EXHIBIT 1.1 - FORM OF UNDERWRITING AGREEMENT
DC FUNDING INTERNATIONAL, INC.
Transferor
FNANB CREDIT CARD MASTER NOTE TRUST
July [__], 2002
UNDERWRITING AGREEMENT
(Standard Terms)
[_____]
(as Representative of the several Underwriters
listed in Schedule 1 to the Terms Agreement)
[_____]
[_____]
[_____]
Ladies and Gentlemen:
1. Introductory. The FNANB Credit Card Master Note Trust (the "Note
Trust"), issues, from time to time, asset backed securities (the "Notes") in one
or more series (each, a "Series"). The property of the Trust consists of a
collateral certificate representing an interest in the FNANB Credit Card Master
Trust (the "Certificate Trust"). The property of the Certificate Trust includes
receivables (the "Receivables") generated from time to time in a portfolio of
credit card accounts (the "Accounts"), collections thereon and certain related
property (collectively, the "Trust Property") conveyed to the Certificate Trust
by DC Funding International, Inc. (the "Transferor"). The Notes to which this
agreement applies will be issued pursuant to the Master Indenture, dated as of
July [__], 2002 (as amended, supplemented or otherwise modified from time to
time, the "Master Indenture"), between the Note Trust and JPMorgan Chase Bank,
as indenture trustee (the "Indenture Trustee"), as supplemented by an indenture
supplement relating to each series of such Notes (each, an "Indenture
Supplement" and together with the Master Indenture, the "Indenture"). To the
extent not defined herein, capitalized terms used herein shall have the meanings
specified in the Master Indenture and the applicable Indenture Supplement.
Each offering of the Notes to which this Agreement applies made pursuant to
the Registration Statement (as herein defined) will be made through you or
through you and other
underwriters for whom you are acting as representative or through an
underwriting syndicate managed by you. Whenever the Transferor determines to
make such an offering of Notes to which this Agreement shall apply, it will
enter into an agreement (a "Terms Agreement") providing for the sale of such
Notes to, and the purchase and offering thereof by, (i) you, (ii) you and such
other underwriters (such other underwriters to be approved by the Transferor,
which approval shall not be unreasonably withheld) who execute such Terms
Agreement and agree thereby to become obligated to purchase Notes from the
Transferor or (iii) you and such other underwriters, if any, selected by you
(such other underwriters to be approved by the Transferor, which approval shall
not be unreasonably withheld) as have authorized you to enter into such Terms
Agreement on their behalf (in each case, the "Underwriters"). (It is understood
that the Transferor shall not be obligated to sell any particular Series or
Class of Notes offered pursuant to the Registration Statement to you or you and
other Underwriters.) Execution of a Terms Agreement by the Transferor shall be
conclusive evidence of the Transferor's approval of all Underwriters named
therein. Such Terms Agreement shall specify the initial principal amount of the
Notes of each Series and Class of the Notes to be issued and their terms not
otherwise specified in this Agreement, the price at which such Notes are to be
purchased by the Underwriters from the Transferor, the aggregate amount of Notes
to be purchased by you and any other Underwriter that is a party to such Terms
Agreement and the initial public offering price or the method by which the price
at which such Notes are to be sold will be determined. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written communication between or among
the Underwriters and the Transferor. Each such offering of the Notes for which a
Terms Agreement is entered into will be governed by this Agreement, as
supplemented by such Terms Agreement, and this Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon the Underwriters
participating in the offering of such Notes.
2. Representations and Warranties of the Transferor. The Transferor
represents and warrants to you as of the date hereof and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) a registration statement on Form S-3 (having the registration number
stated in the applicable Terms Agreement), including a prospectus and such
amendments thereto as may have been required to the date hereof, relating
to the Notes and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been
filed with the Securities and Exchange Commission (the "Commission") (which
may have included one or more preliminary prospectuses and prospectus
supplements (each, a "Preliminary Prospectus") meeting the requirements of
Rule 430 of the Act), and such registration statement, as amended, has
become effective; such registration statement, as amended, and the
prospectus relating to the sale of the Notes offered thereby by the
Transferor constituting a part thereof, as from time to time amended or
supplemented (including any prospectus filed with the Commission pursuant
to Rule 424(b) of the rules and regulations of the Commission (the "Rules
and Regulations") under the Act), are respectively referred to herein as
the "Registration Statement" and the "Prospectus"; provided, however, that
a supplement to the Prospectus prepared pursuant to Section 5(a) hereof
(each, a "Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of the Notes to which it
relates; and the conditions to the use of a registration
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statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Act,
have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the
Registration Statement and the Prospectus, except with respect to any
modification to which you have agreed in writing, shall be in all
substantive respects in the form furnished to you prior to such date or, to
the extent not completed on such date, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus that has previously been furnished to you) as
the Transferor has advised you, prior to such time will be included or made
therein;
(c) on the effective date of the Registration Statement, the
Registration Statement and the Prospectus complied in all material respects
with the applicable requirements of the Act and the Rules and Regulations,
and did not include any untrue statement of a material fact or, in the case
of the Registration Statement, omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and on the date
of each Terms Agreement and on each Delivery Date (as defined in Section 3
hereof), the Registration Statement and the Prospectus will comply in all
material respects with the applicable requirements of the Act and the Rules
and Regulations, and neither of such documents included or will 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; provided, however, that the foregoing does not apply to
information contained in or omitted from either of the documents based upon
written information furnished to the Transferor by any Underwriter
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full power, authority and legal right to own its properties and conduct its
business as described in the Prospectus, is duly qualified to do business
and is in good standing (or is exempt from such requirements), and has
obtained all necessary licenses and approvals (except with respect to the
state securities or Blue Sky laws of various jurisdictions) in each
jurisdiction in which failure to so qualify or obtain such licenses and
approvals would have a material adverse effect on the interests of
Noteholders under the Master Indenture or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full power, authority and legal right to own its properties and conduct its
business as described in the Prospectus, is duly qualified to do business
and is in good standing (or is exempt from such requirements), and has
obtained all necessary licenses and approvals (except with respect to the
state securities or Blue Sky laws of various jurisdictions) in each
jurisdiction in which failure to so qualify or obtain such licenses and
approvals would have a material
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adverse effect on the interests of Noteholders under the Master Indenture
or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms
Agreement, will have been duly and validly authorized and, when such Notes
are duly and validly executed by or on behalf of the Note Trust,
authenticated by the Indenture Trustee and delivered in accordance with the
Master Indenture and the applicable Indenture Supplement and delivered and
paid for as provided herein, will be a legal, valid and binding obligation
of the Note Trust, enforceable against the Note Trust in accordance with
its terms, and validly issued and outstanding and entitled to the benefits
and security afforded by the Master Indenture and the applicable Indenture
Supplement;
(g) the execution, delivery and performance by the Transferor of this
Agreement, each applicable Terms Agreement, any applicable agreement
relating to an Enhancement (an "Enhancement Agreement"), the Pooling and
Servicing Agreement, the Collateral Series Supplement, the Transfer and
Servicing Agreement and the Receivables Purchase Agreement, dated as of
December 31, 2001 between FNANB, as seller, and the Transferor, as
purchaser (as amended, supplemented or otherwise modified from time to
time, the "Purchase Agreement"), and the consummation by the Transferor of
the transactions provided for herein and therein, have been, or will have
been, duly authorized by the Transferor by all necessary action on the part
of the Transferor; and neither the execution and delivery by the Transferor
of such instruments, nor the performance by the Transferor of the
transactions herein or therein contemplated, nor the compliance by the
Transferor with the provisions hereof or thereof, will (i) conflict with or
result in a breach of any of the terms and provisions of, or constitute a
default under, any of the provisions of the amended and restated
certificate of incorporation or by-laws of the Transferor, or (ii) conflict
with any of the provisions of any law, government rule, regulation,
judgment, decree or order binding on the Transferor or its properties or
(iii) conflict with any of the provisions of any material indenture,
mortgage, contract or other instrument to which the Transferor is a party
or by which it is bound or (iv) result in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling
and Servicing Agreement, the Collateral Series Supplement, the Transfer and
Servicing Agreement, the Purchase Agreement and any applicable Enhancement
Agreement will constitute a legal, valid and binding agreement of the
Transferor, enforceable against the Transferor in accordance with its
terms, except to the extent that the enforceability thereof may be subject
to bankruptcy, insolvency, reorganization, receivership, conservatorship,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights in general as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Transferor or in the event of any moratorium or similar
occurrence affecting the Transferor and to general principles of equity;
(i) all approvals, authorizations, consents, orders or other actions
of any person, corporation or other organization, or of any court,
governmental agency or body
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or official (except with respect to the state securities or Blue Sky laws
of various jurisdictions), required in connection with the valid and proper
authorization, issuance and sale of the Notes of a Series pursuant to this
Agreement, the applicable Terms Agreement, the Indenture and the applicable
Indenture Supplement, have been or will be taken or obtained on or prior to
the applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the
applicable Terms Agreement will have been duly executed and delivered by
the Transferor;
(k) except as set forth in or contemplated in the Registration
Statement and the Prospectus, there has been no material adverse change in
the condition (financial or otherwise) of the Transferor since the date of
the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in connection with
the execution, delivery and performance by the Transferor of this
Agreement, the applicable Terms Agreement, the Indenture, the applicable
Indenture Supplement, the Pooling and Servicing Agreement, the Collateral
Series Supplement, the Transfer and Servicing Agreement, the Purchase
Agreement, any applicable Enhancement Agreement and the Notes of the
related Series shall have been paid or will be paid by or on behalf of the
Transferor at or prior to the applicable Delivery Date to the extent then
due; and
(m) the Notes of the related Series, the Indenture, the applicable
Indenture Supplement, the Pooling and Servicing Agreement, the Collateral
Series Supplement, the Transfer and Servicing Agreement, the Purchase
Agreement and any applicable Enhancement Agreement conform in all material
respects to the description thereof in the Prospectus.
3. Purchase, Sale and Delivery of Notes. Delivery of and payment for the
Notes to which this Agreement applies will be made at the offices of
McGuireWoods LLP, One Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, or such other offices specified in the applicable Terms Agreement, at
such time as shall be specified in the applicable Terms Agreement, or at such
other time thereafter or other place as you and the Transferor shall agree upon,
each such time being therein referred to as a "Delivery Date". Delivery of such
Notes shall be made by the Transferor to the Underwriters against payment of the
purchase price specified in the applicable Terms Agreement in same day funds
wired to such bank as may be designated by the Transferor, or by such other
manner of payment as may be agreed upon by the Transferor and you. Unless
otherwise provided in the applicable Terms Agreement, payment for the Notes
shall be made against delivery through the facilities of The Depository Trust
Company ("DTC") of Book-Entry Notes to you for the respective accounts of the
several Underwriters. Unless otherwise provided in a Terms Agreement, the Notes
so to be delivered shall be global Notes registered in the name of Cede & Co.,
as nominee for DTC. The number and denomination of definitive Notes so delivered
shall be as specified by DTC. The definitive certificates for the Notes will be
made available for inspection and packaging by you at the offices of
McGuireWoods LLP, or such other offices specified in the applicable Terms
Agreement, not later than 1:00 P.M., New York City time, on the Business Day
prior to the Delivery Date.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes subject to this Agreement for sale to
the public as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby covenants and
agrees with you and the several Underwriters participating in the applicable
offering of the Notes that:
(a) immediately following the execution of each Terms Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount of
Notes covered thereby and the terms thereof not otherwise specified in the
Prospectus, the price at which such Notes are to be purchased by the
Underwriters from the Transferor, either the initial public offering price
or the method by which the price at which such Notes are to be sold will be
determined, the selling concessions and allowances, if any, and such other
information as the Transferor deems appropriate in connection with the
offering of such Notes, but the Transferor will not file any amendments to
the Registration Statement as in effect with respect to the Notes, or any
amendments or supplements to the Prospectus, unless it shall first have
delivered copies of such amendments or supplements to you, or if you shall
have reasonably objected thereto promptly after receipt thereof; the
Transferor will immediately advise you and your counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of any
order or communication suspending or preventing, or threatening to suspend
or prevent, the offer and sale of the Notes or of any proceedings or
examinations that may lead to such an order or communication, whether by or
of the Commission or any authority administering any state securities or
Blue Sky laws, as soon as practicable after the Transferor is advised
thereof, and will use every reasonable effort both to prevent the issuance
of any such order or communication 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 any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend or supplement the Prospectus to comply with the Act or the
Rules and Regulations, the Transferor will promptly prepare and (subject to
review and no reasonable objection by you as described in Section 5(a)
hereof) file with the Commission, at its own expense, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, within two Business Days thereafter,
furnish to you as many copies of the Prospectus as amended or supplemented
as you may reasonably request; provided, however, that your consent to any
amendment shall not constitute a waiver of any of the conditions of Section
6 hereof;
(c) the Transferor will make generally available to the holders of the
Notes (the "Noteholders") of the related Series (the Noteholders being the
applicable Clearing Agency in the case of Book-Entry Notes), in each case
as soon as practicable, a statement which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the Commission with respect to the
related Series of Notes;
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(d) the Transferor will furnish to each Underwriter copies of the
Registration Statement (at least one copy to be delivered to each
Underwriter will be signed and will include all documents and exhibits
thereto or incorporated by reference therein), 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;
(e) the Transferor will assist you in arranging for the qualification
of the Notes for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you designate and will
continue to assist you in maintaining such qualifications in effect so long
as required for the distribution and will file or cause to be filed such
statements and reports with respect to the distribution as may be required
by the laws of each jurisdiction in which the Notes have been qualified as
provided above; provided, however, that neither the Transferor nor the
Trust shall be required to qualify to do business in any jurisdiction where
it is now not qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is
now not subject to service of process;
(f) to the extent that any rating necessary to satisfy the condition
set forth in Section 6(c) hereof is conditioned upon the furnishing of
documents or the taking of other actions by the Transferor on or after the
Delivery Date, the Transferor shall furnish such documents and take such
other action;
(g) except as otherwise specified in the related Terms Agreement, the
Transferor will pay all expenses incident to the performance of its
obligations under this Agreement and the related Terms Agreement and will
reimburse the Underwriters for any expenses reasonably incurred by them in
connection with qualification of the related Series of Notes and
determination of their eligibility for investment under the laws of such
jurisdictions as you may designate (including reasonable fees and
disbursements of the Underwriters' counsel) and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for
the rating of such Notes and, to the extent previously agreed upon with
you, for expenses incurred in distributing the Prospectus (including any
amendments and supplements thereto) to the Underwriters; and
(h) the Transferor will, for so long as Notes purchased pursuant
thereto remain outstanding, deliver or cause to be delivered to you (i)
copies of the annual servicer's certificate and the annual accountants'
reports delivered to the Indenture Trustee pursuant to the Pooling and
Servicing Agreement or the Transfer and Servicing Agreement, as applicable,
promptly after such reports are delivered to the Indenture Trustee, and
(ii) a copy of the Statement described in Section 5(c) hereof promptly
after such statements are delivered to Noteholders.
6. Conditions to the Obligations of the Underwriters. The obligations of
the several Underwriters named in any Terms Agreement to purchase and pay for
the Notes of the related Series subject to this Agreement and such Terms
Agreement will be subject to the accuracy of the representations and warranties
on the part of the Transferor herein as of the date hereof, the date of the
applicable Terms Agreement and the applicable Delivery Date, to the accuracy of
the statements of the Transferor made pursuant to the provisions thereof, to the
performance by the
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Transferor in all material respects of its obligations hereunder and to the
following additional conditions precedent:
(a) you shall have received a letter from KPMG LLP, or such other
independent public accountants specified in the applicable Terms Agreement,
dated the date of the applicable Terms Agreement, and, if requested by you,
a letter from such accountants, dated the Delivery Date, each in the forms
heretofore agreed to;
(b) all actions required to be taken and all filings required to be
made by the Transferor under the Act prior to the Delivery Date for the
Notes of such Series shall have been duly taken or made; and prior to the
applicable Delivery Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Transferor,
threatened by the Commission;
(c) unless otherwise specified in the applicable Terms Agreement, the
Notes subject to this Agreement and offered by means of the Registration
Statement shall be rated at the time of issuance in the highest rating
category by the nationally recognized statistical rating organization[s]
specified in the applicable Terms Agreement and shall not have been placed
on any credit watch with a negative implication for downgrade;
(d) you shall have received an opinion of McGuireWoods LLP (or such
other counsel as shall be specified in the applicable Terms Agreement),
counsel to the Transferor, dated the applicable Delivery Date,
substantially to the effect that:
(i) the Transferor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with full power and authority to own its assets and operate its
business as described in the Prospectus, and had at all relevant times
and now has, the power, authority and legal right to acquire and own
the Receivables transferred or proposed to be transferred to the Trust
as described in the Prospectus;
(ii) the Transferor has full power and authority to sign the
Registration Statement and to execute and deliver this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
Collateral Series Supplement, the Transfer and Servicing Agreement,
the Purchase Agreement and any applicable Enhancement Agreement and to
consummate the transactions contemplated herein and therein;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of the Transferor and
have been duly executed and delivered by the Transferor;
(iv) the Notes have been duly authorized by all necessary action
of the Transferor;
(v) this Agreement, the applicable Terms Agreement, the Pooling
and Servicing Agreement, the Collateral Series Supplement, the
Transfer and
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Servicing Agreement, the Purchase Agreement and any applicable Enhancement
Agreement each constitutes the legal, valid and binding agreement of the
Transferor, enforceable against the Transferor in accordance with its
terms, subject, as to enforcement, to (A) the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium,
conservatorship, receivership, or other similar laws of general
applicability relating to or affecting creditors' rights generally, (B) the
application of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and (C)
the enforceability under certain circumstances of provisions indemnifying a
party against liability where such indemnification is contrary to public
policy;
(vi) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated herein, in the applicable
Terms Agreement, the Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement, the Purchase Agreement
and any applicable Enhancement Agreement, except such as have been obtained
or made and such as may be required under state securities or Blue Sky
laws;
(vii) the execution, delivery and performance by the Transferor of
its obligations under this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Purchase Agreement, the transfer of
the Receivables to the Certificate Trust, the issuance and sale of the
Notes, and the consummation of any other of the transactions contemplated
herein, in the applicable Terms Agreement, the Indenture, the applicable
Indenture Supplement, the Pooling and Servicing Agreement, the Collateral
Series Supplement, the Transfer and Servicing Agreement or any applicable
Enhancement Agreement, will not conflict with, result in a breach of or
violation of any of the terms of, or constitute a default under, the
amended and restated certificate of incorporation or by-laws of the
Transferor, each as amended, the terms of any material indenture or other
material agreement or instrument known to such counsel to which the
Transferor is a party or by which it or its properties are bound or any
rule, order known to such counsel, statute or regulation, of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Transferor; provided, however, that such counsel need
express no opinion as to state securities or Blue Sky laws;
(viii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of this Agreement,
the applicable Terms Agreement, the Indenture, the applicable Indenture
Supplement, the Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement, the Purchase Agreement,
any applicable Enhancement Agreement or the Notes; (B) seeking to prevent
the issuance of the Notes or the consummation of any of the
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transactions contemplated by this Agreement, the applicable Terms
Agreement, the Indenture, the applicable Indenture Supplement, the Pooling
and Servicing Agreement, the Collateral Series Supplement, the Transfer and
Servicing Agreement, the Purchase Agreement, any applicable Enhancement
Agreement or the Notes, which if adversely determined would materially and
adversely affect the performance by the Transferor of its obligations
under, or the validity or enforceability of, this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement, the Purchase Agreement or
any applicable Enhancement Agreement, or (C) seeking adversely to affect
the federal income tax attributes of the Notes as described in the
Prospectus under the headings "Series 2002-[___] Summary - Tax Status of
the Offered Notes and the Trust" and "Material Federal Income Tax
Consequences";
(ix) the Registration Statement has become effective under the Act and
the Prospectus has been filed with the Commission pursuant to Rule 424(b)
promulgated under the Act; to the best of such counsel's knowledge, 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; and the Registration Statement and the Prospectus
(other than the financial, numerical and statistical information contained
therein as to which such counsel need express no opinion) as of their
respective effective date or date of issuance complied as to form in all
material respects with the requirements of the Act and the rules and
regulations promulgated thereunder;
(x) this Agreement, the applicable Terms Agreement, the Indenture,
the applicable Indenture Supplement, the Pooling and Servicing Agreement,
the Collateral Series Supplement, the Transfer and Servicing Agreement, the
Purchase Agreement, any applicable Enhancement Agreement and the Notes
conform in all material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus; and
(xi) the Indenture and the applicable Indenture Supplement have been
qualified under the Trust Indenture Act of 1939, as amended, and neither
the Certificate Trust nor the Note Trust is, or immediately following the
sale of the Notes pursuant hereto will be, required to be registered under
the 1940 Act.
Such counsel also shall state that, subject to its customary practices and
limitations relating to the scope of such counsel's participation in the
preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein, it has no reason
to believe that at its effective date the Registration Statement 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 on the applicable Delivery Date includes any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than financial, numerical
and statistical information
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contained therein as to which such counsel need express no opinion); in
rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper and as stated therein, on certificates of responsible
officers of the Transferor, the Servicer and public officials;
(e) you shall have received an opinion of McGuireWoods LLP (or such
other counsel as shall be specified in the applicable Terms Agreement),
counsel to FNANB, dated the applicable Delivery Date, substantially to the
effect that:
(i) FNANB is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, with full power and authority to own its assets and operate
its business as described in the Prospectus, and had at all relevant
times and now has, the power, authority and legal right to own the
Receivables, sell the Receivables to the Transferor pursuant to the
Purchase Agreement, and service the Receivables pursuant to the
Pooling and Servicing Agreement or the Transfer and Servicing
Agreement, as the case may be;
(ii) FNANB has full power and authority to execute and deliver
the Purchase Agreement, the Pooling and Servicing Agreement, the
Collateral Series Supplement and the Transfer and Servicing Agreement
and to consummate the transactions contemplated therein;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of FNANB and have been
duly executed and delivered by FNANB;
(iv) the Purchase Agreement, the Pooling and Servicing
Agreement, the Collateral Series Supplement and the Transfer and
Servicing Agreement each constitutes the legal, valid and binding
agreement of FNANB, enforceable against FNANB in accordance with its
terms, subject, as to enforcement, to (A) the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium,
conservatorship, receivership, or other similar laws of general
applicability relating to or affecting creditors' rights generally or
the rights of creditors of national banking associations, (B) the
application of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and
(C) the enforceability under certain circumstances of provisions
indemnifying a party against liability where such indemnification is
contrary to public policy;
(v) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
the Federal banking laws for the consummation of the transactions
contemplated in the Purchase Agreement, the Pooling and Servicing
Agreement, the Collateral Series Supplement or the Transfer and
Servicing Agreement, except such as have been obtained or made;
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(vi) the execution, delivery and performance by FNANB of its
obligations under the Purchase Agreement, the Pooling and Servicing
Agreement, the Collateral Series Supplement and the Transfer and
Servicing Agreement, the sale of Receivables to the Transferor, and
the consummation of any other of the transactions contemplated in the
Purchase Agreement, the Pooling and Servicing Agreement, the
Collateral Series Supplement and the Transfer and Servicing Agreement,
will not conflict with, result in a breach of or violation of any of
the terms of, or constitute a default under, the articles of
association or by-laws of FNANB, each as amended, the terms of any
material indenture or other material agreement or instrument known to
such counsel to which FNANB is a party or by which it or its
properties are bound or any rule, order known to such counsel, statute
or regulation, to the extent the foregoing relate to the Federal
banking law, of any court, regulatory body, administrative agency or
governmental body having jurisdiction over FNANB;
(vii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of the Purchase
Agreement, the Indenture, the applicable Indenture Supplement, the
Pooling and Servicing Agreement, the Collateral Series Supplement or
the Transfer and Servicing Agreement or (B) seeking to prevent the
consummation of any of the transactions contemplated by the Purchase
Agreement, the Indenture, the applicable Indenture Supplement, the
Pooling and Servicing Agreement, the Collateral Series Supplement or
the Transfer and Servicing Agreement which if adversely determined
would materially and adversely affect the performance by FNANB of its
obligations under, or the validity or enforceability of, the Purchase
Agreement, the Indenture, the applicable Indenture Supplement, the
Pooling and Servicing Agreement, the Collateral Series Supplement or
the Transfer and Servicing Agreement;
(f) you shall have received an opinion of McGuireWoods LLP (or such
other counsel as shall be specified in the applicable Terms Agreement),
special counsel for the Transferor, dated the Delivery Date, in form and
substance satisfactory to you and your counsel, substantially to the effect
that:
(i) the statements in the Prospectus under the heading
"Material Federal Income Tax Consequences" and the summary thereof
under the heading "Series 2002-[___] Summary - Tax Status of the
Offered Notes and the Trust," to the extent they constitute matters of
Federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects; and
(ii) the statements in the Prospectus under the headings "Legal
Matters Relating to the Receivables" and "ERISA Considerations," to
the extent they constitute matters of Federal law or legal conclusions
with respect thereto, have been reviewed by such counsel and are
correct in all material respects;
12
(g) you shall have received an opinion or opinions of
McGuireWoods LLP (or such other counsel as shall be specified in the
applicable Terms Agreement), special counsel for the Transferor and
FNANB, dated the Delivery Date, in form and substance satisfactory to
you and your counsel, with respect to certain matters relating to (i)
the transfer of the Receivables from FNANB to the Transferor, (ii) the
transfer of the Receivables from the Transferor to the Certificate
Trust, (iii) the transfer of the Collateral Certificate from the
Transferor to the Note Trust and (iv) the pledge of the Collateral
Certificate by the Note Trust to the Collateral Trustee, with respect
to the perfection of the Transferor's and the Certificate Trust's
respective interests in the Receivables and the Note Trust's and the
Indenture Trustee's respective interests in the Collateral
Certificate, and certain other matters relating to the effect of
bankruptcy or receivership of the Transferor or FNANB on such
interests in the Receivables and with respect to other related matters
in a form previously approved by you and your counsel; in addition,
you shall have received a reliance letter with respect to any opinion
that the Transferor is required to deliver to the Rating Agency;
(h) you shall have received from Mayer, Brown, Xxxx & Maw (or
such other counsel as may be named in the applicable Terms Agreement),
special counsel to the Underwriters, such opinion or opinions, dated
the Delivery Date, in form and substance satisfactory to you, with
respect to the organization of the Transferor, the validity of the
Notes, the Registration Statement, the Prospectus and other related
matters as you may require, and the Transferor shall have furnished to
such counsel such documents as they may reasonably request for the
purpose of enabling them to pass on such matters;
(i) you shall have received, with respect to the Transferor, a
certificate, dated the Delivery Date, of a Vice President or more
senior officer of the Transferor in which such officer, to the best of
his or her knowledge after reasonable investigation, shall state that
(A) the representations and warranties of the Transferor in this
Agreement are true and correct in all material respects on and as of
the Delivery Date, (B) the Transferor has complied in all material
respects with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder and under the applicable Terms
Agreement at or prior to the Delivery Date, (C) the Registration
Statement has become effective, 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 (D) subsequent to the date of the applicable
Prospectus Supplement, there has been no material adverse change in
the condition (financial or otherwise) of the Transferor except as set
forth in or contemplated in the Registration Statement and the
Prospectus or as described in such certificate;
(j) you shall have received an opinion of Xxxxxx & Xxxxxx LLP,
(or such other counsel as may be named in the applicable Terms
Agreement), counsel to the Indenture Trustee, dated the Delivery Date,
in form and substance satisfactory to you and your counsel, to the
effect that:
(i) the Indenture Trustee has been duly incorporated and is
validly existing as a banking organization under the laws of the
State of [_____] and has the power and authority to enter into
and to perform all actions required of it
13
under the Indenture, the applicable Indenture Supplement, the
Collateral Series Supplement and any applicable Enhancement
Agreement;
(ii) each of the Indenture, the applicable Indenture
Supplement and the Collateral Series Supplement has been duly
authorized, executed and delivered by the Indenture Trustee and
constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship receivership or other
similar laws now or hereafter in effect relating to the
enforcement of creditors' rights in general, as such laws would
apply in the event of a bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or
similar occurrence affecting the Indenture Trustee, and (B)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
as well as concepts of reasonableness, good faith and fair
dealing;
(iii) the Notes have been duly authenticated and delivered
by the Indenture Trustee;
(iv) the execution and delivery of the Indenture, the
applicable Indenture Supplement, the Collateral Series Supplement
and any applicable Enhancement Agreement by the Indenture Trustee
and the performance by the Indenture Trustee of their respective
terms do not conflict with or result in a violation of (A) any
law or regulation of the United States of America or the State of
New York governing the banking or trust powers of the Indenture
Trustee, or (B) the certificate of incorporation or articles of
association or by-laws of the Indenture Trustee; and
(v) 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 the applicable Indenture Supplement, the
Collateral Series Supplement and any applicable Enhancement
Agreement or the performance by the Indenture Trustee thereunder;
(k) you shall receive an opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., counsel to the Owner Trustee, dated the Delivery Date, and
satisfactory in form and substance to you and your counsel, to the
effect that:
(i) Wilmington Trust Company is duly incorporated and
validly existing as a Delaware banking corporation in good
standing under the laws of the State of Delaware and has the
power and authority to execute, deliver and perform the Trust
Agreement, and, as Owner Trustee on behalf of the Trust, to
execute and deliver the Indenture and the Transferor and
Servicing Agreement (the Indenture and Transfer and Servicing
Agreement collectively referred to in this Section 6(k)
14
and in Section 6(l) as the "Trust Documents") and to consummate the
transactions contemplated thereby;
(ii) the Trust Agreement has been duly authorized, executed and
delivered by Wilmington Trust Company and constitutes the legal, valid
and binding obligation of Wilmington Trust Company enforceable against
Wilmington Trust Company in accordance with its terms;
(iii) the Trust Documents have been duly authorized, executed and
delivered by the Owner Trustee on behalf of the Note Trust;
(iv) neither the execution, delivery or performance by
Wilmington Trust Company of the Trust Agreement or, as Owner Trustee
on behalf of the Note Trust, of the Trust Documents, nor the
consummation of any of the transactions by Wilmington Trust Company
contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the
State of Delaware or the United States of America governing the trust
powers of Wilmington Trust Company, other than the filing of the
Certificate of Trust for the Trust with the Delaware Secretary of
State;
(v) neither the execution, delivery or performance by
Wilmington Trust Company of the Trust Agreement or, as Owner Trustee
on behalf of the Note Trust, of the Trust Documents, nor the
consummation of any of the transactions by Wilmington Trust Company
contemplated thereby, is in violation of the certificate of
organization or bylaws of Wilmington Trust Company or of any law,
governmental rule or regulation of the State of Delaware or of the
United States of America governing the banking or trust powers of
Wilmington Trust Company 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, or any judgment or order applicable to Wilmington Trust
Company; and
(vi) 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) you shall receive an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel to the Note Trust, dated the Delivery Date, and
satisfactory in form and substance to you and your counsel, to the effect
that:
15
(i) the Note Trust has been duly formed and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, 12 Del. C. 3801 et seq. (referred to in this
Section 6(l) as the "Trust Act");
(ii) the Trust Agreement is a legal, valid and binding
obligation of the Transferor and the Owner Trustee, enforceable
against the Transferor and the Owner Trustee, in accordance with its
terms;
(iii) under the Trust Act and the Trust Agreement, the execution
and delivery of the Transfer and Servicing Agreement, the issuance of
the Notes, and the granting of the Collateral to the Indenture Trustee
as security for the Notes has been duly authorized by all necessary
trust action on the part of the Note Trust;
(iv) under the Trust Act and the Trust Agreement, the Note
Trust has (i) the trust power and authority to execute, deliver and
perform its obligations under the Trust Documents and the Notes, and
(ii) duly authorized, executed and delivered such agreements and
obligations;
(v) the Transferor Interest is entitled to the benefits of the
Trust Agreement;
(vi) neither the execution, delivery or performance by the Note
Trust of the Trust Documents or the Notes, nor the consummation of any
of the transactions by the Note Trust contemplated thereby, requires
the consent or approval of, the withholding of objection on the part
of, the giving of notice to or, the filing, registration or
qualification with, or the taking or any other action in respect of,
any governmental authority or agency of the State of Delaware, other
than the filing of the Certificate of Trust with the Delaware
Secretary of State (which certificate of trust has been duly filed)
and the filing of any UCC financing statements with the Delaware
Secretary of State pursuant to the Indenture;
(vii) neither the execution, delivery and performance by the
Note Trust of the Trust Documents, nor the consummation by the Note
Trust of the transactions contemplated thereby, is in violation of the
Trust Agreement or of any law, rule, or regulation of the State of
Delaware applicable to the Note Trust;
(viii) with respect to the Note Trust and the Receivables: (a)
there is no document, stamp, excise or other similar tax imposed by
the State of Delaware upon the perfection of a security interest in
the Collateral Certificate or the Receivables, in the transfer of the
Collateral Certificate or the Receivables to or from the Note Trust or
the Certificate Trust or upon the issuance of the Collateral
Certificate or the Notes; (b) there is no personal property tax
imposed by the State of Delaware upon or measured by the corpus of the
Note Trust or the Certificate Trust; (c) the characterization of the
Note Trust and the Certificate Trust for federal income tax purposes
will be determinative of the characterization of the Note Trust and
the Certificate Trust for Delaware income tax purposes and assuming
the Note Trust and the Certificate Trust will not be taxed as
associations
16
or as publicly traded partnerships for federal income tax purposes,
neither the Note Trust nor the Certificate Trust will be subject to
Delaware income tax and Noteholders who are not otherwise subject to
Delaware income tax will not be subject to tax by reason of their
ownership of the Notes and the receipt of income therefrom; and (d)
any income tax imposed by the State of Delaware that might be
applicable to the Note Trust would be based on "federal taxable
income," and for the purposes of determining such income, the
characterization of such income for federal income tax purposes will
be determinative, whether the characterization of the transaction is
that of a sale or a loan; and
(ix) the Transferor is the sole beneficial owner of the Note
Trust.
(m) you shall receive an opinion or opinions of counsel to the
Enhancement Provider, if any, dated the Delivery Date, and satisfactory in
form and substance to you and your counsel, to the effect that:
(i) the Enhancement Provider is duly organized and validly
existing under the laws of the jurisdiction of its incorporation, is
duly qualified and/or licensed to do business in all jurisdictions
where the nature of its operations as contemplated in the applicable
Enhancement Agreement requires such qualification, and has the power
and authority (corporate and other) to enter into the applicable
Enhancement Agreement and to perform its obligations thereunder; and
(ii) each applicable Enhancement Agreement has been duly
authorized, executed and delivered by the Enhancement Provider, and
constitutes the legal, valid and binding obligation of the Enhancement
Provider, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
as such laws would apply in the event of the insolvency, liquidation
or reorganization or other similar occurrence with respect to the
Enhancement Provider or in the event of any moratorium or similar
occurrence affecting the Enhancement Provider.
(n) you shall have received reliance letters, if applicable, with
respect to any opinions delivered to the Transferor by foreign counsel of
each provider of Enhancement (the "Enhancement Provider") for the
applicable Series under an Enhancement Agreement, if any, which opinions
shall include matters relating to (i) the due organization of the
Enhancement Provider, (ii) the authorization, execution, delivery and
performance by the Enhancement Provider of the Enhancement Agreement and
the binding effect of the Enhancement Agreement, and (iii) the
enforceability in the foreign jurisdiction in which such Enhancement
Provider is located of a judgment obtained under the Enhancement Agreement
in a United States federal court or in a court of the State of New York;
such reliance letters shall include all matters that are contained in the
opinions of foreign counsel;
17
(o) you shall have received the duly executed agreement of Circuit
City Stores, Inc., a Virginia corporation ("Circuit City"), in form and
substance satisfactory to you, regarding Circuit City's undertaking to
provide you with indemnification under this Agreement, as described in
Sections 7(a), (c) and (d).
The Transferor will furnish to you conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification.
(a) The Transferor will indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
the Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the respective officers, directors and employees of such person,
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriters or such controlling person may become subject under
the Act, the Exchange 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 each Underwriter and each such officer,
director, employee or controlling person for any legal or other expenses
reasonably incurred by such Underwriter and each such officer, director,
employee or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action, subject to the
following proviso, as such expenses are incurred; provided, however, that
(i) the Transferor will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement in or omission or
alleged omission made in any such documents in reliance upon and in
conformity with written information furnished to the Transferor by an
Underwriter specifically for use therein and (ii) such indemnity with
respect to any untrue statement or alleged untrue statement or omission or
alleged omission in any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof, if such person was not
given or sent a copy of the Prospectus including the related Prospectus
Supplement excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Notes to such person in any
case where such delivery is required by the Act and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
contained in any Preliminary Prospectus and forming the basis for the
related cause of action was corrected in the Prospectus or the related
Prospectus Supplement. This indemnity agreement will be in addition to any
liability which the Transferor may otherwise have.
(b) Each Underwriter severally, and not jointly, will indemnify and
hold harmless the Transferor, each of its directors, each of its officers
who have signed the Registration Statement and each person, if any, who
controls the Transferor within the
18
meaning of the Act or the Exchange Act and the respective officers,
directors and employees of each such person against any losses, claims,
damages or liabilities to which the Transferor or any such director,
officer or controlling person may become subject, under the Act, the
Exchange 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, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Transferor by such Underwriter specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Transferor
or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred. This indemnity agreement will be in
addition to any liability that 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 and/or delay so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than in this Section unless such omission caused actual
prejudice to the party not notified; in case any such action is brought
against any indemnified party, and it notified the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written notice
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified 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 defense thereof other than reasonable costs of
investigation. If the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. No indemnifying party may
avoid its duty to indemnify under this Section 7 if such indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement or compromise of, or consent to the entry of any judgment
in, any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on all
claims that are the subject matter of such action. An indemnifying
19
party shall not be liable for any settlement of any claim effected without
its written consent.
(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 to 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 (i) the relative benefit received by
the Transferor on the one hand and the Underwriters on the other hand from
the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, the relative benefits referred to
in clause (i) above but also the relative fault of the Transferor on the
one hand and the Underwriters on the other hand in connection with the
statement or omission that resulted in such liabilities and expenses as
well as any other relevant equitable considerations. The relative benefits
received by the Transferor on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds of the offering of the Notes (before deducting expenses) received
by the Transferor bear to the total underwriting discounts and commissions
received by the Underwriters in connection with the offering of the Notes.
The relative fault of the parties shall be determined by reference to,
among other things, 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.
The Transferor 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 (even if the Underwriters were treated as one entity for such
purpose).
8. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Notes default in their obligation to purchase
Notes hereunder and under the Terms Agreement and the aggregate principal amount
of such Notes which such defaulting Underwriter (or group of Underwriters)
agreed, but failed, to purchase does not exceed 10% of the total principal
amount of the Notes set forth in such Terms Agreement, you may make arrangement
satisfactory to the Transferor for the purchase of such Notes by other persons,
including any of the Underwriters participating in such offering, but if no such
arrangements are made within a period of 36 hours after the applicable Delivery
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective total commitments hereunder and under such Terms
Agreement, to purchase the Notes which such defaulting Underwriters (or group of
Underwriters) agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Notes with respect to which
such default or defaults occur is more than 10% of the total principal amount of
the Notes set forth in such Terms Agreement and arrangements satisfactory to you
and the Transferor for the purchase of such Notes 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 the Transferor,
except as provided in Section 10. 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.
20
9. Termination of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Notes on the Delivery Date shall be terminable
by the Underwriters by written notice delivered to the Transferor if at any time
on or prior to the Delivery Date (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or materially limited, or there
shall have been any setting of minimum prices for trading on such exchange or
any suspension of trading of the securities of Circuit City on any exchange or
in the over-the-counter market, (ii) a general moratorium on commercial banking
activities in New York or Georgia shall have been declared by any of Federal,
New York or Georgia authorities, (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
your reasonable judgment as representative of the Underwriters, impracticable to
market the Notes or to settle transactions in the Notes on the terms and in the
manner contemplated in the Prospectus, (iv) the rating of another Series of
Notes shall have been reduced or withdrawn or (v) any change or any development
involving a prospective change, materially and adversely affecting (A) the Trust
Property taken as whole or (B) the business or properties of the Transferor or
FNANB occurs, which, in your reasonable judgment as representative of the
Underwriters, in the case of either (A) or (B), makes it impracticable to market
the Notes on the terms and in the manner contemplated in the Prospectus.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Transferor or its officers and of the several 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, the Transferor or any of their respective officers or
directors or any controlling person, and will survive delivery of and payment
for the Notes.
If this Agreement is terminated pursuant to Sections 8 and 9 or if for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Transferor shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5(g), and the obligations of the Transferor and the
Underwriters pursuant to Section 7 or 8 shall remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent
to an Underwriter, will be mailed, delivered or telecopied to [_______________],
Attention: [______________], facsimile number [______________] and to any other
Underwriter at such address, if any, as is specified in writing to the
Transferor for notices hereunder, or if sent to the Transferor, will be mailed,
delivered or telecopied to Third Floor, Suite 288, 0 Xxxx Xxxxxx, Xxxxxxxx XX 00
Xxxxxxx, Xxxxxxxxx: Treasurer, facsimile number (000) 000-0000, or such other
address specified in the applicable Terms Agreement; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied to such Underwriter at the address furnished by it.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
21
13. Representations of Underwriters. You will act for the several
Underwriters in connection with this financing, and any action under this
Agreement and any Terms Agreement taken by you will be binding upon all the
Underwriters identified in such Terms Agreement.
14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Transferor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Transferor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: __________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
[_______________________]
as Representative of the
several Underwriters
By: ___________________________________
Name:
Title:
22
EXHIBIT A
DC FUNDING INTERNATIONAL, INC.
FNANB CREDIT CARD MASTER NOTE TRUST
ASSET BACKED NOTES
TERMS AGREEMENT
Dated: ____________, 20__
To: DC Funding International, Inc., as Transferor under
the Amended and Restated Master Pooling and Servicing
Agreement dated as of December 31, 2001.
Re: Underwriting Agreement dated July ___, 2002 (the "Agreement")
Title: Asset Backed Notes, Series ________ [State by Class if more than one
Class].
Registration No.: ______________________________.
Initial Principal Amount, Series and Class Designation Schedule: [insert
relevant description of Series and Classes of Notes].
Note Rating: [" " by Xxxxx'x Investors Service, Inc.] [" " by Standard
& Poor's Corporation] [" " by [other Rating Agency]] [State by Class if
more than one Class].
Note Rate: [______% per annum] [Floating rate--describe] [State by Class if more
than one Class].
Terms of Sale: [The purchase price for the Notes to the Underwriter[s] will be
___% of the aggregate principal amount of the Notes as of ____________, 20__,
plus accrued interest at the Note Rate from ____________, 20__, together with
estimated expenses of approximately $____________.] [The Underwriters will offer
the Notes to the public from time to time, in negotiated transactions or
otherwise, at varying prices to be determined at the time of sale.]
Distribution Dates: ______________________________.
Delivery Date and Location: ___:___ A.M., Eastern time, on ____________, 20__,
or at such other time not later than seven full business days thereafter as may
be agreed upon, at the offices
A-1
of [McGuireWoods LLP, One Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000] [other offices].
Notwithstanding anything in the Agreement or in this Terms Agreement to the
contrary, the Agreement and this Terms Agreement constitute the entire agreement
and understanding among the parties hereto with respect to the purchase and sale
of the above-referenced Notes. This Terms Agreement may be amended only by
written agreement of the parties thereto.
The Underwriters [named in Schedule 1 hereto agree, severally and not
jointly], subject to the terms and provisions of the Agreement, which is
incorporated by reference herein and made a part hereof, to purchase the Initial
Principal Amount of Notes [set forth opposite their names in Schedule 1].
Very truly yours,
[_______]
as Underwriter
By: ________________________________
Name:
Title
Accepted:
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: _______________________________
Name:
Title:
A-2
SCHEDULE 1
$____________ Principal Amount of [Class ______] Asset Backed Notes, Series
_______
Principal Amount
[Name of Underwriters]
$
------------------
$
==================
$____________ Principal Amount of [Class ______] Asset Backed Notes, Series
_______
Principal Amount
[Name of Underwriters]
$
------------------
$
==================
A-3
