EXHIBIT 1.1
JCP MASTER CREDIT CARD TRUST
JCP RECEIVABLES, INC.
▇. ▇. ▇▇▇▇▇▇ COMPANY, INC.
UNDERWRITING AGREEMENT
November 19, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Underwriters
named in Schedule A hereto
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. JCP Receivables, Inc., a Delaware corporation ("JCPR"),
proposes to sell $650,000,000 aggregate principal amount of 5.50% Class A Asset
Backed Certificates, Series E (the "Certificates") issued by JCP Master Credit
Card Trust (the "Trust"). The Certificates will be issued pursuant to a Master
Pooling and Servicing Agreement among JCPR, ▇. ▇. Penney Company, Inc., as
servicer ("JCPenney"), and The Fuji Bank and Trust Company, as trustee (the
"Trustee"), dated as of September 5, 1988, as amended as of October 15, 1997, as
supplemented by the Series E Supplement with respect to the Certificates
(together, the "Pooling and Servicing Agreement") (references to the Pooling and
Servicing Agreement herein may, as the context requires, include all supplements
thereto, including the Series E Supplement). $71,341,463 aggregate principal
amount of Class B Investor Interest, Series E (the "Class B Investor Interest")
and $71,341,463 aggregate principal amount of Class C Investor Interest, Series
E (the "Class C Investor Interest") will also be issued pursuant to the Pooling
and Servicing Agreement. The Class B Investor Interest and the Class C Investor
Interest are expected to be initially retained by JCPR. JCPR has entered into a
Receivables Purchase Agreement with JCPenney, as seller of the Receivables,
dated as of September 5,
1988, as amended as of October 15, 1997 (together with any supplements thereto,
the "Receivables Purchase Agreement"), which provides for the sale of
Receivables (as defined below) by JCPenney to JCPR. Each Certificate will
represent a specified percentage Undivided Interest in the Trust. To the extent
not defined herein, capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
JCPR and JCPenney agree with Credit Suisse First Boston Corporation,
as representative (the "Representative") of the underwriters named in Schedule A
hereto (the "Underwriters") as follows:
2. Representations and Warranties of JCPR. JCPR represents and warrants
to, and agrees with, the Underwriters that:
(a) A registration statement on Form S-1 (Registration No. 333-64649)
relating to the Certificates, including a form of prospectus, has been filed
with, and has been declared effective by, the Securities and Exchange Commission
(the "Commission"). If any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent such amendment has been declared effective by
the Commission. For purposes of this Agreement, "Effective Time" means the date
and time as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the Commission,
and "Effective Date" means the date of the Effective Time. Such registration
statement, as amended at the Effective Time, including all information deemed to
be a part thereof as of the Effective Time pursuant to paragraph (b) of Rule
430A ("Rule 430A") under the Securities Act of 1933, as amended (the "Act"), is
hereinafter referred to as the "Registration Statement," and the form of
prospectus relating to the Certificates, as filed pursuant to paragraph (1) or
(4) of Rule 424(b) ("Rule 424(b)") under the Act, is hereinafter referred to as
the "Prospectus."
(b) On any Effective Date, the Registration Statement conformed in
all material respects to the requirements of the Act and the published rules and
regulations of the Commission (the "Rules and Regulations"), and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. 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) such documents will conform, in all material respects to the requirements
of the Act and the Rules and
2
Regulations, and none of such documents includes, and on the Closing Date (as
defined below) the Prospectus will not include, any untrue statement of a
material fact, or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
two preceding sentences do not apply to statements in or omissions from either
of such documents based upon written information furnished to JCPR by the
Underwriters for use therein.
(c) Upon payment therefor as provided herein, the Certificates will have
been duly authorized and (assuming their due authentication by the Trustee) will
have been validly issued and will conform in all material respects to the
description thereof in the Prospectus, and will be entitled to the benefits of
the Pooling and Servicing Agreement.
(d) The issue and sale of the Certificates and the compliance by JCPR
with all of the provisions of the Certificates, the Pooling and Servicing
Agreement, the Receivables Purchase Agreement and this Agreement will not
conflict with or result in any breach which would constitute a material default
under, or, except as contemplated by the Pooling and Servicing Agreement, result
in the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of JCPR, material to JCPR, pursuant to the terms of any
indenture, loan agreement or other agreement or instrument for borrowed money to
which JCPR is a party or by which JCPR may be bound or to which any of the
property or assets of JCPR may be bound or to which any of the property or
assets of JCPR, material to JCPR, is subject, nor will such action result in any
material violation of the provisions of the Certificate of Incorporation, as
amended, or Bylaws of JCPR or, to the best of JCPR's knowledge, any statute or
any order, rule or regulation applicable to JCPR of any court or any Federal,
state or other regulatory authority or other governmental body having
jurisdiction over JCPR, and no consent, approval, authorization or other order
of, or filing with, any court or any such regulatory authority or other
governmental body is required for the issue and sale of the Certificates except
as may be required under the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and securities laws of the various states and
other jurisdictions in which the Underwriters will offer and sell Certificates
and except for the filing of any financing statement required to perfect the
Trust's interest in the Receivables.
(e) To the best of JCPR's knowledge, the compliance by JCPenney with all
of the provisions of the Pooling and Servicing Agreement and the
3
Receivables Purchase Agreement will not conflict with or result in any breach
which would constitute a material default under, or, except as contemplated by
the Pooling and Servicing Agreement and the Receivables Purchase Agreement,
result in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of JCPenney or any subsidiary thereof, material to
JCPenney and its subsidiaries (whether or not consolidated) considered as a
whole, pursuant to the terms of any indenture, loan agreement or other agreement
or, except as contemplated by the Receivables Purchase Agreement, instrument for
borrowed money to which JCPenney, JCPR or any Affiliate thereof is a party or by
which JCPenney, JCPR or any Affiliate thereof may be bound or to which any of
the property or assets of JCPenney, JCPR or any Affiliate thereof may be bound
or to which any of the property or assets of JCPenney, JCPR or any Affiliate
thereof, material to JCPenney, JCPR or any Affiliate thereof (whether or not
consolidated) considered as a whole, is subject, nor will such action result in
any material violation of the provisions of the Restated Certificate of
Incorporation or the Bylaws of JCPenney or, to the best of JCPR's knowledge, any
statute or any order, rule or regulation applicable to JCPenney of any court or
any Federal, state or other regulatory authority or other governmental body
having jurisdiction over JCPenney.
(f) The Principal Receivables conveyed by JCPR to the Trust under the
Pooling and Servicing Agreement had an aggregate outstanding balance determined
as of September 30, 1998 in accordance with the Pooling and Servicing Agreement
of not less than $1,444,269,021.
(g) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Trust is not required to be registered under the Investment Company Act
of 1940, as amended (the "Investment Company Act").
3. Purchase, Sale, Payment and Delivery of Certificates. On the basis of
the representations, warranties and covenants herein contained, JCPR agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from JCPR the respective principal amounts of the Certificates set
forth in Schedule A hereto opposite the names of the Underwriters. Such
Certificates are to be purchased by the Underwriters at a purchase price of
99.093406% of the principal amount thereof plus accrued interest, if any, from
November 25, 1998.
JCPR will deliver the Certificates to the Representative against payment
of the purchase price by wire transfer of immediately available funds to the
4
account of JCPR at the office of JCPenney in Plano, Texas at 10:00 A.M., C.S.T.,
on November 25, 1998 or at such other time not later than seven full business
days thereafter as the Representative and JCPR determine, such time being herein
referred to as the "Closing Date." The Certificates so to be delivered shall be
represented by one or more definitive certificates registered in the name of
Cede & Co., as nominee for The Depository Trust Company. JCPR shall make such
definitive certificates representing the Certificates available for inspection
by the Underwriters at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that after the Registration
Statement becomes effective the Underwriters propose to offer the Certificates
for sale to the public (which may include selected dealers) as set forth in the
Prospectus. The Underwriters may offer the Certificates to certain dealers at
the price to public of 99.418406% of the principal amount thereof less
concessions not in excess of .200% of the principal amount thereof. The
Underwriters may allow, and such dealers may reallow, concessions not in excess
of .125% of the principal amount of the Certificates.
5. Covenants of JCPR and JCPenney. JCPR, and where specified, JCPenney,
covenant with the Underwriters, with respect to the Certificates, that:
(a) JCPR will file the Prospectus with the Commission pursuant to Rule
424(b) within the time periods specified by Rule 424(b) and Rule 430A; JCPR will
advise you at least 24 hours prior to the filing of any amendment of or
supplement to the Registration Statement or the Prospectus; and JCPR will advise
you promptly of the effectiveness of any such amendment of or supplement to the
Registration Statement or Prospectus, of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information, of the receipt by JCPR of any notification with
respect to the suspension of qualification of the Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and of the institution by the Commission of any stop order proceeding in respect
of the Registration Statement, and will use their best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(b) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements
5
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 Registration
Statement or the Prospectus to comply with the Act, JCPR promptly will prepare
and file with the Commission (subject to the provisions of paragraph (a) of this
Section) an amendment or supplement which will correct such statement or
omission or effect such compliance.
(c) Not later than 90 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Trust during which the Closing
Date occurs, JCPR will cause the Trust to make generally available to the
Certificateholders an earnings statement or statements of the Trust covering
such 12-month period which will satisfy the provisions of Section 11(a) of the
Act.
(d) JCPR will furnish to you copies of the Registration Statement (one
of which, to be delivered to your counsel, will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as you reasonably request. JCPR will pay the expenses of
printing or other production of all documents relating to the offering.
(e) JCPR will use its best efforts to arrange for the qualification of
the Certificates for sale and the determination of the Certificates for sale and
the determination of their eligibility for investment under the laws of such
jurisdictions as the Representative reasonably designates and will diligently
endeavor to continue such qualifications in effect so long as required for the
distribution of the Certificates; provided, however, that JCPR shall not be
required to register or qualify, or to maintain qualification, as a foreign
corporation nor, except as to matters and transactions relating to the offer or
sale of the Certificates, consent to service of process generally in any state.
(f) For a period from the date of this Agreement until the retirement of
the Certificates, (i) JCPenney will furnish to you copies of each certificate
and the annual statements of compliance relating to the Certificates delivered
to the Trustee pursuant to Article III of the Pooling and Servicing Agreement
and the annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to Article III of the Pooling and Servicing
Agreement, by first-class mail as soon as practicable after such statements and
reports are furnished to the Trustee and (ii) on each Determination Date or as
soon thereafter as practicable,
6
JCPenney shall give notice substantially in the form of Schedule B hereto by
telex or telecopy to you of the Pool Factor as of the related Record Date.
(g) So long as any of the Certificates are outstanding, JCPR or
JCPenney, as the case may be, will furnish you by first-class mail as soon as
practicable, all documents (A) distributed, or caused to be distributed, by JCPR
or JCPenney to the Certificateholders, (B) filed, or caused to be filed, by JCPR
with the Commission pursuant to the Exchange Act, any order of the Commission
thereunder or pursuant to a "no-action" letter from the staff of the Commission
and (C) from time to time in the possession of JCPR or JCPenney concerning the
Trust as you may reasonably request.
(h) JCPR 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)
incurred by the Underwriters in connection with qualification of the
Certificates for sale and determination of their eligibility for investment
under the laws of such jurisdictions as the Representative reasonably designates
and the printing and memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Certificates, and for
reasonable expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(i) To the extent, if any, that the rating provided with respect to the
Certificates by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and/or Standard &
Poor's Ratings Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
("Standard & Poor's") is conditional upon the furnishing of documents or the
taking of any other action by JCPR, agreed upon on or prior to the Closing Date,
JCPR shall furnish such documents and take any such other action.
(j) JCPR will not offer, sell, contract to sell or otherwise dispose of
any additional Series other than the Series represented by the Certificates, the
Class B Investor Interest and the Class C Investor Interest without the prior
written consent of the Underwriters, which shall not be unreasonably withheld,
for a period of 15 days from the date of this Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Certificates will be subject to the
accuracy of the representations and warranties on the part of JCPR herein, to
the accuracy
7
of the statements of officers of JCPR made pursuant to the provisions hereof, to
the performance by JCPR and JCPenney of their obligations hereunder and to the
following additional conditions precedent:
(a) 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 JCPR or the
Underwriters, shall be contemplated by the Commission.
(b) 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
JCPR, JCPenney or JCPenney Card Bank, National Association ("JCP Card Bank")
which, in your reasonable judgment, materially impairs the investment quality of
the Certificates; (ii) any downgrading in the rating of the debt securities of
JCPR or JCPenney to below investment grade by Moody's or Standard & Poor's;
(iii) any suspension or limitation of trading in securities generally on the New
York Stock Exchange, excluding any such suspension or limitation of trading
resulting from the application of the "circuit breaker" rules of the New York
Stock Exchange unless such rules shall have been applied on more than one day
subsequent to the execution and delivery of this Agreement, or any setting of
minimum prices for trading on such exchange; (iv) any banking moratorium
declared by Federal, New York or Delaware authorities; or (v) the United States
shall be engaged in hostilities which have resulted in a declaration of a
national emergency or a declaration of war by Congress; any of which events set
forth in clauses (i) through (v), in your reasonable judgment, renders it
inadvisable to proceed with the public offering or the delivery of the
Certificates.
(c) The Underwriters shall have received an opinion of ▇. ▇. ▇▇▇▇▇▇,
General Counsel for JCPR and JCPenney, addressed to the Underwriters, dated the
Closing Date and satisfactory in form to the Representative and counsel for the
Underwriters to the effect that:
(i) JCPR has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware, has corporate power
and authority to own its property, conduct its business as described in the
Prospectus, enter into and perform its
8
obligations under this Agreement, the Receivables Purchase Agreement and
the Pooling and Servicing Agreement and execute the Certificates and is
duly qualified as a foreign corporation and in good standing in Texas,
which is the only state in which JCPR currently conducts business. JCPR has
full power and authority to authorize, issue and sell the Certificates as
contemplated by this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by JCPenney and JCPR and, assuming the due authorization,
execution and delivery thereof by the Underwriters, constitutes a legal,
valid and binding obligation of each of JCPenney and JCPR enforceable
against each of JCPenney and JCPR in accordance with its terms (subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles); provided, however, that such
counsel need not express any opinion concerning the enforceability of the
provisions in Section 7 of this Agreement concerning indemnification or
contribution in respect of violations of Federal or state securities laws.
(iii) The Receivables Purchase Agreement has been duly authorized,
executed and delivered by JCPR and JCPenney and constitutes a legal, valid
and binding obligation of each of JCPenney and JCPR enforceable against
each of JCPenney and JCPR in accordance with its terms (subject, as to
enforcement of remedies, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles).
(iv) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by JCPR and JCPenney and, assuming that such
agreement was duly authorized, executed and delivered by the Trustee,
constitutes a legal, valid and binding obligation of each of JCPenney and
JCPR enforceable against each of JCPenney and JCPR in accordance with its
terms (subject, as to enforcement of remedies, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles).
9
(v) The certificates representing the Certificates have been duly
authorized and executed, and assuming due authentication thereof by the
Trustee in accordance with the Pooling and Servicing Agreement, were
validly issued to JCPR by the Trust, are entitled to the benefits of the
Pooling and Servicing Agreement and are enforceable in accordance with
their terms (subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles). When such Certificates are delivered to the Underwriters by
JCPR against payment therefor in accordance with this Agreement, the
Underwriters will have, assuming that the Underwriters have no notice of
any adverse claim, valid and marketable title thereto, free and clear of
any liens, security interests or encumbrances.
(vi) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required in connection
with the execution, delivery and performance by JCPR of this Agreement, the
Pooling and Servicing Agreement or the Receivables Purchase Agreement, or
in connection with the issuance by the Trust or sale by JCPR of the
Certificates, except such as have been obtained under the Act and such as
may be required under state blue sky laws and the filing of Uniform
Commercial Code financing statements.
(vii) The issue and sale of the Certificates and the execution and
delivery of this Agreement, the Receivables Purchase Agreement and the
Pooling and Servicing Agreement, and the consummation of the transactions
contemplated hereby and thereby and the fulfillment of the terms hereof and
thereof, will not result in a breach or violation of, or constitute a
default under, any statute, rule, regulation or order of any governmental
agency or body or any court having jurisdiction over JCPR or the Trust or
any of their property, the Certificate of Incorporation, as amended, or
Bylaws of JCPR or to the best of such counsel's knowledge, any agreement or
instrument to which JCPR is a party or by which the Trust or JCPR is bound
or to which any of the property of JCPR is subject.
10
(viii) The Certificates, the Receivables Purchase Agreement and the
Pooling and Servicing Agreement conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not, and the
issuance and sale of the Certificates in the manner contemplated by the
Pooling and Servicing Agreement and the Underwriting Agreement will not
cause the Trust to be, required to be registered under the Investment
Company Act.
(x) The Registration Statement has become effective under the
Act, the filing of the Prospectus pursuant to Rule 424(b) thereunder has
been made and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness thereof has been issued and no proceedings for
that purpose have been instituted or threatened under the Act.
(xi) The Registration Statement and the Prospectus comply as to
form in all material respects with the requirements of the Act and the
Rules and Regulations (except as to the financial data contained therein,
as to which such counsel need not express any opinion).
(xii) Such counsel does not know of any pending or threatened
action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator against JCPR or the Trust which would
be required to be disclosed in the Registration Statement or Prospectus and
which is not disclosed therein.
(xiii) Such counsel does not know of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed.
In passing on the Registration Statement and the Prospectus, such
counsel may assume the correctness and completeness of the statements made or
included therein by JCPR and may take no responsibility therefor except as
specified
11
in paragraph (viii) above and except insofar as such statements relate to such
counsel. However, in the course of the preparation by JCPR of the Registration
Statement, such opinion shall state that such counsel had conferences with
certain officers of JCPR and such counsel's discussions in the above-mentioned
conferences did not disclose to such counsel any information that gave such
counsel reason to believe that the Registration Statement, 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 contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (except in each case as to the financial data included
therein, as to which such counsel need not express any opinion).
In rendering such opinion counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of New York,
the State of Delaware (as to its General Corporation Law) and the United States,
to the extent deemed proper and stated in such opinion, upon the opinion of
other counsel of good standing believed by such counsel to be reliable and
acceptable to you and your counsel, and (B) as to matters of fact, to the extent
deemed proper and as stated therein, on certificates of responsible officers of
the Trust, JCPR, JCPenney and public officials. References to the Prospectus in
this paragraph (c) include any supplements thereto.
(d) On or prior to the date of this Agreement, KPMG Peat Marwick,
independent certified public accountants for JCPenney and JCPR, shall have
furnished to the Underwriters a letter or letters, dated as of the date of this
Agreement, in form and substance satisfactory to the Representative and counsel
for the Underwriters, (i) confirming that they are certified independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations, (ii) stating in effect that they have performed certain specified
procedures as a result of which they have determined that certain information of
an accounting, financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general accounting records
of the Trust, JCPenney and JCPR) set forth in the Registration Statement and the
Prospectus (and any supplement thereto), including the information set forth
under the captions "JCPENNEY'S CREDIT CARD BUSINESS", "THE ACCOUNTS", "MATURITY
ASSUMPTIONS" AND "RECEIVABLE YIELD CONSIDERATIONS" in the Prospectus, agrees
with the accounting records of the Trust, JCPenney and JCPR, excluding any
questions of legal interpretation, and (iii)(a) in their opinion, the
consolidated
12
financial statements and schedules covered by their opinion therein comply in
form in all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder and (b) on the basis of procedures (but not an
examination made in accordance with generally accepted auditing standards)
consisting of a reading of the latest unaudited consolidated condensed financial
statements of JCPenney and its consolidated subsidiaries and certain other
specified means, nothing has come to their attention that would cause them to
believe that such unaudited consolidated condensed financial statements (A) do
not comply in form in all material respects with the applicable accounting
requirements of the Exchange Act or (B) are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements and certain other matters.
(e) The Underwriters shall have received from KPMG Peat Marwick, a
letter, dated as of the Closing Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters, to the effect that confirms the
items stated by them in clauses (i) and (iii) of paragraph (d) of this Section
6.
(f) The Underwriters shall receive evidence satisfactory to the
Representative and counsel for the Underwriters that, on or before the Closing
Date, UCC-1 financing statements have been or are being filed in the offices of
the Secretaries of State of Texas and such other jurisdictions as its counsel
deems appropriate reflecting the interest of the Trust in the Receivables now
existing and hereafter created in the Accounts, all monies due and to become due
with respect thereto, all proceeds thereof and Insurance Proceeds relating
thereto, and all of JCPR's rights, remedies, powers and privileges with respect
to such Receivables under the Receivables Purchase Agreement.
(g) The Underwriters shall have received an opinion from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, stating in effect that the Certificates would be
treated as debt of JCPR for Federal income tax purposes.
(h) The Underwriters shall have received from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.C., special counsel to JCPR and JCPenney, a favorable opinion, dated
the Closing Date and satisfactory in form to the Representative and counsel for
the Underwriters to the effect that:
13
(i) If the Pooling and Servicing Agreement and the Receivables
Purchase Agreement constitute a valid transfer of all right, title and
interest of JCPR in, to and under the Receivables existing at the Closing
Date and thereafter created in the Accounts designated therein and, when
added pursuant to Section 2.6(c) of the Pooling and Servicing Agreement and
designated in a transfer agreement in the form of Exhibit E to the Pooling
and Servicing Agreement, the Additional Accounts designated therein, all
monies due or to become due with respect thereto, all proceeds thereof and
Insurance Proceeds relating thereto and all of JCPR's rights, remedies,
powers and privileges with respect to such Receivables under the
Receivables Purchase Agreement, then, assuming the accuracy of the Uniform
Commercial Code searches and the officer's certificates of JCPR and
JCPenney, the Trustee will acquire all right, title and interest of JCPR in
each such item free and clear of any Lien or interest of any person
claiming through or under JCPR except for (i) Liens permitted under Section
2.5(b) of the Pooling and Servicing Agreement and (ii) the rights of others
as specified in paragraph (ii) below.
(ii) If the Pooling and Servicing Agreement and the Receivables
Purchase Agreement do not constitute a valid transfer of all right, title
and interest of JCPR in, to and under the Receivables existing at the
Closing Date and thereafter created in the Accounts designated therein and,
when added pursuant to Section 2.6(c) of the Pooling and Servicing
Agreement and designated in a transfer agreement in the form of Exhibit E
to the Pooling and Servicing Agreement, the Additional Accounts designated
therein, all monies due or to become due with respect thereto, all proceeds
thereof and Insurance Proceeds relating thereto and all of JCPR's rights,
remedies, powers and privileges with respect to such Receivables under the
Receivables Purchase Agreement, then the Pooling and Servicing Agreement
and the Receivables Purchase Agreement create a valid security interest in
favor of the Trustee, for the benefit of the holders of the Certificates,
in each such item and, based upon the UCC-1 financing statements having
been filed, assuming the due and proper filing thereof in the filing
offices specified in such opinion, and assuming the accuracy and
completeness of the Uniform Commercial Code searches and the officer's
certificates of JCPR and JCPenney, create a first priority perfected
security interest in each such item, except Liens permitted
14
by Section 2.5(b) of the Pooling and Servicing Agreement. Such counsel need
not express any opinion, however, as to JCPenney's, JCPR's or the Trustee's
title to the Receivables or with respect to the following possible
interests or rights in the Receivables or limitations on such security
interest: (a) security interests for the perfection of which no filing is
required under Section 9.302(a) of the Uniform Commercial Code; (b)
security interests afforded temporary perfection status without filing
under Section 9.312 of the Uniform Commercial Code; (c) the perfection of
security interests in proceeds to the extent that the same ceases in
accordance with or under the circumstances specified in Section 9.306 of
the Uniform Commercial Code; (d) security interests, liens, transactions or
rights not governed by the Uniform Commercial Code, or, absent compliance
with the Federal Assignment of Claims Act, in respect of Receivables
arising under contracts with the United States government; (e) the priority
of any security interest as against any claim or lien in favor of the
United States government or any agency or instrumentality thereof
(including, without limitation, Federal tax liens or liens under the
Employee Retirement Income Security Act of 1974, as amended); (f) rights
and interests of any lien creditors which have instituted proceedings for
attachment, execution or other action against the Receivables in the
Accounts prior to the Closing Date; (g) any prior security interests in the
Receivables in the Accounts which have been improperly filed; and (h) in
the event of the filing of a bankruptcy petition with respect to JCPR, any
liens on after-acquired property of JCPR created by the Pooling and
Servicing Agreement will be subject to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bankruptcy Code.
(iii) Except for the filing of continuation statements pursuant to
Section 9.403 of the Uniform Commercial Code with respect to the UCC-1
financing statements, no additional Uniform Commercial Code filing is
necessary to maintain the perfection of the security interest of the
Trustee in all right, title and interest of JCPR in, to, and under the
Receivables existing at the Closing Date and thereafter created in the
Accounts designated in the Pooling and Servicing Agreement and, when added
pursuant to Section 2.6(c) of the Pooling and Servicing Agreement and
designated in a transfer agreement in the form of Exhibit E to the Pooling
and Servicing Agreement, the Additional Accounts designated therein, all
monies
15
due or to become due with respect thereto, all proceeds thereof (including
Insurance Proceeds relating thereto) and all of JCPR's rights, remedies,
powers and privileges with respect to such Receivables under the
Receivables Purchase Agreement against third parties.
In passing on the Registration Statement and the Prospectus, such
counsel may assume the correctness and completeness of the statements made or
included therein by JCPR and may take no responsibility therefor except insofar
as such statements relate to such counsel.
Such counsel shall deliver, or cause to be delivered, to the
Underwriters such additional opinions addressing the transfers or grantings of
security interests by JCPR to the Trustee effected by the Pooling and Servicing
Agreement as may be required by each Rating Agency rating the Certificates.
In rendering such opinion counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Texas, the
State of Delaware (as to its General Corporation Law) and the United States, to
the extent deemed proper and stated in such opinion, upon the opinion of other
counsel of good standing believed by such counsel to be reliable and acceptable
to you and your counsel, and (B) as to matters of fact, to the extent deemed
proper and as stated therein, on certificates of responsible officers of the
Trust, JCPR, JCPenney and public officials. References to the Prospectus in
this paragraph (h) include any supplements thereto.
(i) The Underwriters shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the organization of JCPR, the validity
of the Certificates, the Registration Statement, the Prospectus and other
related matters as you may require, and JCPR shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(j) The Underwriters shall have received a certificate, dated the
Closing Date, of the President and a principal financial or accounting officer
of JCPR in which each such officer, to the best of his or her knowledge after
reasonable investigation, shall state that the representations and warranties of
JCPR in this Agreement are true and correct in all material respects on and as
of the Closing Date, that JCPR 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, the representa-
16
tions and warranties of JCPR in the Pooling and Servicing Agreement are true and
correct as of the dates specified in the Pooling and Servicing Agreement, that
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 and that the Prospectus has been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the Rules and Regulations.
(k) The Underwriters shall have received an opinion of ▇. ▇. ▇▇▇▇▇▇,
Executive Vice President, Secretary and General Counsel of JCPenney, addressed
to the Underwriter, dated the Closing Date and satisfactory in form to the
Representative and counsel for the Underwriters to the effect that:
(i) JCPenney has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware and is duly
qualified as a foreign corporation and in good standing in each
jurisdiction in which the performance of its obligations under this
Agreement, the Receivables Purchase Agreement and the Pooling and Servicing
Agreement would require such qualification.
(ii) This Agreement, the Receivables Purchase Agreement and the
Pooling and Servicing Agreement have been duly authorized, executed and
delivered by JCPenney.
(iii) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required in connection
with the execution, delivery and performance by JCPenney of this Agreement,
the Pooling and Servicing Agreement or the Receivables Purchase Agreement,
except such as may be required under the Act or state blue sky laws.
(iv) The execution and delivery of this Agreement, the Receivables
Purchase Agreement and the Pooling and Servicing Agreement, and the
consummation of the transactions contemplated thereby and the fulfillment
by JCPenney of the terms thereof, will not result in a breach or violation
of, or constitute a default under, any statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction over
JCPenney or any of its property,
17
the Restated Certificate of Incorporation or Bylaws of JCPenney or any
material agreement or instrument to which JCPenney is a party or by which
JCPenney is bound or to which any of the property of JCPenney is subject.
(l) The Underwriters shall have received an opinion of Kramer, Levin,
Naftalis & ▇▇▇▇▇▇▇ LLP, counsel to the Trustee, addressed to the Underwriters,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters to the effect that:
(i) The Trustee is a banking corporation validly existing and in
good standing under the laws of the State of New York with full power and
authority (corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee, and, assuming that such agreement is
a legally effective and enforceable obligation of each of the other parties
thereto, constitutes the legal, valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with its terms, except as the
enforceability thereof may be (a) limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws of general
applicability affecting the enforceability of creditors' rights generally
and (b) subject to general principles of equity (regardless of whether
considered in proceedings in equity or at law) as well as concepts of
reasonableness, good faith and fair dealing.
(iii) The certificates representing the Certificates have been duly
authenticated by the Trustee under the Pooling and Servicing Agreement.
(iv) Neither the execution nor the delivery by the Trustee of the
Pooling and Servicing Agreement nor the consummation of any of the
transactions by the Trustee contemplated under any provision thereof
requires the consent or approval of, the giving of notice to, or the
registration with, or the taking of any other action
18
with respect to, any governmental authority or agency under any existing
Federal or New York law governing the banking or trust powers of the
Trustee.
(m) The Underwriter shall have received evidence satisfactory to the
Underwriter that the Certificates shall be rated AAA by Standard & Poor's and/or
Aaa by ▇▇▇▇▇'▇.
7. Indemnification and Contribution.
(a) JCPR and JCPenney will jointly and severally indemnify and hold
harmless each Underwriter and each person, if any, who controls such Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) JCPR and JCPenney 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 made in any of such
documents in reliance upon and in conformity with written information furnished
to JCPR by any Underwriter for use therein and (ii) the indemnity agreements
contained in this paragraph (a) with respect to any such related preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) if at or prior to the written
confirmation of the sale of the Certificates to any person asserting any such
losses, claims, damages, liabilities or expenses a copy of the Prospectus (or
the Prospectus as so amended or supplemented) was not sent or delivered to such
person and the untrue statement of a material fact contained in such related
preliminary prospectus was corrected in the Prospectus (or the Prospectus as so
amended or supplemented). This indemnity
19
agreement will be in addition to any liability which JCPR or JCPenney may
otherwise have.
(b) Each Underwriter will indemnify and hold harmless JCPR and JCPenney,
each of their directors, each of their officers who have signed the Registration
Statement and each person, if any, who controls JCPR or JCPenney within the
meaning of the Act, against any losses, claims, damages or liabilities to which
JCPR or JCPenney or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to JCPR by such
Underwriter for use therein; and will reimburse any legal or other expenses
reasonably incurred by JCPR or JCPenney or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which such Underwriter may otherwise have.
(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 this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. 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 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
20
party in connection with the defense thereof other than reasonable costs of
investigation. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there has been a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution for liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by each party from the offering of
the Certificates (taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. JCPR, JCPenney and
the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. Neither an
Underwriter nor any person controlling such Underwriter shall be obligated to
make contribution hereunder which in the aggregate exceeds the total public
offering price of the Certificates purchased by such Underwriter under this
Agreement, less the aggregate amount of any damages which such Underwriter and
its controlling persons have otherwise been required to pay in respect of the
same claim or any substantially similar claim.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Certificates hereunder and the aggregate principal
amount of the Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Certificates, the Representative may make arrangements satisfactory to
JCPR for the purchase of such Certificates by other persons, including any of
the Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Certificates which such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Certificates with
respect to which such default or defaults occur is more than 10% of the total
principal amount of the Certificates and
21
arrangements satisfactory to the Representative and JCPR for the purchase of
such Certificates by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or JCPR, except as provided in Section 9 hereof. As used
in this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
JCPR, JCPenney and 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 any Underwriter,
JCPR or JCPenney or any of their respective officers or directors or any
controlling person, and will survive delivery of and payment for the
Certificates. If for any reason the purchase of the Certificates by the
Underwriters pursuant to this Agreement is not consummated, JCPR shall remain
responsible for the expenses to be paid or reimbursed by JCPR pursuant to
Section 5 and the respective obligations of JCPR, JCPenney and the Underwriters
pursuant to Section 7 shall remain in effect. If for any reason the purchase of
the Certificates by the Underwriters is not consummated other than solely
because of the occurrence of any event specified in clauses (iii), (iv) or (v)
of Section 6(b), JCPR and JCPenney will reimburse the Underwriters for all out-
of-pocket expenses (including fees and disbursement of counsel) reasonably
incurred by them in connection with the offering of the Certificates.
10. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
c/o Credit Suisse First Boston Corporation, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and if sent to JCPR or JCPenney as the
case may be will be mailed, delivered or telegraphed and confirmed to JCPR, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Mail Stop 1318, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President and to
JCPenney, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
11. Successors. This Underwriting Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
22
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
23
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 become a binding agreement among JCPR, JCPenney and the Underwriters in
accordance with its terms.
Very truly yours,
JCP RECEIVABLES, INC.
By
-------------------------------------
Name: C. A. Walther
Title: President
▇. ▇. ▇▇▇▇▇▇ COMPANY, INC.
By
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Underwriters
named in Schedule A hereto
By
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
SCHEDULE A
UNDERWRITERS
$650,000,000 aggregate principal amount of 5.50%
Class A Asset Backed Certificates, Series E
Underwriter Principal Amount
----------- ----------------
Credit Suisse First Boston Corporation................... $455,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. ................................ 97,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated............................................ 97,500 000
SCHEDULE B
FORM OF SERVICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Underwriters
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Pooling and Servicing Agreement dated as of September 5, 1988, as
amended as of October 15, 1997, as supplemented by the Series E
Supplement, dated as of November 25, 1998 (together, the "Pooling and
Servicing Agreement") among JCP Receivables, Inc., ▇. ▇. Penney
Company, Inc. and The Fuji Bank and Trust Company, as Trustee
---------------------------------------------------------------------
Determination Date to which this Certificate
relates: __________, ____
Applicable Record Date: __________, ____
1. The undersigned Servicing Officer does hereby certify that the Pool
Factor is ____________________________.
2. Capitalized terms used in this Certificate shall have the same
meanings as in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the above-referenced
Determination Date.
▇. ▇. ▇▇▇▇▇▇ COMPANY, INC.,
as Servicer
By
-------------------------------------
Servicing Officer