New York and is authorized and qualified to accept the
trusts imposed by the Indenture and to act as Indenture Trustee under
the Indenture;
(ii) The acknowledgment by the Indenture Trustee of the
Transfer and Servicing Agreement has been duly authorized, executed
and delivered by the Indenture Trustee. The Indenture Trustee has duly
authorized, executed and
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<PAGE>
delivered the Indenture. Assuming the due authorization, execution and
delivery thereof by the other parties thereto, the Indenture is the
legal, valid and binding obligation of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its
terms, subject to bankruptcy and insolvency laws and general
principles of equity;
(iii) The Indenture Trustee has duly executed and
authenticated the Notes;
(iv) The Indenture Trustee is duly authorized and empowered
to exercise trust powers under applicable law;
(v) None of (x) the execution and authentication of the
Notes, (y) the acknowledgment of the Transfer and Servicing Agreement
or (z) the execution, delivery and performance of the Indenture by the
Indenture Trustee conflicts with or will result in a violation of (A)
any law or regulation of the United States of America or the States of
New York and Illinois governing the banking or trust powers of the
Indenture Trustee or (B) the Organization Certificate or Bylaws of the
Indenture Trustee.
(vi) No approval, authorization or other action by, or
filing with, any governmental authority of the United States of
America or the State of New York having jurisdiction over the banking
or trust powers of the Indenture Trustee is required in connection
with the execution and delivery by the Indenture Trustee of the
Indenture or the performance by the Indenture Trustee of the terms of
the Indenture or the acknowledgment of the Transfer and Servicing
Agreement.
(n) The Representative shall have received an opinion of Sidley &
Austin, counsel to the Insurer, satisfactory in form and substance to the
Representative and its counsel with respect to certain matters relating to the
Insurer and the Policy.
(o) The Representative shall have received reliance letters addressed
to the Representative, dated as of the Closing Date, allowing the Representative
to rely on each opinion of counsel delivered to a Rating Agency, the Indenture
Trustee, the Seller, or the Bank in connection with the issuance of the Notes.
(p) The Representative shall have received evidence satisfactory to
the Representative that the Notes shall be rated Aaa by Moody's Investors
Service, Inc., AAA by Standard & Poor's Ratings Services and AAA by Fitch Inc.
(q) The Representative shall have received evidence reasonably
satisfactory to it that the Policy has been executed and delivered by the
Insurer and delivered to the Indenture Trustee.
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<PAGE>
The Seller will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably request.
7. Indemnification and Contribution. (a) Spiegel and the Seller, jointly
--------------------------------
and severally, will indemnify and hold harmless the Underwriters against any
losses, claims, damages or liabilities, joint or several, to which the
Underwriters may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Underwriters for any legal or other expenses reasonably incurred
by the Underwriters in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
--------
however, that Spiegel and the Seller will not be liable in any such case to the
-------
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with the
Underwriters' Information; provided further, that the Seller and the Bank will
-------- -------
not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any preliminary prospectus to the extent that any
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold Notes to a Person as to whom it is established that there
was not sent or given, at or prior to written confirmation of such sale, a copy
of the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by the Act if the Seller
or the Bank notified the Representative in writing in accordance with Section
5(a) hereof and previously furnished copies of the Prospectus (excluding
documents incorporated by reference) in the quantity requested in accordance
with Section 5(d) hereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the preliminary prospectus and corrected in the
Prospectus or the Prospectus as then amended or supplemented.
(b) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless Spiegel and the Seller against any losses, claims,
damages or liabilities to which Spiegel or the Seller may become subject,
under the Act or otherwise and will reimburse any legal or other expenses
reasonably incurred by Spiegel or the Seller in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that, with
respect to each of the Underwriters, such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with the
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Underwriters' Information, and will reimburse any legal or other expenses
reasonably incurred by Spiegel and the Seller in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; provided, however, that the failure to notify an
-------- -------
indemnifying party shall not relieve it from any liability which it may
have under this Section 7 except to the extent it has been materially
prejudiced by such failure; and provided further, however, that the failure
-------- ------- -------
to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 7. 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 proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding and does not include a statement as to, or an
admission of, fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Spiegel and the Seller on the one hand and the
Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
Spiegel and the Seller on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by Spiegel and the Seller on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) of the Notes received by the Seller
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<PAGE>
bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
Spiegel and the Seller or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission with respect to the Notes. The
amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection
(d) shall be deemed to include any other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Underwriters
shall not be required to contribute any amount in excess of the amount by
which the total underwriting discount as set forth on the cover page of the
Prospectus Supplement exceeds the amount of damages which the Underwriters
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission with respect to the Notes.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of Spiegel and the Seller under this Section
shall be in addition to any liability which Spiegel, the Seller or the Bank
may otherwise have and shall extend, upon the same terms and conditions, to
each Person, if any, who controls the Underwriters within the meaning of
the Act; and the obligations of the Underwriters under this section shall
be in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director of
Spiegel or the Seller, to each officer of the Seller who has signed the
Registration Statement and to each Person, if any, who controls Spiegel or
the Seller within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements of
Spiegel and the Seller or their officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriters, Spiegel, the Seller or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is terminated
or if for any reason other than default by the Underwriters the purchase of the
Notes by the Underwriters is not consummated, the Seller and Spiegel shall
remain responsible for the expenses to be paid by them pursuant to Section 5 and
the respective obligations of Spiegel, the Seller and the Underwriters pursuant
to Section 7 shall remain in effect. If for any reason the purchase of the Notes
by the Underwriters is not consummated other than solely because of the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(c),
the Seller and Spiegel will reimburse the Underwriters for all out-of-pocket
expenses reasonably incurred by them in connection with the offering of the
Notes.
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<PAGE>
9. Computational Materials and ABS Term Sheets. (a) Each Underwriter
-------------------------------------------
agrees to provide to the Seller, not less than two Business Days prior to the
date on which the Seller is required to file the Prospectus Supplement pursuant
to Rule 424(b), any information used by it (in such written or electronic format
as required by the Seller) with respect to the offering of the Notes that
constitutes "Computational Materials," as defined in the Commission's No-Action
-----------------------
Letter, dated May 20, 1994, addressed to Kidder, Peabody Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated and Kidder Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994 (the "Kidder/PSA Letter")), that is not contained in the Prospectus
-----------------
(without taking into account information incorporated therein by reference).
(b) Each Underwriter agrees to provide to the Seller, not less than
two Business Days prior to the date on which the Seller is required to file
the Prospectus Supplement pursuant to Rule 424(b), any information used by
it (in such written or electronic format as required by the Seller) with
respect to the offering of the Notes that constitutes "ABS Term Sheets," as
---------------
defined in the Commission's No-Action Letter, dated February 17, 1995,
addressed to the Public Securities Association, that is not contained in
the Prospectus (without taking into account information incorporated
therein by reference).
(c) Each Underwriter severally agrees, assuming all information
provided by the Seller is accurate and complete in all material respects,
to indemnify and hold harmless the Seller, each of the officers and
directors of the Seller and each Person who controls the Seller within the
meaning of Section 15 of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of a material fact contained in the Computational
Materials or ABS Term Sheets, if any, provided by such Underwriter, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as
such expenses are incurred. The obligations of each Underwriter under this
Section 9(c) shall be in addition to any liability that such Underwriter
may otherwise have.
(d) The Seller shall file with the Commission any Computational
Materials or ABS Term Sheets, if any, provided by the Underwriters no later
than the date on which such Computational Materials or ABS Term Sheets are
required to be filed pursuant to the applicable No-Action Letters.
The procedures set forth in Sections 7(c) and 7(d) shall be equally
applicable to this Section 9(c). Notwithstanding anything in this Section 9,
each Underwriter represents and warrants
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<PAGE>
that it has not used any Computational Materials or ABS Term Sheets in
connection with the offering of the Notes.
10. Obligation of the Underwriters. Each Underwriter represents and agrees
------------------------------
that it has not and will not, directly or indirectly, offer, sell or deliver any
of the Notes or distribute the Prospectus or any other offering materials
relating to the Notes in or from any jurisdiction except under circumstances
that will, to the best of its knowledge and belief, result in compliance with
any applicable laws and regulations thereof in effect on the date hereof and
that, to the best of its knowledge and belief, will not impose any material
obligations under laws and regulations of the subject jurisdictions that relate
to the issuance of securities, as in effect on the date of this Agreement on the
Bank, Spiegel, the Issuer or the Seller except as set forth herein.
11. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Notes set forth
opposite their names in Schedule A hereto bear to the aggregate amount of Notes
set forth opposite the names of all the remaining Underwriters) the Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Notes set forth in Schedule A hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such nondefaulting
Underwriters do not purchase all the Notes, this Agreement will terminate
without liability to any nondefaulting Underwriter, Spiegel or the Seller. In
the event of a default by any Underwriter as set forth in this Section 11, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representative shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter for its liability, if any, to Spiegel and the Seller
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
12. Notices. All communications hereunder will be in writing and, if sent
-------
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255-0001
Attn: Global Asset Backed Securitization Group, Mail Code NC1-007-10-07
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<PAGE>
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
counterparts 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 ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
15. Financial Services Act. Each Underwriter represents and warrants to,
----------------------
and agrees with, Spiegel and the Seller that (w) it has complied and shall
comply with all applicable provisions of the Financial Services Act 1986 and the
Public Offers of Securities Regulations 1995 (the "Regulations") with respect to
anything done by it in relation to the Notes in, from or otherwise involving the
United Kingdom; (x) it has only issued or passed on and shall only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Notes to a Person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 or who is a Person to whom the document may otherwise lawfully be issued or
passed on; (y) it has not offered or sold and, during the period of six months
from the date hereof, will not offer or sell any Note to Persons in the United
Kingdom except to Persons whose ordinary activities involve them in acquiring,
holding, managing, or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Regulations.
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<PAGE>
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Seller whereupon this letter and your acceptance
shall become a binding agreement among Spiegel, the Seller and the Underwriters.
Very truly yours,
SPIEGEL, INC.
By: /s/ John R. Steele
Title: Treasurer
SPIEGEL CREDIT CORPORATION III
By: /s/ John R. Steele
Title: Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
BANC OF AMERICA SECURITIES LLC
as Representative of the
Underwriters set forth herein
By: /s/ Luis O. Araneda
Title: Managing Director
-27-
<PAGE>
SCHEDULE A
Notes
-----
<TABLE>
<CAPTION>
Underwriters Principal Amount of
------------ Notes
-----
<S> <C>
Banc of America Securities LLC $420,000,000
Deutsche Bank Securities Inc. $60,000,000
J.P. Morgan Securities Inc. $60,000,000
ABN AMRO Incorporated $30,000,000
HSBC Securities (USA) Inc. $30,000,000
-----------
Total $600,000,000
============
</TABLE>
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