August 5, 2009 World Financial Network Credit Card Master Note Trust $245,000,000 Class A Fixed Rate Asset Backed Notes, Series 2009-D UNDERWRITING AGREEMENT
Exhibit 1.3
August 5, 2009
World Financial Network Credit Card Master Note Trust
$245,000,000 Class A Fixed Rate Asset Backed Notes, Series 2009-D
$245,000,000 Class A Fixed Rate Asset Backed Notes, Series 2009-D
Barclays Capital Inc.
as an Underwriter and as a Representative
of the several Underwriters set forth
on Schedule A hereto
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as an Underwriter and as a Representative
of the several Underwriters set forth
on Schedule A hereto
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RBS Securities Inc.
as an Underwriter and as a Representative
of the several Underwriters set forth
on Schedule A hereto
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
as an Underwriter and as a Representative
of the several Underwriters set forth
on Schedule A hereto
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. WFN Credit Company, LLC (“WFN LLC”) proposes to cause World
Financial Network Credit Card Master Note Trust (the “Issuer”) to issue $245,000,000
aggregate principal amount of World Financial Network Credit Card Master Note Trust Class A Fixed
Rate Asset Backed Notes, Series 2009-D (the “Class A Notes”), $11,629,747 aggregate
principal amount of World Financial Network Credit Card Master Note Trust Class M Fixed Rate Asset
Backed Notes, Series 2009-D (the “Class M Notes”), $14,731,013 aggregate principal amount
of World Financial Network Credit Card Master Note Trust Class B Fixed Rate Asset Backed Notes,
Series 2009-D (the “Class B Notes”), and $38,765,823 aggregate principal amount of World
Financial Network Credit Card Master Note Trust Class C Fixed Rate Asset Backed Notes, Series
2009-D (the “Class C Notes”) (collectively, the Class A Notes, the Class M Notes, the Class
B Notes and the Class C Notes are the “Notes”). The Class A Notes are referred to herein
as the “Underwritten Notes”. The representatives of the Underwriters may be referred to
herein individually as a “Representative” and collectively as the
“Representatives.” The Class M Notes, the Class B Notes and the Class C Notes
(collectively, the “Purchased Notes”) will be offered and sold directly by WFN LLC to World
Financial Network National Bank (the “Bank”) (such offers and sales referred to herein,
collectively, as the “Purchased Notes Transaction”).
One or more of the underwriters for the Class A Notes listed on Schedule A hereto (the
“Underwriters”) is a financial institution appearing on the Federal Reserve Bank of New
York’s list of Primary Government Securities Dealers Reporting to the Government Securities Dealers
Statistics Unit of the Federal Reserve Bank of New York (each such financial institution, a
“Primary Dealer”), and may be a party to that certain Master Loan and Security Agreement
among the Federal Reserve Bank of New York (the “FRBNY”), as Lender, various Primary
Dealers from time to time party thereto, each on behalf of itself and its respective customers as
borrowers thereunder from time to time, The Bank of New York Mellon, as Administrator, and The Bank
of New York Mellon, as Custodian (the “MLSA”), in connection with the Term Asset-Backed
Securities Loan Facility (“TALF”). To the extent expressly provided in this Agreement, and
subject to the limitations in Section 8, certain of the rights, benefits and remedies of the
Underwriters under this Agreement will be for the benefit of, and will be enforceable by, each
Underwriter not only in such capacity but also in its capacity as a Primary Dealer and as a
signatory to the MLSA.
The Issuer is a Delaware statutory trust formed pursuant to (a) an Amended and Restated Trust
Agreement, dated as of August 1, 2001, between WFN LLC, as transferor (the “Transferor”),
and U.S. Bank Trust National Association (“U.S. Bank”), as successor to Chase Bank USA,
National Association (“Chase”), as owner trustee (the “Owner Trustee”), as
supplemented by the Instrument of Resignation, Appointment and Acceptance (the “Instrument of
Resignation”), dated as of September 29, 2006, by and among the Transferor, Chase, as resigning
Owner Trustee, and U.S. Bank, as successor Owner Trustee (as heretofore amended and supplemented,
the “Trust Agreement”), and (b) the filing of a certificate of trust with the Secretary of
State of Delaware on July 27, 2001, as amended by the Certificate of Amendment to Certificate of
Trust of World Financial Network Credit Card Master Note Trust, filed with the Secretary of State
of Delaware on September 29, 2006. The Notes will be issued pursuant to a Master Indenture, dated
as of August 1, 2001, as amended by the Omnibus Amendment referred to below, the Supplemental
Indenture No. 1 to Master Indenture, dated as of August 13, 2003, the Supplemental Indenture No. 2
to Master Indenture, dated as of June 13, 2007 and the Supplemental Indenture No. 3 to Master
Indenture, dated as of May 27, 2008, each between the Issuer and The Bank of New York Mellon Trust
Company, N.A. (“BNYMTCNA”), as successor to BNY Midwest Trust Company (“BNYMTC”),
as indenture trustee (the “Indenture Trustee”), and as supplemented by the Agreement of
Resignation, Appointment and Acceptance, dated as of May 27, 2008, by and among the Bank, as
administrator (in such capacity, the “Administrator”), the Issuer, BNYMTC, as resigning
Indenture Trustee, and BNYMTCNA, as successor Indenture Trustee (as heretofore amended and
supplemented, the “Master Indenture”), and as further supplemented by the Series 2009-D
Indenture Supplement with respect to the Notes, to be dated as of August 13, 2009 (the
“Indenture Supplement” and, together with the Master Indenture, the “Indenture”).
The primary asset of the Issuer is a certificate (the “Collateral Certificate”)
representing a beneficial interest in the assets held in the World Financial Network Credit Card
Master Trust (“WFNMT”), issued pursuant to the Second Amended and Restated Pooling and
Servicing Agreement, dated as of January 17, 1996, as amended and restated as of September 17,
1999, as amended and restated a second time as of August 1, 2001, as amended by the Omnibus
Amendment referred to below, the Second Amendment to Second Amended and Restated Pooling and
Servicing Agreement, dated as of May 19, 2004, the Third Amendment to Second Amended and Restated
Pooling and Servicing Agreement, dated as of March 30, 2005, the Fourth Amendment to the Second
Amended and Restated Pooling and Servicing Agreement, dated as of June 13, 2007, the Fifth
Amendment to the Second Amended and Restated Pooling and Servicing Agreement, dated as of October,
26, 2007 and the Sixth Amendment to the Second Amended and Restated Pooling and Servicing
Agreement, dated as of May 27, 2008, each
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among the Transferor, the Bank, as servicer (the “Servicer”), and BNYMTCNA, as
successor to BNYMTC (the successor-in-interest to the corporate trust administration of Xxxxxx
Trust and Savings Bank), as trustee (the “WFNMT Trustee”), and as supplemented by the
Agreement of Resignation, Appointment and Acceptance, dated as of May 27, 2008, by and among the
Transferor, BNYMTC, as resigning WFNMT Trustee, and BNYMTCNA, as successor WFNMT Trustee (as
heretofore amended and supplemented, the “Amended and Restated Pooling and Servicing
Agreement”), and as further supplemented by the Collateral Series Supplement to the Amended and
Restated Pooling and Servicing Agreement, dated as of August 21, 2001, and as amended as of
November 7, 2001 (as heretofore amended, the “Collateral Supplement” and, together with the
Amended and Restated Pooling and Servicing Agreement, the “PSA”). The assets of WFNMT
include, among other things, certain amounts due (the “Receivables”) on a pool of
private-label credit card accounts of the Bank (the “Accounts”).
The Receivables are transferred to WFNMT pursuant to the Amended and Restated Pooling and
Servicing Agreement. The Receivables transferred to WFNMT by the Transferor are acquired by the
Transferor from the Bank pursuant to a Receivables Purchase Agreement, dated as of August 1, 2001
(the “Receivables Purchase Agreement”), between WFN LLC and the Bank. The Collateral
Certificate has been transferred by the Transferor to the Issuer pursuant to the Transfer and
Servicing Agreement, dated as of August 1, 2001, as amended by the First Amendment to Transfer and
Servicing Agreement, dated as of November 7, 2002, the Omnibus Amendment referred to below, the
Third Amendment to Transfer and Servicing Agreement, dated as of May 19, 2004, the Fourth Amendment
to Transfer and Servicing Agreement, dated as of March 30, 2005, the Fifth Amendment to the
Transfer and Servicing Agreement, dated as of June 13, 2007, and the Sixth Amendment to the
Transfer and Servicing Agreement, dated as of October 26, 2007 (as heretofore amended, the
“TSA”), among the Transferor, the Servicer, and the Issuer. References to the “Omnibus
Amendment” herein refer to that certain Omnibus Amendment, dated as of March 31, 2003, among the
Transferor, the Bank, the Servicer, the Issuer, the WFNMT Trustee and the Indenture Trustee.
The Bank has agreed to provide notices and perform on behalf of the Issuer certain other
administrative obligations required by the TSA, the Trust Agreement, the Master Indenture and each
indenture supplement for each series of notes issued by the Issuer, pursuant to an Administration
Agreement, dated as of August 1, 2001, as amended by the First Amendment to the Administration
Agreement, dated as of July 31, 2009 (as heretofore amended, the “Administration
Agreement”), between the Bank, as Administrator, and the Issuer. The TSA, the PSA, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and the Administration Agreement
are referred to herein, collectively, as the “Program Documents.”
This Underwriting Agreement is referred to herein as this “Agreement.” To the extent
not defined herein, capitalized terms used herein have the meanings assigned in the Program
Documents.
A shelf registration statement on Form S-3 (having registration number 333-133170) has been
prepared and filed with the Securities and Exchange Commission (the “Commission”) in
accordance with the provisions of the Securities Act of 1933, as amended (the “Act”), and
the rules and regulations of the Commission thereunder (the “Rules and Regulations”),
including a form of prospectus, relating to the Notes and the Collateral Certificate. For purposes
of this
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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 “Initial Effective Date” means the date of the Effective Time. The registration
statement as amended has been declared effective by the Commission. If any post-effective
amendment has been filed with respect thereto, prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective by the Commission. Such
registration statement, as amended at the Effective Time, including all materials incorporated by
reference therein and including all information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B under the Act, is referred to in this
Agreement as the “Registration Statement.”
WFN LLC proposes to file with the Commission pursuant to Rule 424(b) (“Rule 424(b)”)
of the Rules and Regulations of the Commission under the Act a supplement (together with the
information referred to under the caption “Static Pool Information” therein and set forth in Annex
II thereto (the “Static Pool Information”), without regard to whether such information is
deemed to be a part of a prospectus pursuant to Item 1105(d) of Regulation AB under the Act (the
“Prospectus Supplement”)) to the prospectus included in the Registration Statement (such
prospectus, in the form it appears in the Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424(b), is hereinafter referred to as the
“Base Prospectus”) relating to the Notes and the method of distribution thereof. The Base
Prospectus and the Prospectus Supplement, together with any amendment thereof or supplement
thereto, is hereinafter referred to as the “Prospectus.”
Prior to 12:05 p.m. (Eastern Time U.S.) on August 5, 2009, which is the time the first
“Contract of Sale” (within the meaning of Rule 159 of the Act) with respect to the Underwritten
Notes, as designated by the Representatives, was entered into (hereinafter referred to as the
“Time of Sale”), the Bank and the Transferor prepared a Preliminary Prospectus, dated July
30, 2009 (subject to completion) (the “Time of Sale Information”). As used herein,
“Preliminary Prospectus” means, with respect to any date or time referred to herein, the
most recent preliminary Prospectus Supplement, as amended or supplemented (including any Corrected
Prospectus (as defined below)), if applicable, together with the Static Pool Information (the
“Preliminary Prospectus Supplement”), together with the Base Prospectus, which has been
prepared and delivered by the Bank and the Transferor to the Underwriters in accordance to the
provisions hereof. As used herein, the “Effective Date” means August 5, 2009, which is the earlier
of the date the Prospectus was first used or the date of the Time of Sale, which therefore is the
date as of which the Prospectus is deemed to be part of and included in the Registration Statement
pursuant to Rule 430B(f)(1) under the Act.
If, subsequent to the Time of Sale (as defined above) and prior to the Closing Date, the
Preliminary Prospectus included an untrue statement of material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and the Transferor has prepared and delivered to the
Underwriters a Corrected Prospectus (as defined below), and as a result investors in the Notes
elect to terminate their existing Contracts of Sale and enter into new Contracts of Sale (within
the meaning of Rule 159 under the Act) for any Notes, then “Time of Sale Information” will refer to
the information conveyed to investors on the date of entry into the first such new Contract of Sale
pursuant to an amended Preliminary Prospectus approved by the Transferor and
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the Representatives that corrects such material misstatements or omissions (a “Corrected
Prospectus”) and “Time of Sale” will refer to the date on which such new Contracts of Sale were
first entered into.
The Transferor and the Bank hereby agree, severally and not jointly, with the Underwriters as
follows:
2. Representations and Warranties of the Transferor, the Issuer and the Bank. Each of
the Transferor (the representations and warranties as to the Transferor and the Issuer being given
by the Transferor) and the Bank (the representations and warranties as to the Bank being given by
the Bank) represents and warrants to and agrees (i) with the Underwriters, and (ii) with respect to
clauses (p)(ii), (q)(ii), (y), (z), (ee) and (ff) of this Section 2 only, with the Underwriters who
are Primary Dealers, in their capacities as Primary Dealers with respect to TALF loans secured by
the Underwritten Notes, that:
(a) The Transferor is duly organized, validly existing and in good standing as a
limited liability company under the laws of the State of Delaware, has all requisite power,
authority and legal right to own its property, transact the business in which it is now
engaged and conduct its business as described in the Registration Statement, the
Preliminary Prospectus and the Prospectus, and had at all relevant times and has currently
all requisite power, authority and legal right to execute, deliver and perform its
obligations under this Agreement, the TSA, the PSA, the Receivables Purchase Agreement and
the Trust Agreement and to authorize the issuance of the Notes and the Collateral
Certificate.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory
trust in good standing under the laws of the State of Delaware, has all requisite power,
authority and legal right to own its property, transact the business in which it is now
engaged and conduct its business as described in the Registration Statement, Preliminary
Prospectus and the Prospectus, and had at all relevant times and has currently all
requisite power, authority and legal right to execute, deliver and perform its obligations
under the Indenture, the TSA and the Administration Agreement and to authorize the issuance
of the Notes.
(c) The Bank is a national banking association duly organized, validly existing and in
good standing under the laws of the United States, and is in good standing under the laws
of each jurisdiction which requires such qualification wherein it owns or leases material
properties or conducts material business, except where failure to so qualify would not have
a material adverse effect, has all requisite power, authority and legal right to own its
property and conduct its credit card business as such properties are presently owned and
such business is presently conducted, and conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus, and to own the
Accounts, and had at all relevant times and has currently all requisite power, authority
and legal right to execute, deliver and perform its obligations under the Receivables
Purchase Agreement, the TSA, the PSA and the Administration Agreement.
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(d) The execution, delivery and performance of each of the Program Documents to which
it (and, with respect to the Transferor, the Issuer) is a party, the incurrence of the
obligations herein and therein set forth, the consummation of the transactions contemplated
hereby and thereby, and the consummation of the Purchased Notes Transaction, and with
respect to the Transferor, the issuance of the Notes and the Collateral Certificate, have
been duly and validly authorized by the Transferor, the Issuer and the Bank, as applicable,
by all necessary action on the part of the Transferor, the Issuer and the Bank, as
applicable.
(e) The terms of each Purchased Notes Transaction are (i) consistent with those of
arm’s-length relationships and (ii) fair and equitable to each of the parties.
(f) This Agreement has been duly authorized, executed and delivered by the Transferor
and the Bank.
(g) Each of the Program Documents to which the Transferor, the Issuer or the Bank is a
party has been, or on or before the Closing Date will be, executed and delivered by the
Transferor, the Issuer and the Bank, as applicable, and when executed and delivered by the
other parties thereto, will constitute a valid and binding agreement of the Transferor, the
Issuer and the Bank, as applicable, enforceable against the Transferor, the Issuer and the
Bank, as applicable, in accordance with its terms, except, in each case, to the extent that
(i) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium, receivership or other similar laws now or hereafter in effect relating to
creditors’ or other obligees’ rights generally or the rights of creditors or other obligees
of institutions insured by the Federal Deposit Insurance Corporation (the “FDIC”),
(ii) the remedy of specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) certain remedial provisions of the Indenture
may be unenforceable in whole or in part under the UCC, but the inclusion of such
provisions does not render the other provisions of the Indenture invalid and
notwithstanding that such provisions may be unenforceable in whole or in part, the
Indenture Trustee, on behalf of the holders of the Notes (the “Noteholders”), will
be able to enforce the remedies of a secured party under the UCC.
(h) The Notes have been duly authorized, will be issued pursuant to the terms of the
Indenture and, when executed by the Owner Trustee on behalf of the Issuer and authenticated
by the Indenture Trustee in accordance with the Indenture and delivered pursuant to the
Indenture and this Agreement, will be duly and validly executed, issued and outstanding and
will constitute legal, valid and binding obligations of the Issuer, enforceable against the
Issuer in accordance with their terms, subject to (i) the effect of bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation and other similar laws affecting
creditors’ rights generally, (ii) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding in equity or at law), and
also to the possible unavailability of specific performance or injunctive relief, and
(iii) the unenforceability under certain circumstances of provisions indemnifying a party
against liability or requiring contribution from a party for liability where such
6
indemnification or contribution is contrary to public policy. The Notes will be in
the form contemplated by the Indenture, and the Notes and the Indenture will conform to the
descriptions thereof contained in the Preliminary Prospectus, the Prospectus and the
Registration Statement.
(i) The Collateral Certificate has been issued pursuant to the terms of the PSA and,
when executed and authenticated by the WFNMT Trustee in accordance with the PSA, was
validly issued. The Collateral Certificate remains outstanding. The Collateral
Certificate is in the form contemplated by the PSA, and the Collateral Certificate and the
PSA conform to the descriptions thereof contained in the Preliminary Prospectus, the
Prospectus and the Registration Statement.
(j) None of the Transferor, the Issuer or the Bank is in violation of any Requirement
of Law or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other instrument to which it is a party or by which it is bound
or to which any of its property is subject, which violation or defaults separately or in
the aggregate would have a material adverse effect on the Transferor, the Issuer or the
Bank.
(k) None of the issuance and sale of the Notes, the issuance of the Collateral
Certificate or the execution and delivery by the Transferor, the Issuer or the Bank of this
Agreement or any Program Document to which it is a party, nor the incurrence by the
Transferor or the Bank of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or thereunder, nor the fulfillment
of the terms hereof or thereof, nor the consummation of the Purchased Notes Transaction,
does or will (A) violate any Requirement of Law presently in effect, applicable to it or
its properties or by which it or its properties are or may be bound or affected,
(B) conflict with, or result in a breach of, or constitute a default under, any indenture,
contract, agreement, mortgage, deed of trust or instrument to which it is a party or by
which it or its properties are bound, which conflict, breach or default would have a
material adverse effect on the Notes, the Collateral Certificate, the Transferor or the
Bank, or (C) result in the creation or imposition of any Lien upon any of its property or
assets (except for those encumbrances created under the Program Documents), which Lien
would have a material adverse effect on the Notes, the Collateral Certificate, the
Transferor, the Issuer or the Bank.
(l) All approvals, authorizations, consents, orders and other actions of any Person or
of any court or other governmental body or official required in connection with the
issuance and sale of the Notes, the execution and delivery by the Transferor, the Issuer or
the Bank of this Agreement or the Program Documents to which it is a party or to the
consummation of the transactions contemplated hereunder and thereunder, or to the
fulfillment of the terms hereof and thereof, or to the consummation of the Purchased Notes
Transaction, have been or will have been obtained on or before the Closing Date.
(m) The Bank has authorized the conveyance of the Receivables to the Transferor and
WFNMT, as applicable; the Transferor has authorized the conveyance of
7
the Receivables to WFNMT; the Transferor has authorized the issuance of the Collateral
Certificate by WFNMT; and the Transferor has authorized the Issuer to issue and sell the
Notes.
(n) All actions required to be taken by the Transferor, the Issuer or the Bank as a
condition to the offer and sale of the Notes as described herein or the consummation of any
of the transactions described in the Preliminary Prospectus, the Prospectus and the
Registration Statement have been or, prior to the Closing Date, will be taken.
(o) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the “TIA”), and complies as to form with the TIA and the rules and
regulations of the Commission thereunder.
(p) The representations and warranties made by (i) the Transferor in the TSA, the PSA,
the Trust Agreement and the Receivables Purchase Agreement or made in any Officer’s
Certificate of the Transferor delivered pursuant to any Program Document to which it is a
party and (ii) the Issuer in the Indenture, the TSA, the Administration Agreement or in any
TALF Certification (as defined in subsection 6(s)), were true and correct in all material
respects at the time made and will be true and correct in all material respects on and as
of the Closing Date, as if set forth herein, except that to the extent that any such
representation or warranty expressly relates to an earlier date, such representation or
warranty was true and correct at and as of such earlier date.
(q) The representations and warranties made by the Bank (i) in the Receivables
Purchase Agreement, and in its capacity as Servicer and Administrator, in the TSA, the PSA
and the Administration Agreement, respectively, or made in any Officer’s Certificate of the
Bank delivered pursuant to any Program Document to which it is a party, and (ii) in any
TALF Certification (as defined in subsection 6(s)), were true and correct in all material
respects at the time made and will be true and correct in all material respects on and as
of the Closing Date, as if set forth herein, except that to the extent that any such
representation or warranty expressly relates to an earlier date, such representation or
warranty was true and correct at and as of such earlier date.
(r) The Transferor agrees it has not granted, assigned, pledged or transferred and
shall not grant, assign, pledge or transfer to any Person a security interest in, or any
other right, title or interest in, the Receivables or the Collateral Certificate, except as
provided in the PSA and the TSA, and agrees to take all action required by the PSA and the
TSA in order to maintain the security interest in the Receivables and the Collateral
Certificate granted pursuant to the PSA and the TSA, as applicable.
(s) The Issuer has not granted, assigned, pledged or transferred, and the Transferor
shall not cause the Issuer to grant, assign, pledge or transfer to any Person, a security
interest in, or any other right, title or interest in, the Collateral Certificate, except
as provided in the Indenture.
(t) The Bank agrees it has not granted, assigned, pledged or transferred and shall not
grant, assign, pledge or transfer to any Person a security interest in, or any other
8
right, title or interest in, the Receivables, except as provided in the PSA or the
Receivables Purchase Agreement, as applicable, and agrees to take all action required by
the PSA or the Receivables Purchase Agreement, as applicable, in order to maintain the
security interests in the Receivables granted pursuant to the Receivables Purchase
Agreement and the PSA, as applicable. The Bank, as Administrator, shall (i) cause the
Issuer not to grant, assign, pledge or transfer to any Person a security interest in, or
any other right, title or interest in, the Collateral Certificate, except as provided in
the Indenture, and (ii) cause the Issuer to take all action required by the Indenture in
order to maintain the security interest in the Collateral Certificate granted pursuant to
the Indenture.
(u) Other than as set forth or contemplated in the Preliminary Prospectus and the
Prospectus, there are no legal or governmental proceedings or investigations pending or, to
its knowledge, threatened to which the Transferor, the Issuer, the Bank or any of their
respective Affiliates is or may be a party or to which any property of the Transferor, the
Issuer, the Bank or any of their respective Affiliates is or may be the subject (i) which,
if determined adversely to the Transferor, the Issuer, the Bank, or such Affiliate, as
applicable, could individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects, management, financial
position, stockholders’ equity or results of operations of the Transferor, the Issuer or
the Bank and their respective Affiliates, taken as a whole, or that would reasonably be
expected to materially adversely affect the interests of the Noteholders, (ii) asserting
the invalidity of this Agreement, any of the Program Documents, the Purchased Notes
Transaction or the Notes or (iii) seeking to prevent the issuance of the Notes or of any of
the transactions contemplated by this Agreement or any of the Program Documents, or the
Purchased Notes Transaction.
(v) No Early Amortization Event, and no event that would become an Early Amortization
Event after any applicable grace period has elapsed, exists with respect to any outstanding
Series of notes issued by the Issuer and no event has occurred that would constitute (after
the issuance of such notes) an Early Amortization Event or would become an Early
Amortization Event after any applicable grace period has elapsed.
(w) The Registration Statement has been filed with, and has been declared effective
by, the Commission.
(x) On each of the Initial Effective Date and the Effective Date, the Registration
Statement conformed in all material respects to the applicable requirements of the Act and
the Rules and Regulations of the Commission thereunder and the TIA and the rules and
regulations thereunder and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement, the Registration
Statement, the Preliminary Prospectus and the Prospectus conform, and at the time of filing
of the Preliminary Prospectus and the Prospectus pursuant to Rule 424(b), the Registration
Statement, the Preliminary Prospectus and the Prospectus will conform, in all material
respects with the requirements of the Act and the Rules and Regulations and the TIA and the
rules and regulations thereunder and no such
9
documents includes, or will include, any untrue statement of a material fact or omits,
or will omit, to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided, however,
that neither the Transferor nor the Bank makes any representations or warranties as to
statements in or omissions from any of such documents based upon written information
furnished to the Transferor or the Bank by the Underwriters specifically for use therein.
Each of the Transferor and the Bank hereby acknowledges that the only information provided
by the Underwriters for inclusion in the Registration Statement, the Preliminary Prospectus
and the Prospectus is set forth (i) on the cover page of the Prospectus Supplement on the
line across from “Price to public,” in the table under the heading “Class A Notes,” (ii) in
the table following the third paragraph under the heading “Underwriting” in the Prospectus
Supplement in the column labeled “Class A Notes” and (iii) in the penultimate paragraph
under the heading “Underwriting” in the Preliminary Prospectus Supplement and the
Prospectus Supplement (the “Underwriters’ Information”).
(y) The Time of Sale Information at the Time of Sale did not, and any amendment
thereof or supplement thereto, as of its respective date did not, and at the Closing Date
will 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, in light of
the circumstances under which they were made, not misleading (it being understood that no
representation or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear only in the
Prospectus); provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity with the
Underwriters’ Information.
(z) The Prospectus at the date of the Prospectus Supplement, and any amendment thereof
or supplement thereto, as of its respective date, did not and at the Closing Date will 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, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with the Underwriters’ Information.
(aa) (i) Other than the Preliminary Prospectus, the Prospectus and the Permitted
Additional Information (as defined in Section 10), the Transferor and the Bank (including
in each case its agents and representatives other than the Underwriters in their capacity
as such) have not made, used, prepared, authorized, approved or referred to (and have
caused the Issuer not to make, use, prepare, authorize, approve or refer to) and will not
make, use, prepare, authorize, approve or refer to (and will cause the Issuer not to make,
use, prepare, authorize or refer to) any “written communication” (as defined in Rule 405
under the Act) that constitutes an offer to sell or solicitation of an offer to buy the
Notes; provided, however, that the Transferor and the Bank may prepare and
disseminate a “written communication” (as defined in Rule 405 under the Act) in a form
agreed to by the parties hereto (the “Issuer Free Writing Prospectus”); (ii) the
Issuer Free Writing Prospectus will not, as of the date such Issuer Free Writing Prospectus
is disseminated, include any untrue statement of a material fact or omit any
10
material fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; (iii) the Issuer Free Writing
Prospectus shall contain a legend substantially in the form of and in compliance with Rule
433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing
prospectuses” under the Act; and (iv) the Issuer Free Writing Prospectus shall be filed
with the Commission pursuant to Rule 433 thereunder in the manner and within the time
period required by Rule 433(d)(1).
(bb) (i) It (and, with respect to the Transferor, the Issuer) did not enter into any
contract of sale for any Purchased Notes prior to the Time of Sale and (ii) it will convey
to each investor to whom Purchased Notes are sold by it during the period prior to the
filing of the final Prospectus, at or prior to the applicable time of any such contract of
sale with respect to such investor, the Preliminary Prospectus.
(cc) Since the respective dates as of which information is given in the Registration
Statement, the Preliminary Prospectus or the Prospectus, except as otherwise set forth
therein, there has not been any material adverse change in (i) the condition, financial or
otherwise, or in the earnings, business or operations, of the Bank, the Transferor or the
Issuer and (ii) the financial or statistical information contained in the Preliminary
Prospectus Supplement or the Prospectus Supplement under the captions “Receivables
Performance” and “The Trust Portfolio.”
(dd) The Transferor was not, on the date on which the first bona fide offer of the
Notes was made, an “ineligible issuer” as defined in Rules 405 under the Act.
(ee) The TALF Certification (as defined in subsection 6(s)) has been duly authorized,
executed and delivered by the Bank and the Issuer.
(ff) On the Closing Date, (i) the Transferor and the Bank will have taken all actions
(and caused the Issuer to have taken all actions) required by the FRBNY for the
Underwritten Notes to be eligible collateral under the TALF, and (ii) the Underwritten
Notes will be eligible collateral under the TALF; provided, however, that
none of the Transferor, the Bank and the Issuer makes any representation or warranty with
respect to the availability of or the eligibility of a borrower for loans under the TALF.
3. Purchase, Sale, Payment and Delivery of the Underwritten Notes.
(a) On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Transferor agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from
the Transferor, at a purchase price of 99.98758% of the principal amount thereof,
$245,000,000 aggregate principal amount of the Class A Notes, each Underwriter to purchase
the amounts shown on Schedule A hereto.
(b) The Transferor will cause the Issuer to deliver the Underwritten Notes to the
Underwriters against payment of the purchase price in immediately available funds, drawn to
the order of the Transferor, at the office of Xxxxx Xxxxx LLP, in Chicago,
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Illinois at 10:00 a.m., Chicago time, on August 13, 2009, or at such other time not
later than seven full business days thereafter as the Representatives and the Transferor
determine, such time being herein referred to as the “Closing Date.” The Class A
Notes to be delivered shall be represented by one or more definitive notes registered in
the name of Cede & Co., as nominee for The Depository Trust Company. The Notes will be
available for inspection by the Underwriters at the office at which the Notes are to be
delivered no later than five hours before the close of business in New York City on the
business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that after the Initial Effective Date,
the Underwriters propose to offer the Underwritten Notes for sale to the public (which may include
selected dealers) as set forth in the Prospectus. The Underwriters agree with the Transferor and
the Bank that the Underwriters will not sell the Underwritten Notes through an office physically
located in the State of Kansas, except to a person that is otherwise subject to Kansas income tax
or Kansas franchise tax.
5. Certain Agreements of the Transferor. The Transferor agrees with the Underwriters
that:
(a) Immediately following the execution of this Agreement, the Transferor will prepare
a Prospectus Supplement setting forth the amount of the Notes covered thereby and the terms
thereof not otherwise specified in the Base Prospectus, the price at which the Underwritten
Notes are to be purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the Transferor deems
appropriate. The Transferor will transmit the Prospectus, including such Prospectus
Supplement, to the Commission pursuant to Rule 424(b) by a means reasonably calculated to
result in filing with the Commission pursuant to Rule 424(b). The Transferor will not file
any amendment to the Registration Statement with respect to the Notes or supplement to the
Prospectus unless a copy has been furnished to each Representative for its review a
reasonable time prior to the proposed filing thereof or to which the Representatives shall
reasonably object in writing. The Transferor will advise the Representatives promptly of
(i) the effectiveness of any amendment or supplementation of the Registration Statement, the
Preliminary Prospectus or Prospectus, (ii) any request by the Commission for any amendment
or supplementation of the Registration Statement, the Preliminary Prospectus or the
Prospectus or for any additional information, (iii) the receipt by the Transferor of any
notification with respect to the suspension of qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purposes and (iv)
the institution by the Commission of any stop order proceeding in respect of the
Registration Statement, or of any prevention or suspension of the use of the Preliminary
Prospectus or the Prospectus, and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is required to be delivered
under the Act, any event occurs as a result of which the Preliminary Prospectus or
Prospectus, as then amended or supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein,
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in the light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Preliminary Prospectus or the Prospectus to comply
with the Act, the Transferor promptly will notify each Representative of such event and
prepare and file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Underwriters’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 6.
(c) As soon as practicable, the Transferor will cause the Issuer to make generally
available to the Noteholders an earnings statement or statements of the Issuer covering a
period of at least 12 months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated
thereunder; provided, that this covenant may be satisfied by posting monthly
investor reports for the Issuer for each month in such 12-month period on a publicly
available website.
(d) The Transferor will furnish to each Representative an electronic copy of the
Registration Statement, the Preliminary Prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available.
(e) The Transferor will endeavor to qualify the Underwritten Notes for sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably
request and the determination of the eligibility for investment of the Underwritten Notes
under the laws of such jurisdictions as the Representatives may designate and will continue
such qualifications in effect so long as required for the distribution of the Underwritten
Notes; provided, however, that the Transferor shall not be obligated to
qualify to do business in any jurisdiction where such qualification would subject the
Transferor to general or unlimited service of process in any jurisdiction where it is not
now so subject.
(f) So long as any Underwritten Note is outstanding, the Transferor will furnish, or
cause the Servicer to furnish, to each Representative copies of (i) each certificate and the
annual statements of compliance delivered to the WFNMT Trustee and each Rating Agency
pursuant to Section 3.5 of the PSA and the independent certified public accountants’
servicing reports furnished to the WFNMT Trustee, the Servicer and each Rating Agency
pursuant to Sections 3.6(a) and (b) of the PSA and (ii) copies of each certificate and the
annual statements of compliance delivered to the Owner Trustee, the Indenture Trustee and
each Rating Agency pursuant to Section 3.5 of the TSA and the independent certified public
accountants’ servicing reports furnished to the Indenture Trustee, the Servicer and the
Rating Agencies pursuant to Sections 3.6(a) and (b) of the TSA, by first class mail as soon
as practicable after such certificates, statements and reports are furnished to the WFNMT
Trustee, the Owner Trustee, the Indenture Trustee or the Rating Agencies, as the case may
be; provided, however, that the Transferor’s obligations pursuant to this
subsection 5(f) shall be deemed satisfied to the extent that such certificates, statements
or reports are filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), on or before the
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date the Transferor would otherwise be required to furnish to each Representative
copies of such certificates, statements or reports pursuant to this subsection 5(f).
(g) So long as any Underwritten Note is outstanding, the Transferor will furnish, or
cause the Servicer to furnish, to each Representative, by first-class mail as soon as
practicable (i) all documents concerning the Receivables, the Collateral Certificate or the
Notes distributed by the Transferor or the Servicer (under each of the PSA and TSA) to the
Noteholders, or filed with the Commission pursuant to the Exchange Act, (ii) any order of
the Commission under the Act or the Exchange Act applicable to the Issuer, to WFNMT, or to
the Transferor, or pursuant to a “no-action” letter obtained from the staff of the
Commission by the Transferor and affecting the Issuer, WFNMT, or the Transferor and (iii)
from time to time, such other information concerning the Issuer or WFNMT as the
Representatives may reasonably request.
(h) Whether or not the transactions contemplated by this Agreement are consummated or
this Agreement is terminated for any reason, except a default by the Underwriters hereunder,
the Transferor will pay all expenses incident to the performance of its obligations under
this Agreement (except as otherwise agreed in writing between the Transferor and the
Representatives) and will reimburse the Underwriters for any expenses incurred by them in
connection with qualification of the Underwritten Notes for sale and determination of the
eligibility of the Underwritten Notes for investment under the laws of such jurisdictions as
the Representatives designate, and for any fees charged by investment rating agencies for
the rating of the Notes and for any filing fee of the Financial Industry Regulatory
Authority, Inc. relating to the Notes. The Transferor and the Underwriters will each bear
their own respective fees and disbursements of counsel (which in the case of the Transferor
will include all legal fees relating to Blue Sky matters).
(i) To the extent, if any, that any of the ratings provided with respect to the Notes
by any Rating Agency are conditional upon the furnishing of documents or the taking of any
other actions by the Transferor, the Transferor shall furnish such documents and take any
such other actions as are reasonably necessary to satisfy such condition.
(j) The Transferor agrees with the Underwriters that for so long as any of the
Underwritten Notes remain outstanding, the Transferor will cause the Issuer to comply with
its obligations under paragraph 5 of the TALF Certification (as defined in subsection 6(s))
(unless waived by the FRBNY).
5A. Certain Agreements of the Bank. The Bank agrees with the Underwriters that for
so long as any of the Underwritten Notes remain outstanding, the Bank will comply with its
obligations under paragraph 5 of the TALF Certification (as defined in subsection 6(s))
(unless waived by the FRBNY).
6. Conditions of the Obligations of the Underwriters. The obligation of the
Underwriters to purchase and pay for the Underwritten Notes will be subject to the accuracy of the
representations and warranties given by the Transferor (as to itself and the Issuer) and the Bank
herein, to the accuracy of the statements of officers of the Transferor and the Bank made
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pursuant to the provisions hereof, to the performance by the Transferor and the Bank of their
respective obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received letters, dated as of the date of the
Preliminary Prospectus and as of the Closing Date and addressed to the Underwriters, from
Deloitte & Touche LLP, confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations thereunder,
substantially in the form heretofore agreed to and otherwise in form and in substance
satisfactory to the Representatives and their counsel.
(b) The Representatives shall have received (i) fully executed copies of this
Agreement, the Indenture and the other Program Documents duly executed and delivered by the
parties thereto and (ii) evidence satisfactory to the Representatives that the Purchased
Notes Transaction has been consummated.
(c) The Preliminary Prospectus and the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement;
and, prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Transferor or the Representatives, shall be
contemplated by the Commission. The Registration Statement, the Preliminary Prospectus and
the Prospectus, and each amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with the requirements of the
Act.
(d) Subsequent to the execution and delivery of this Agreement none of the following
shall have occurred: (i) any change, or any development involving a prospective change, in
or affecting particularly WFNMT, the Issuer, the business or properties of the Transferor or
the Bank which, in the judgment of the Underwriters make it impractical or inadvisable to
proceed with the completion and sale of and payment for the Underwritten Notes, (ii) trading
in securities generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended, limited or minimum prices shall have been
established on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction; (iii) a
banking moratorium shall have been declared by Federal or state authorities; (iv) any
material disruption in securities settlement or clearance services in the United States, the
direct effect of which on any party involved in the settlement or clearance of the Notes
would make it impractical to proceed with the completion and sale of and payment for the
Notes; or (v) the United States shall have become engaged in hostilities, there shall have
been an escalation of hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or any other substantial
national or international calamity or emergency which, in the judgment of the Underwriters,
the effect of such hostilities, escalation, declaration or other calamity or emergency makes
it impractical or inadvisable to proceed with the completion and sale of and payment for the
Underwritten Notes.
15
(e) The Representatives shall have received an opinion, dated the Closing Date, of Xxxx
X. Xxxxxx, General Counsel of the Bank, as counsel for the Transferor and the Bank,
satisfactory in form and substance to the Representatives and their counsel to the effect
that:
(i) The Bank is a national banking association in good standing and validly
existing under the laws of the United States of America; and each of the Transferor
and the Bank (each collectively referred to in this subsection 6(e) as a “WFN
Entity”) is duly qualified to do business and is in good standing under the laws
of each jurisdiction in which it is required to qualify, except where failure to so
qualify would not have a material adverse effect on such WFN Entity, and has full
power and authority to own its properties, to conduct its business as described in
the Registration Statement, the Preliminary Prospectus and the Prospectus, to enter
into and perform its obligations under the Program Documents to which it is a party,
and to consummate the transactions contemplated thereby.
(ii) Each of the Program Documents to which the Bank is a party, this
Agreement, and the TALF Certification, the Indemnity Undertaking, the Term
Asset-Backed Securities Loan Facility Undertaking and the Report of Management (each
as defined or described in subsections 6(s)-(u) below), has been duly authorized by
the Bank.
(iii) None of the execution and delivery of the Program Documents and this
Agreement by either WFN Entity that is party thereto, and the TALF Certification,
the Indemnity Undertaking, the Term Asset-Backed Securities Loan Facility
Undertaking and the Report of Management (each as defined or described in
subsections 6(s)-(u) below) to which the Bank is a party, the consummation of any of
the transactions contemplated therein, the fulfillment of the terms thereof, or the
consummation of the Purchased Notes Transaction violates, results in a material
breach of or constitutes a default under (A) any Requirements of Law under the laws
of the states of New York and Illinois and the federal law of the United States of
America (collectively, the “Included Laws”) applicable to such WFN Entity,
(B) any term or provision of any order known to such counsel to be currently
applicable to such WFN Entity of any court, regulatory body, administrative agency
or governmental body having jurisdiction over such WFN Entity or (C) any term or
provision of any indenture or other agreement or instrument known to such counsel to
which such WFN Entity is a party or by which either of them or any of their
properties are bound, except, in the case of clauses (B) and (C), to the extent such
violation, breach or default would not have a material adverse effect on the Notes,
the Collateral Certificate, or any WFN Entity.
(iv) Except as otherwise disclosed in the Preliminary Prospectus, the
Prospectus or the Registration Statement, there is no pending or, to the best of
such counsel’s knowledge, threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator with respect to WFNMT, the
Issuer, the Collateral Certificate, the Notes, any of the Program
16
Documents or this Agreement or any of the transactions contemplated therein, or
the Purchased Notes Transaction, with respect to a WFN Entity which, if adversely
determined, would have a material adverse effect on the Notes, the Collateral
Certificate, WFNMT or the Issuer or upon the ability of any WFN Entity to perform
its obligations under the Program Documents or this Agreement.
(v) The statements included in the Registration Statement, the Preliminary
Prospectus and the Prospectus describing statutes under the Included Laws, legal
proceedings, contracts and other documents relating to the WFN Entities, the
Accounts, the Receivables, the business of the Bank, the Transferor, WFNMT and the
Issuer are accurate in all material respects.
(f) The Representatives shall have received an opinion, dated the Closing Date, of
Xxxxx Xxxxx LLP, special counsel to the Transferor and the Bank, satisfactory in form and
substance to the Representatives and their counsel to the effect that:
(i) The Transferor is a limited liability company in good standing, duly
organized and validly existing under the laws of the State of Delaware and has full
limited liability company power and authority to execute, deliver and perform all of
its obligations under the Program Documents to which it is a party and to consummate
the transactions contemplated thereby, and to consummate the Purchased Notes
Transaction; the execution and delivery by the Transferor of this Agreement and the
Program Documents to which the Transferor is a party have been duly authorized by
all necessary action on the part of the Transferor; and each of the Program
Documents to which the Transferor or the Bank is a party, and in the case of the
Bank, in its capacity as Administrator on behalf of the Issuer, each of the TALF
Certification and Report of Management (each as defined in subsections 6(s) and (u)
respectively below), has been duly executed and delivered by and on behalf of such
party and the Program Documents (other than the Trust Agreement) constitute legal,
valid and binding obligations of the Transferor and the Bank, as the case may be,
under the laws of New York, enforceable against each such Person in accordance with
its terms, subject to (A) the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors’ rights generally and the
rights of creditors of national banking associations (including, without limitation,
the determination pursuant to 12 U.S.C. §1821(e) of any liability for the
disaffirmance or repudiation of any contract) and (B) general principles of equity
(regardless of whether considered in a proceeding in equity or at law), including
(without limitation) concepts of commercial, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief. Such counsel also notes that certain of the remedial provisions in the
Program Documents and this Agreement may be limited or rendered ineffective or
unenforceable in whole or in part under the laws of the State of New York, but the
inclusion of such provisions does not make the remedies provided by the Program
Documents or this Agreement inadequate for the practical realization of the
17
material rights and benefits purported to be provided thereby, except for the
economic consequences of procedural or other delay.
(ii) The execution and delivery by the Transferor of this Agreement and the
Program Documents to which it is a party, and the consummation of each of the
transactions contemplated thereby, and the consummation of the Purchased Notes
Transaction, will not violate any applicable law, statute or governmental rule or
regulation.
(iii) The Notes are in due and proper form and when executed, authenticated and
delivered as specified in the Indenture, and when delivered against payment of the
consideration for the Underwritten Notes specified in this Agreement and the
consideration for the Purchased Notes, will be validly issued and outstanding, will
constitute legal, valid and binding obligations of the Issuer, enforceable against
the Issuer in accordance with their terms and will be entitled to the benefits of
the Indenture, subject to (A) the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors’ rights generally and the
rights of creditors of national banking associations (including, without limitation,
the determination pursuant to 12 U.S.C. §1821(e) of any liability for the
disaffirmance or repudiation of any contract) and (B) general principles of equity
(regardless of whether considered in a proceeding in equity or at law), including
(without limitation) concepts of commercial, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief. Such counsel also notes that certain of the remedial provisions in the
Program Documents and this Agreement may be limited or rendered ineffective or
unenforceable in whole or in part under the laws of the State of New York, but the
inclusion of such provisions does not make the remedies provided by the Program
Documents or this Agreement inadequate for the practical realization of the material
rights and benefits purported to be provided thereby, except for the economic
consequences of procedural or other delay.
(iv) The Collateral Certificate is in due and proper form and is validly issued
and outstanding and entitled to the benefits of the PSA.
(v) The Registration Statement has become effective under the Act, and the
Preliminary Prospectus and the Prospectus have been filed with the Commission
pursuant to Rule 424(b) thereunder in the manner and within the time period required
by Rule 424(b). To the best of such counsel’s knowledge, no stop order suspending
the effectiveness of the Registration Statement or the Prospectus and no proceedings
for that purpose have been instituted or are contemplated by the Commission.
(vi) The execution and delivery by each of the Bank, the Issuer, WFNMT and the
Transferor of this Agreement and the Program Documents to which it is a party, and
the execution and delivery by the Bank, in its capacity as Administrator on behalf
of the Issuer, of the TALF Certification and Report of
18
Management (each as defined in subsections 6(s) and (u) respectively below),
does not, and the consummation by each of the Bank, the Issuer, WFNMT and the
Transferor of the transactions contemplated thereby to occur on the Closing Date
will not, require any consent, authorization or approval of, the giving of notice to
or registration, order, filing, qualification, license or permit of or with any
court or governmental entity, except such as may have been made and such as may be
required under the Federal securities laws, the blue sky laws of any jurisdictions
or the Uniform Commercial Code of any state.
(vii) The statements in the Base Prospectus under the headings “Risk Factors—If
a conservator or receiver were appointed for World Financial Network National Bank,
delays or reductions in payment of your notes could occur,” “The Sponsor—Certain
Regulatory Matters,” “The Issuing Entity— Perfection and Priority of Security
Interests” and “— Conservatorship and Receivership; Bankruptcy,” “The Trust
Portfolio— Consumer Protection Laws,” “ERISA Considerations” and “Federal Income Tax
Consequences” and the statements in the Prospectus Supplement under the headings
“Structural Summary—Tax Status” and “—ERISA Considerations” to the extent that they
constitute matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects.
(viii) This Agreement, the Program Documents, the Collateral Certificate and
the Notes conform in all material respects to the descriptions thereof contained in
the Prospectus.
(ix) The Indenture has been duly qualified under the TIA and complies as to
form with the TIA and the rules and regulations of the Commission thereunder. The
Issuer is not now, and immediately following the issuance of the Notes pursuant to
the Indenture and the application of proceeds therefrom as described in the
Prospectus will not be, required to be registered under the Investment Company Act
of 1940, as amended.
(x) The PSA need not be qualified under the TIA. WFNMT is not now, and
immediately following the issuance of the Notes pursuant to the Indenture and the
application of proceeds therefrom as described in the Prospectus will not be,
required to be registered under the Investment Company Act of 1940, as amended.
(xi) Subject to the discussion in the Base Prospectus under the heading
“Federal Income Tax Consequences,” (A) the Notes will properly be characterized as
indebtedness and neither WFNMT nor the Issuer will be treated as an association (or
publicly traded partnership) taxable as a corporation, for U.S. federal income tax
purposes and (B) the issuance of the Notes will not cause or constitute an event in
which gain or loss would be recognized by any holder of notes or Investor
Certificates of any outstanding series or class, for U.S. federal income tax
purposes.
19
(xii) For Texas corporate franchise tax purposes, Noteholders not otherwise
subject to Texas corporate franchise tax will not become subject to the Texas
corporate franchise tax solely by reason of their ownership of the Notes, together
with such other opinions related thereto as the Representatives reasonably request.
(xiii) For Illinois corporate franchise tax and corporate income tax (including
the personal property replacement income tax) purposes, neither WFNMT nor the Issuer
will be treated as an entity subject to tax and Noteholders not otherwise subject to
Illinois corporate franchise tax or Illinois individual or corporate income tax
(including the personal property replacement income tax) will not become subject to
the Illinois corporate franchise tax or Illinois individual or corporate income tax
(including the personal property replacement income tax) solely by reason of their
ownership of the Notes, together with such other opinions related thereto as the
Representatives reasonably request.
(xiv) The Indenture constitutes the legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with its terms under the laws
of the State of New York, subject to (A) the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors’ rights
generally and the rights of creditors of national banking associations (including,
without limitation, the determination pursuant to 12 U.S.C. §1821(e) of any
liability for the disaffirmance or repudiation of any contract) and (B) general
principles of equity (regardless of whether considered in a proceeding in equity or
at law), including (without limitation) concepts of commercial, reasonableness, good
faith and fair dealing, and the possible unavailability of specific performance or
injunctive relief. Such counsel also notes that certain of the remedial provisions
in the Program Documents and this Agreement may be limited or rendered ineffective
or unenforceable in whole or in part under the laws of the State of New York, but
the inclusion of such provisions does not make the remedies provided by the Program
Documents or this Agreement inadequate for the practical realization of the material
rights and benefits purported to be provided thereby, except for the economic
consequences of procedural or other delay.
(xv) The Registration Statement, as of the Effective Date (including the
Prospectus, as included in the Registration Statement pursuant to Rule 430B(f)(1)
and (2) under the Act, as of such Effective Date), complied as to form in all
material respects with the requirements of the Act and the Rules and Regulations
under the Act, except that such counsel need not express any opinion as to the
financial and statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement and, except as and to the extent set forth in
paragraphs (vii) and (viii), such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Registration
Statement or the Prospectus.
20
(xvi) If the FDIC were appointed as conservator or receiver for the Bank (a)
the FDIC regulation entitled “Treatment by the Federal Deposit Insurance Corporation
as Conservator or Receiver of Financial Assets Transferred by an Insured Depository
Institution in Connection with a Securitization or Participation,” 12 CFR §360.6
(the “Rule”) would be applicable to the transfers of Receivables by the Bank
to the Transferor under the Receivables Purchase Agreement, (b) under the Rule, the
FDIC, acting as conservator or receiver for the Bank could not, by exercise of its
authority to disaffirm or repudiate contracts under 12 U.S.C. §1821(e), reclaim or
recover the Receivables or the proceeds thereof from Transferor or recharacterize
the Receivables or the proceeds thereof as property of the Bank or of the
conservatorship or receivership for the Bank, (c) the FDIC, acting as conservator
or receiver for the Bank could not, by exercise of its authority under 12 U.S.C. §§
1821(d)(9), 1821(n)(4)(I), or 1823(e), avoid the Receivables Purchase Agreement or
the transfers thereunder; provided, however, that such counsel need
not offer any opinion as to whether, in receivership, the FDIC or any creditor of
the Bank may reclaim or recover the Receivables from the Transferor or WFNMT, or
recharacterize the Receivables as property of the Bank or of the conservatorship or
receivership for the Bank, if the Noteholders receive payment of the principal
amount of their Notes and the interest earned thereon (at the interest rates
specified in respect of such Notes) through the date the Noteholders are so paid.
(xvii) If the FDIC were to be appointed as a conservator or receiver for the
Bank a court having jurisdiction over the conservatorship or receivership would
determine that (a) the transfers of Receivables by the Bank to the Transferor under
the Receivables Purchase Agreement constitutes a sale of such Receivables to the
Transferor by the Bank, as opposed to a secured loan or a grant of a security
interest to secure a loan and (b) the rights, titles, powers, and privileges of the
FDIC as conservator or receiver of the Bank would not extend to the Receivables.
(xviii) Certain matters relating to the transfer of the Receivables from the
Bank to the Transferor under the Receivables Purchase Agreement and from the Bank to
WFNMT under the PSA, as applicable, together with such other opinions related
thereto as the Representatives reasonably request.
(xix) Certain matters relating to the transfer of the Receivables from the
Transferor to WFNMT under the PSA.
(xx) The perfection of the security interest in favor of WFNMT in the
Receivables and the proceeds thereof transferred to WFNMT from the Transferor under
the PSA.
(xxi) Certain matters relating to the transfer of the Collateral Certificate
from the Transferor to the Issuer under the TSA.
21
(xxii) The perfection of the security interest in favor of the Issuer in the
Collateral Certificate and the proceeds thereof transferred to the Issuer from the
Transferor under the TSA.
(xxiii) The perfection of the security interest in favor of the Indenture
Trustee in the Collateral Certificate and the proceeds thereof.
(xxiv) The provisions of the Indenture are effective under the NY UCC to create
in favor of the Indenture Trustee a security interest in the Issuer’s rights in the
Collateral and in any identifiable proceeds thereof. To the extent that The Bank of
New York Mellon, as agent for the Indenture Trustee, has physical possession of the
Collateral Certificate in the State of New York, and such Collateral Certificate has
been registered in the name of the Indenture Trustee upon the books maintained for
that purpose by or on behalf of WFNMT, or endorsed to the Indenture Trustee or in
blank, the Indenture Trustee’s security interest in the Collateral Certificate will
be perfected by “control” (within the meaning of the NY UCC). Further assuming the
Indenture Trustee does not have notice of any adverse claim (within the meaning of
NY UCC § 8-102(a)(1)), upon becoming perfected in the foregoing manner the Indenture
Trustee’s security interest in the Collateral Certificate will be free of any
adverse claim.
Such counsel also shall state that they have participated in conferences with
representatives of the Transferor and the Bank and their independent public accountants, the
Representatives and counsel to the Underwriters concerning the Registration Statement, the
Preliminary Prospectus and the Prospectus, and that, on the basis of the information such
counsel gained in the course of performing its professional engagement, nothing came to its
attention that caused it to believe that (a) the Registration Statement, at the Effective
Date, contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
(b) the Preliminary Prospectus, as of the Time of Sale, considered together with the
statements in the Prospectus with respect to blanks and other items identified in the
Preliminary Prospectus as to be completed in the Prospectus, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made,
not misleading; or (c) the Prospectus, as of the date of the Prospectus Supplement and as of
the Closing Date, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that it need not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus (except as stated in paragraphs (vii) and (viii) above), and it
need not express any belief with respect to the financial statements or other financial,
statistical or accounting data contained in or omitted from the Registration Statement, the
Preliminary Prospectus or the Prospectus, or, in the case of the Preliminary Prospectus,
with respect to the omission of pricing and price-dependent information, which information
shall of necessity appear only in the Prospectus.
22
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 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 the Representatives and
their counsel, and (B) as to matters of fact, to the extent deemed proper and as stated
therein, on certificates of responsible officers of the Issuer, the Bank, the Transferor and
public officials.
(g) The Representatives shall have received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP,
special counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to such matters relating to this transaction as the Representatives may require, and
the Transferor shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxxxxx LLC, special Ohio counsel for the Transferor and the Bank, satisfactory in
form and substance to the Representatives and their counsel with respect to (i) certain
matters relating to the transfer of the Receivables from the Bank to the Transferor under
the Receivables Purchase Agreement, (ii) the perfection of the security interest in favor of
the Indenture Trustee, as assignee of the Transferor, in the Receivables and the proceeds
thereof and (iii) for purposes of the Ohio corporation franchise tax, the income tax imposed
on trusts, commercial activity tax, or dealers in intangibles tax, neither WFNMT nor the
Issuer will be treated as an entity subject to such taxes, and (iv) Noteholders not
otherwise subject to Ohio corporation franchise tax or Ohio personal income tax will not
become subject to the Ohio corporation franchise tax or Ohio personal income tax by reason
of their ownership of the Notes.
(i) The Representatives shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxxxxx LLC, special District of Columbia counsel for the Transferor and the Bank,
satisfactory in form and substance to the Representatives and their counsel with respect to
(i) certain matters relating to the transfer of the Receivables from the Bank to the
Transferor under the Receivables Purchase Agreement and (ii) the perfection of the security
interest in favor of the Indenture Trustee, as assignee of the Transferor in the Receivables
and the proceeds thereof.
(j) The Representatives shall have received a certificate from each of the Transferor
and the Bank, dated the Closing Date, of a Treasurer, Vice President or more senior officer
of the Transferor or the Bank, as the case may be, in which such officer, to the best of
his/her knowledge after reasonable investigation, shall state that (i) the representations
and warranties of the Transferor and the Bank, as the case may be, in this Agreement are
true and correct on and as of the Closing Date, (ii) the Transferor or the Bank, as the case
may be, has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (iii) the representations
and warranties of the Transferor or the Bank, as the case may be, contained in this
Agreement, the Program Documents and, with respect to the Bank only, any TALF Certification
(as defined in subsection 6(s)) to which it is a party are true and
23
correct as of the dates specified herein and therein, (iv) 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, (v) nothing has come to
such officers’ attention that would lead such officers to believe that the Prospectus as of
the date of the Prospectus Supplement, as of the date of any amendment or supplement
thereto, and as of the Closing Date, or the Preliminary Prospectus as of its date, as of the
date of any amendment or supplement thereto, and as of the Time of Sale, contained or
contains an untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (vi) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial position or results
of operation of the Bank’s credit card business except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(k) The Representatives shall have received an opinion of Xxxxxxxx, Xxxxxx & Xxxxxx,
P.A., counsel to the Owner Trustee, dated the Closing Date, satisfactory in form and
substance to the Representatives and their counsel, to the effect that:
(i) U.S. Bank is duly formed and validly existing as a national banking
association under the laws of the United States of America and had at all relevant
times and currently has the power and authority to execute, deliver and perform the
Instrument of Resignation and perform the Trust Agreement and to consummate the
transactions contemplated thereby, and, on behalf of the Issuer, to execute and
deliver the Indenture Supplement and the TSA and to consummate the transactions
contemplated by the Indenture Supplement, the TSA and the Master Indenture.
(ii) The Instrument of Resignation has been duly authorized, executed and
delivered by U.S. Bank and the Trust Agreement, to the extent assumed by U.S. Bank
from Chase, constitutes a legal, valid and binding obligation of U.S. Bank,
enforceable against U.S. Bank in accordance with its terms.
(iii) The Indenture Supplement has been duly authorized, executed and delivered
by the Owner Trustee on behalf of the Issuer.
(iv) None of (x) the execution, delivery or performance of the Instrument of
Resignation and performance of the Trust Agreement by U.S. Bank, (y) as Owner
Trustee on behalf of the Issuer, the execution and delivery of the Indenture
Supplement, and performance of the Indenture Supplement, TSA and the Master
Indenture, or (z) the consummation of any of the transactions by U.S. Bank or the
Owner Trustee, as the case may be, contemplated thereby, required or 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 U.S. Bank
(other than the filing of the Certificate of Trust (as defined in such counsel’s
opinion), which Certificate of Trust has been duly filed).
24
(v) None of (x) the execution, delivery and performance of the Instrument of
Resignation and performance of the Trust Agreement by U.S. Bank, (y) as Owner
Trustee on behalf of the Issuer, the execution and delivery of the Indenture
Supplement, and performance of the Indenture Supplement, TSA and the Master
Indenture, or (z) the consummation of any of the transactions by U.S. Bank or the
Owner Trustee, as the case may be, contemplated thereby, is in violation of the
articles of association or bylaws of U.S. Bank or of any law, governmental rule or
regulation of the State of Delaware or of the United States of America governing the
trust powers of U.S. Bank or, to such counsel’s knowledge, without independent
investigation, any indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to which it is
a party or by which it is bound or, to such counsel’s knowledge, without independent
investigation, of any judgment or order applicable to U.S. Bank.
(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) The Representatives shall have received an opinion of Xxxxxxxx, Xxxxxx & Xxxxxx,
P.A., special Delaware counsel to the Issuer, dated the Closing Date, satisfactory in form
and substance to the Representatives and their counsel, to the effect that:
(i) The Issuer has been duly formed and is validly existing in good standing as
a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. 3801 et seq.
(referred to in this subsection 6(l) as the “Trust Act”).
(ii) The Trust Agreement, with respect to the Owner Trustee to the extent
assumed by the Owner Trustee from Chase, 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 TSA, the Indenture and the Administration Agreement (the TSA, the Indenture
and the Administration Agreement collectively, the “Trust Documents”), and
the TALF Certification and the Report of Management (each as defined in subsections
6(s) and (u) respectively below) (the TALF Certification and the Report of
Management collectively referred to in this subsection 6(l) as the “Additional
Trust Documents”), the issuance of the Notes, and the granting of the Collateral
) (as defined in the Master Indenture) to the Indenture Trustee as security for the
Notes has been duly authorized by all necessary trust action on the part of the
Issuer.
(iv) Under the Trust Act and the Trust Agreement, the Issuer has (A) the trust
power and authority to execute, deliver and perform its obligations under
25
the Trust Documents, the Additional Trust Documents and the Notes, (B) duly
authorized, executed and delivered the Trust Documents and the Notes, and (c) has
duly authorized the Additional Trust Documents.
(v) Neither the execution, delivery and performance by the Issuer of the Trust
Documents, the Additional Trust Documents or the Notes, nor the consummation by the
Issuer of any of the transactions 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, other
than the filing of the Certificate of Trust (as defined in such counsel’s opinion)
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 Master Indenture.
(vi) Neither the execution, delivery and performance by the Issuer of the Trust
Documents, the Additional Trust Documents or the Notes, nor the consummation by the
Issuer of the transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule, or regulation of the State of Delaware applicable to
the Issuer.
(vii) Under Section 3805(b) of the Trust Act, no creditor of the Transferor in
its capacity as beneficial owner of the Issuer shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with respect to,
the property of the Issuer except in accordance with the terms of the Trust
Agreement.
(viii) Under Sections 3808(a) and (b) of the Trust Act, the Issuer may not be
terminated or revoked by the Transferor, and the dissolution, termination or
bankruptcy of the Transferor shall not result in the termination or dissolution of
the Issuer, except to the extent otherwise provided in the Trust Agreement.
(ix) The Owner Trustee is not required to hold legal title to the Trust Estate
(as defined in the Master Indenture) in order for the Issuer to qualify as a valid
statutory trust under the Trust Act.
(x) The Transferor is the sole beneficial owner of the Issuer.
(xi) With respect to the Issuer and the Collateral Certificate or the
Receivables: (A) there is no document, stamp or other similar excise 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 Issuer or upon the issuance of 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 Issuer; (C) the classification of the Issuer
for United States federal income tax purposes will be determinative of the
classification of the Issuer for Delaware income tax purposes and assuming that
26
the Issuer will not be classified taxed as an association or as a publicly
traded partnership taxable as a corporation for United States federal income tax
purposes, the Issuer will not be subject to Delaware income tax and Noteholders who
are not otherwise subject to Delaware income tax will not be subject to Delaware
income 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 Issuer would be based upon “federal taxable income,” and for the
purposes of ascertaining such income, the amount of such income for United States
federal income tax purposes would be determinative, whether the characterization of
the transaction is that of a sale or a loan.
(xii) The Transferor Interest (as defined in the Master Indenture) is entitled
to the benefits of the Trust Agreement.
(m) The Representatives shall have received an opinion of Xxxxx, Xxxxxx & Xxxxxx, X.X.,
counsel to the Indenture Trustee, dated the Closing Date, satisfactory in form and substance
to the Representatives and their counsel, to the effect that:
(i) BNYMTCNA is a national banking association organized, validly existing and
in good standing under the laws of the United States of America and the Indenture
Trustee is authorized and qualified to accept the trusts imposed by the Indenture
and to act as Indenture Trustee under the Indenture.
(ii) The acknowledgment by the Indenture Trustee of the TSA has been duly
authorized, executed and delivered by the Indenture Trustee. The Indenture Trustee
has duly authorized, executed and delivered the Indenture. Assuming the due
authorization, execution and delivery thereof by the other parties thereto, the
Indenture is the legal, valid and binding obligation of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its terms, subject to
bankruptcy and insolvency laws and general principles of equity.
(iii) BNYMTCNA has duly authenticated the Notes.
(iv) BNYMTCNA is duly authorized and empowered to exercise trust powers under
applicable law.
(v) None of (A) the execution and authentication of the Notes, (B) the
acknowledgment of the TSA by BNYMTCNA or (C) the execution, delivery and performance
of the Indenture by the Indenture Trustee conflicts with or will result in a
violation of (i) any law or regulation of the United States of America or the State
of New York governing the banking or trust powers of BNYMTCNA or (ii) the articles
of association or bylaws of BNYMTCNA.
(vi) No approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the banking or trust powers of BNYMTCNA was or is required
in connection with the execution and delivery by the Indenture Trustee of
27
the Indenture or the performance by the Indenture Trustee of the terms of the
Indenture or the acknowledgment of the TSA.
(n) The Representatives shall have received an opinion of Xxxxx, Xxxxxx & Xxxxxx, X.X.,
counsel to the WFNMT Trustee, dated the Closing Date, satisfactory in form and substance to
the Representatives and their counsel, to the effect that:
(i) BNYMTCNA is a national banking association organized, validly existing and
in good standing under the laws of the United States of America and the WFNMT
Trustee is authorized and qualified to accept the trusts imposed by the PSA and to
act as WFNMT Trustee under the PSA.
(ii) The WFNMT Trustee has duly authorized, executed and delivered the PSA.
Assuming the due authorization, execution and delivery thereof by the other parties
thereto, the PSA is the legal, valid and binding obligation of the WFNMT Trustee,
enforceable against the WFNMT Trustee in accordance with its terms, subject to
bankruptcy and insolvency laws and general principles of equity.
(iii) The WFNMT Trustee has duly authenticated the Collateral Certificate.
(iv) BNYMTCNA is duly authorized and empowered to exercise trust powers under
applicable law.
(v) None of (A) the execution and authentication of the Collateral Certificate,
and (B) the execution, delivery and performance of the PSA by the WFNMT Trustee
conflicts with or will result in a violation of (i) any law or regulation of the
United States of America or the State of New York governing the banking or trust
powers of BNYMTCNA or (ii) the articles of association or bylaws of BNYMTCNA.
(vi) No approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the banking or trust powers of BNYMTCNA was or is required
in connection with the execution and delivery by the WFNMT Trustee of the PSA or the
performance by the WFNMT Trustee of the terms of the PSA.
(o) The Representatives shall have received an opinion of Xxxxxxx, Fane, Xxxxx & Xxxxxx
LLP, special Kansas counsel for WFN LLC, dated the Closing Date, satisfactory in form and
substance to the Representatives and their counsel, to the effect that (i) if WFNMT or the
Issuer were determined to be a foreign corporation or a foreign business trust, it would be
subject to an annual Kansas franchise tax up to a maximum of $20,000 per year, but only if
it either (A) qualifies or registers to do business in the State of Kansas or (B) transacts
business in the State of Kansas and if WFNMT or the Issuer were determined not to be one of
these entities, it will not be subject to Kansas franchise tax; (ii) for Kansas income tax
purposes, each of WFNMT and the Issuer will not be treated as an entity subject to tax; and
(iii) a Noteholder which is not otherwise subject to Kansas income tax or Kansas franchise
tax, which has not acquired its Notes through an
28
underwriter’s office physically located in the State of Kansas, and which has no connections
to the State of Kansas except any connection that may exist solely by virtue of either (A)
its ownership of a Note or (B) the collection of Receivables and the performance of other
servicing activities in Kansas by an entity unrelated to any such Noteholder, will not
become subject to the Kansas income tax or Kansas franchise tax solely by reason of its
ownership of one or more of the Notes, together with such other opinions related thereto as
the Representatives reasonably request. For purposes of subsection 6(o)(iii) only, the term
“Noteholder” does not include the Issuer, WFNMT, WFN LLC and an affiliate of any of them.
(p) The Representatives shall have received an opinion of Xxxx Xxxxxxxx P.C., special
Colorado tax counsel to WFN LLC, dated the Closing Date, satisfactory in form and substance
to the Representatives and their counsel, to the effect that (i) for Colorado income tax
purposes, neither WFNMT nor the Issuer will be treated as an entity subject to tax and (ii)
Noteholders, not otherwise subject to Colorado income tax, will not become subject to
Colorado income tax merely by reason of their ownership of the Notes, together with such
other opinions related thereto as the Representatives reasonably request.
(q) The Representatives shall have received a certificate from the Indenture Trustee
certifying that The Bank of New York Mellon, as agent for the Indenture Trustee, holds the
Collateral Certificate in New York, New York and that such Collateral Certificate has been
registered in the name of the Indenture Trustee upon the books maintained for that purpose
by or on behalf of World Financial Network Credit Card Master Trust or endorsed to the
Indenture Trustee or in blank.
(r) The Representatives shall have received evidence satisfactory to the
Representatives that the Class A Notes shall be rated “AAA” by Standard & Poor’s Ratings
Services, a division of the McGraw Hill Companies, Inc., “AAA” by Fitch, Inc. and “AAA” by
DBRS Inc.
(s) On or prior to the date that the Prospectus is filed with the Commission, the
Representatives shall have received evidence that the Bank and the Issuer have (i) executed
a Certification as to TALF Eligibility, in the form most recently prescribed by the FRBNY
under the TALF prior to such date (the “TALF Certification”), and (ii) included such
executed TALF Certification in the Final Prospectus to be filed with the Commission.
(t) No later than four business days before the Closing Date, (i) the Representatives
shall have received evidence that the Bank and any other applicable entity have executed an
Indemnity Undertaking, in the form most recently prescribed by the FRBNY under the TALF
prior to such date (the “Indemnity Undertaking”), and have delivered such Indemnity
Undertaking, together with the related TALF Certification, to the FRBNY in the manner
prescribed by the FRBNY, with a copy to the Representatives, and (ii) each Primary Dealer
that has entered into an MLSA in connection with the TALF and is acting as agent, on or
prior to the Closing Date, for purchasers of the Underwritten Notes, shall have received a
Term Asset-Backed Securities Loan Facility Undertaking
29
dated no later than four business days before the Closing Date, in the form attached as
Exhibit A hereto, with such changes as may be agreed to by the Bank, the Transferor and the
Issuer (solely for purposes of this subsection 6(t)(ii) the “Issuer Parties”) and
such Primary Dealer and executed by the Issuer Parties, under which the Issuer Parties will
agree to indemnify such Primary Dealer for certain losses as set forth therein.
(u) No later than four business days before the Closing Date, the Representatives shall
have received (i) an executed copy of an Auditor Attestation prepared by Deloitte & Touche
LLP, in the form most recently prescribed by the FRBNY under the TALF prior to such date
(the “Auditor Attestation”), (ii) a copy of the Report of Management on Compliance,
in the form most recently prescribed by the FRBNY under the TALF prior to such date,
executed by the Bank and the Issuer (the “Report of Management”) and attached to
such Auditor Attestation and (iii) evidence that such Auditor Attestation and Report of
Management has been delivered to the FRBNY in the manner prescribed by the FRBNY.
(v) The Representatives shall have received a reliance letter, dated as of the Closing
Date and addressed to the Underwriters, of Xxxxx Xxxxx LLP, special counsel to the
Transferor and the Bank, satisfactory in form and substance to the Representatives and their
counsel, to the effect that each Primary Dealer who is also an Underwriter, in its capacity
as a Primary Dealer, and subject to the limitations contained in Section 8, will be entitled
to rely on the negative assurances letter described in the paragraph immediately following
subsection 6(f)(xxiv), or such negative assurances letter will provide for such reliance.
(w) On the Closing Date, (i) the Transferor, the Bank and the Issuer shall have taken
all action required by the FRBNY for the Underwritten Notes to be eligible collateral under
the TALF and (ii) the Underwritten Notes shall be eligible collateral under the TALF.
(x) The Transferor will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably request.
7. Indemnification and Contribution.
(a) The Transferor and the Bank, jointly and severally, will indemnify and hold
harmless each Underwriter (including in its capacity as a Primary Dealer) and each Person
who controls any Underwriter (including in its capacity as a Primary Dealer) within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and against (i) any
losses, claims, damages or liabilities, joint or several, to which the Underwriters
(including in their capacities as Primary Dealers) or any of them 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 Preliminary
Prospectus (it being understood that such indemnification with respect to the Preliminary
Prospectus does not include any loss, claim, damage or
30
liability which arises solely as the result of the omission of pricing and
price-dependent information, which information shall of necessity appear only in the
Prospectus), 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 or necessary to
make the statements made therein, in light of the circumstances under which they were made,
not misleading, and will reimburse each Underwriter (including in its capacity as a Primary
Dealer) and each Person who controls any Underwriter (including in its capacity as a Primary
Dealer) within the meaning of Section 15 of the Act or Section 20 of the Exchange Act for
any actual legal or other expenses reasonably incurred by the Underwriter (including in its
capacity as a Primary Dealer) in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that Transferor and the Bank will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with the Underwriters’ Information; and
(ii) any losses, claims, damages or liabilities (or actions in respect thereof) that arise
out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Issuer Free Writing Prospectus, or that arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary to make the
statements made therein, in light of the circumstances under which they were made, not
misleading, and will reimburse any legal or other expenses reasonably incurred by each
Underwriter (including in its capacity as a Primary Dealer) and each Person who controls any
Underwriter (including in its capacity as a Primary Dealer) within the meaning of Section 15
of the Act or Section 20 of the Exchange Act in connection with investigating or defending
any such loss, claim, damage, liability or action.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Issuer, the Transferor and the Bank, and each of their respective directors and officers
and each Person who controls the Transferor and the Bank, respectively, within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act (each, a “WFN Indemnified
Party”), against any losses, claims, damages or liabilities to which the Transferor or
the Bank, as the case may be, 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 Preliminary Prospectus (it being understood
that such indemnification with respect to the Preliminary Prospectus does not include any
loss, claim, damage or liability which arises solely as the result of the omission of
pricing and price-dependent information, which information shall of necessity appear only in
the Prospectus), the Prospectus or any amendment or supplement thereto, or arise out of or
are based upon the omission or the alleged omission to state therein a material fact
necessary to make the statements made 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,
with respect to the Underwriters, such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with the
Underwriters’ Information, and will reimburse any actual legal or other expenses reasonably
incurred by the Transferor, the Bank and each other WFN
31
Indemnified Party in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless each
WFN Indemnified Party (i) with respect to the failure on the part of such Underwriter to
deliver to any investor with whom such Underwriter entered into a Contract of Sale prior to
the time of such Contract of Sale, the Preliminary Prospectus, or if the Prospectus is then
available, the Prospectus; provided, however, that, to the extent such
Preliminary Prospectus or Prospectus, as the case may be, has been amended or supplemented,
such indemnity shall not inure to the benefit of any such WFN Indemnified Party unless such
amendment or supplement shall have been delivered to such Underwriter in a reasonable period
of time prior to the time of such Contract of Sale and (ii) against any losses, claims,
damages or liabilities (or actions in respect thereof) that arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained in any
Underwriter Free Writing Prospectus (as defined below), or that arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary to make the
statements made therein, in light of the circumstances under which they were made, not
misleading, and will reimburse any legal or other expenses reasonably incurred by the
Issuer, the Transferor, the Bank or any other WFN Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that no Underwriter will 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, or any such omission or alleged omission
from, in any Underwriter Free Writing Prospectus in reliance upon and in conformity with (i)
any written information furnished to the related Underwriter by the Transferor, the Issuer
or the Bank specifically for use therein or approved for use therein or (ii) the Preliminary
Prospectus or Prospectus, which information was not corrected by information subsequently
provided by the Transferor, the Issuer or the Bank to the related Underwriter prior to the
time of use of such Underwriter Free Writing Prospectus.
(d) Promptly after receipt by an indemnified party under this section of notice of the
commencement of any action or the assertion by a third party of a claim, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party in writing 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 except and to the extent of
any prejudice to such indemnifying party arising from such failure to provide such notice.
In case any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party under this
section for any legal or other expenses subsequently
32
incurred by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to the indemnified party. No
indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such
action and does not include a statement as to, or an admission of, fault, culpability or
failure to act by or on behalf of any indemnified party.
(e) If the indemnification provided for in this section is unavailable or insufficient
to hold harmless an indemnified party under subsection (a), (b) or (c) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in subsection (a), (b)
or (c) above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Transferor and the Bank on the one hand and the Underwriters on the other
from the offering of the Underwritten Notes, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Transferor and the Bank on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Transferor and the Bank on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) of the Notes received by the Transferor bear to the
total underwriting discounts and commissions received by the Underwriters with respect to
the Underwritten Notes. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Transferor
and the Bank or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission with
respect to the Notes. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this subsection (e)
shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this subsection (e),
the Underwriters shall not be required to contribute any amount in excess of the amount by
which the total underwriting discount as set forth on the cover page of the Prospectus
Supplement exceeds the amount of damages which the Underwriters have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission
with respect to the Notes. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
33
(f) The obligations of the Transferor and the Bank under this Section shall be in
addition to any liability which the Transferor or the Bank may otherwise have and shall
extend, upon the same terms and conditions, to each Person, if any, who controls any
Underwriter (including in its capacity as a Primary Dealer) within the meaning of the Act;
and the obligations of any Underwriter under this Section shall be in addition to any
liability that such Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Transferor or the Bank, to each officer of the
Transferor who has signed the Registration Statement and to each Person, if any, who
controls the Transferor or the Bank within the meaning of the Act.
8. Limitation of Representations and Covenants of the Transferor and the Bank. The
representations, covenants and agreements made by the Transferor and the Bank to any Primary
Dealer, including, without limitation, those made in this Agreement, shall extend to a Primary
Dealer only in connection with the performance by such Primary Dealer of its obligations under the
TALF, and do not extend to and may not be relied upon by any direct or indirect purchaser or owner
of the Underwritten Notes, or any other Person claiming by or through any such purchaser or owner
or any third party beneficiary, for any purpose or in any circumstance, whether on the theory that
a Primary Dealer has acted or acts as their agent or otherwise.
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Transferor and the Bank or
their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriters, the Transferor and the Bank or any of their respective
representatives, officers or directors or any controlling person, and will survive delivery of and
payment for the Underwritten Notes. If this Agreement is terminated or if for any reason other
than default by the Underwriters the purchase of the Underwritten Notes by the Underwriters is not
consummated, the Transferor and the Bank shall remain responsible for the expenses to be paid by
them pursuant to Section 5 and the respective obligations of the Transferor, the Bank and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason the purchase of the
Underwritten Notes by the Underwriters is not consummated other than solely because of the
occurrence of any event specified in clause (ii), (iii), (iv) or (v) of Section 6(d), the
Transferor and the Bank will reimburse the Underwriters for all out-of-pocket expenses reasonably
incurred by them in connection with the offering of the Underwritten Notes. For the avoidance of
doubt, the obligations of each of the Transferor, the Bank and the Underwriters under this
Agreement are solely the obligations of each such person and in no case will constitute a claim
against the Issuer or its assets.
10. Offering Communications.
(a) Other than (i) the Preliminary Prospectus, (ii) the Prospectus and (iii) any
materials included in one or more “road shows” (as defined in Rule 433(h) under the Act)
relating to the Notes authorized or approved by the Bank (the “Permitted Additional
Information”), each Underwriter severally represents, warrants and agrees with the
Transferor and the Bank that it has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act) that constitutes an offer
34
to sell or solicitation of an offer to buy the Notes, including, but not limited to any
“ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB
under the Act unless such Underwriter has obtained the prior written approval of the
Transferor; provided, however, each Underwriter may prepare and convey to
one or more of its potential investors one or more “written communications” (as defined in
Rule 405 under the Act) containing no more than the following: (i) information contemplated
by Rule 134 under the Act and included or to be included in the Preliminary Prospectus or
the Prospectus, (ii) the weighted average life, pot/retention allocation, expected
settlement date, and expected pricing information with respect to the Notes and (iii) a
column or other entry showing the status of the subscriptions for the Notes and/or expected
pricing parameters of the Notes (each such written communication, an “Underwriter Free
Writing Prospectus”); provided, that no such Underwriter Free Writing Prospectus
would be required to be filed with the Commission.
(b) Each Underwriter severally represents, warrants and agrees with the Transferor and
the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not,
as of the date such Underwriter Free Writing Prospectus was conveyed or
delivered to any prospective purchaser of Notes, include any untrue
statement of a material fact or omit any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading; provided, however, that no
Underwriter makes such representation, warranty or agreement to the extent
such misstatements or omissions were the result of any inaccurate or
incomplete information which was included in the Preliminary Prospectus, the
Prospectus or any written information furnished to the related Underwriter
by the Transferor, the Issuer or the Bank specifically for use therein or
approved for use therein, which information was not corrected by information
subsequently provided by the Transferor, the Issuer or the Bank to the
related Underwriter prior to the time of use of such Underwriter Free
Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall
contain a legend substantially in the form of and in compliance with Rule
433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for
“free writing prospectuses” under the Act.
(c) Each Underwriter severally represents and agrees (i) that it did not enter into any
contract of sale for any Notes prior to the Time of Sale and (ii) that it will, at any time
that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the
Act) with respect to the Notes, convey to each investor to whom Notes are sold by it during
the period prior to the filing of the final Prospectus (as notified to the Underwriters by
the Transferor), at or prior to the applicable time of any such contract of sale with
respect to such investor, the Preliminary Prospectus.
35
11. Obligations of the Underwriters.
(a) Each Underwriter represents and agrees that it has not and will not, directly or
indirectly, offer, sell or deliver any of the Underwritten Notes or distribute the
Preliminary Prospectus, the Prospectus or any other offering materials relating to the
Underwritten Notes in or from any jurisdiction except under circumstances that will, to the
best of its knowledge and belief, result in compliance with any applicable laws and
regulations thereof and that, to the best of its knowledge and belief, will not impose any
obligations on the Transferor, the Bank or the Issuer except as set forth herein.
(b) Each Underwriter further represents and agrees that it will not, in connection with
the initial distribution of the Underwritten Notes, transfer, deposit or otherwise convey
any Underwritten Notes into a trust or other type of special purpose vehicle that issues
securities or other instruments backed in whole or in part by, or that represents interests
in, such Underwritten Notes unless either (i) the Underwritten Notes so transferred,
together with any other securities issued by the Transferor, the Bank, any of their
affiliates or any trust to which the Transferor or the Bank transfers receivables, make up
less than 10% of the assets of such special purpose vehicle or (ii) the Bank gives its prior
written consent to such conveyance, which consent shall not be unreasonably withheld.
(c) Each Underwriter agrees that, if, an electronic copy of the Prospectus is delivered
by an Underwriter for any purpose, such copy shall be the same electronic file containing
the Prospectus in the identical form transmitted electronically to such Underwriter by or on
behalf of the Transferor specifically for use by such Underwriter pursuant to this Section
11(c); for example, if the Prospectus is delivered to an Underwriter by or on behalf of the
Transferor in a single electronic file in .pdf format, then such Underwriter will deliver
the electronic copy of the Prospectus in the same single electronic file in .pdf format.
12. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Underwritten Notes agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount of Underwritten
Notes set forth opposite their names in Schedule A hereto bear to the aggregate amount of
Underwritten Notes set forth opposite the names of all such remaining Underwriters) the
Underwritten Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Underwritten
Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Underwritten Notes set forth in Schedule A hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of such Underwritten Notes, and if such nondefaulting Underwriters do not purchase
all such Underwritten Notes, this Agreement will terminate without liability to any nondefaulting
Underwriter, the Transferor or the Bank. In the event of a default by any Underwriter as set forth
in this Section 12, the Closing Date shall be postponed for such period, not exceeding seven days,
as the Representatives shall determine in order that the required
36
changes in the Registration Statement, the Preliminary Prospectus and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter for its liability, if any, to the Transferor and the Bank and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
13. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telecopied and confirmed to:
RBS Securities Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxx XxXxxxxx
Fax: (000) 000-0000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxx XxXxxxxx
Fax: (000) 000-0000
and
Barclays Capital Inc.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
14. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
16. Financial Services Act. Each Underwriter represents and warrants to, and agrees
with, the Transferor and the Bank that it (i) has complied and shall comply with all applicable
provisions of the Financial Services Markets Act 2000 (the “FSMA”) with respect to anything
done by it in relation to the Underwritten Notes and (ii) has only communicated or caused to be
communicated and it will only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the FSMA), received by it in
connection with the issue or sale of any Underwritten Notes in circumstances in which section 21(1)
of the FSMA does not apply to the Transferor or the Issuer.
17. Non-petition Covenant. Notwithstanding any prior termination of this Agreement,
each of the Underwriters and each WFN Indemnified Party agree that it shall not at any time
acquiesce, petition or otherwise invoke or cause the Issuer or the Transferor to invoke the process
of the United States of America, any State or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative functions of or
37
pertaining to government for the purpose of commencing or sustaining a case by or against the
Issuer or the Transferor under a federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or the Transferor or all or any part of the property or assets of the Issuer
or the Transferor or ordering the winding up or liquidation of the affairs of the Issuer or the
Transferor.
18. Representatives. The Representatives will act for the several Underwriters in
connection with this Agreement and the transactions contemplated hereby and any action undertaken
under this Agreement taken by the Representatives will be binding upon the Underwriters.
19. No Fiduciary Duty. The Bank and the Transferor acknowledge and agree that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Bank and the Transferor with respect to the transaction contemplated hereby (including in
connection with determining the terms of the offering) and not as financial advisors or fiduciaries
to, or agents of, the Bank, the Transferor, the Issuer or any other person. Additionally, neither
the Representatives nor any other Underwriter is advising the Bank, the Transferor, the Issuer or
any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Bank, the Transferor and the Issuer shall consult with their own advisors
concerning such matters and shall be responsible for making their own independent investigation and
appraisal of the transactions contemplated hereby, and neither the Representatives nor any other
Underwriter shall have any responsibility or liability to the Bank, the Transferor or the Issuer
with respect thereto. Any review by the Representatives or any Underwriter of the Bank, the
Transferor, the Issuer and the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Representatives or such Underwriter,
as the case may be, and shall not be on behalf of the Bank, the Transferor, the Issuer or any other
person.
[Signature Page Follows]
38
If you are in agreement with the foregoing, please sign two counterparts hereof and return one
to the Transferor whereupon this letter and your acceptance shall become a binding agreement among
the Transferor, the Bank and the Underwriters.
Very truly yours, | ||||||
WFN CREDIT COMPANY, LLC | ||||||
By | /s/ Xxxxxx X. Xxxxxxx | |||||
Name: Xxxxxx X. Xxxxxxx | ||||||
Title: President | ||||||
WORLD FINANCIAL NETWORK NATIONAL BANK |
||||||
By | /s/ Xxxxxx X. Xxxx | |||||
Name: Xxxxxx X. Xxxx | ||||||
Title: Assistant Treasurer |
(Signature Page to Series 2009-D Underwriting Agreement)
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof:
hereby confirmed and accepted
as of the date hereof:
BARCLAYS CAPITAL INC.,
as an Underwriter and as a Representative
of the several Underwriters set forth herein
as an Underwriter and as a Representative
of the several Underwriters set forth herein
By
|
/s/ Xxxxxxxx Xxxxxx | |||
Name: Xxxxxxxx Xxxxxx | ||||
Title: Managing Director |
RBS SECURITIES INC.,
as an Underwriter and as a Representative
of the several Underwriters set forth herein
as an Underwriter and as a Representative
of the several Underwriters set forth herein
By
|
/s/ Xxxxxx XxXxxxxx | |||
Name: Xxxxxx XxXxxxxx | ||||
Title: Managing Director |
(Signature Page to Series 2009-D Underwriting Agreement)
SCHEDULE A
Class A Notes
Principal Amount of | ||||
Underwriters | Class A Notes | |||
Barclays Capital Inc. |
$ | 49,000,000 | ||
RBS Securities Inc. |
$ | 49,000,000 | ||
X.X. Xxxxxx Securities Inc. |
$ | 49,000,000 | ||
RBC Capital Markets Corporation |
$ | 49,000,000 | ||
Xxxxx Fargo Securities, LLC |
$ | 49,000,000 | ||
Total |
$ | 245,000,000 |
EXHIBIT A
FORM OF TERM ASSET-BACKED SECURITIES LOAN FACILITY
UNDERTAKING
UNDERTAKING
[ • ][ • ], 2009
This Term Asset-Backed Securities Loan Facility Undertaking (this “Undertaking”) is
executed as of the date first written above by WORLD FINANCIAL NETWORK NATIONAL BANK (the
“Bank”) and WFN CREDIT COMPANY, LLC (the “Transferor” and, together with the
Sponsor, the “Issuer Parties”). Reference is xxxxxx made to (i) the final prospectus
supplement, dated [ • ][ • ], 2009 (the “Prospectus Supplement”), and accompanied
by the base prospectus, dated [ • ][ • ], 2009 (the “Base Prospectus”)
(collectively, the “Offering Memorandum”), relating to the $[ • ] aggregate principal
amount of World Financial Network Credit Card Master Note Trust Class A Fixed Rate Asset Backed
Notes, Series 2009-D (the “Specified Securities”), issued by the Issuer, (ii) the Master
Agreement (the “Master Agreement”), by and among the Federal Reserve Bank of New York, as
lender (“Lender”), the primary dealers party thereto (the “Primary Dealers” and
each, individually, a “Primary Dealer”) and The Bank of New York Mellon, as administrator
and as custodian, executed in connection with the Term Asset-Backed Securities Loan Facility (the
“TALF Program”), and (iii) the certifications and indemnities given by the Issuer Parties
to Lender in connection with the Specified Securities (the “Issuer Documents”).
SECTION 1. Definitions. Capitalized terms used but not defined herein shall have the
meanings specified in the Master Agreement. In addition, as used herein, the following terms shall
have the following meanings (such definition to be applicable to both the singular and plural forms
of such terms):
“Dealer Indemnified Party” means a Relevant Dealer and each person, if any, who
controls any Relevant Dealer within the meaning of either Section 15 of the Securities Act of 1933,
as amended or Section 20 of the Securities Exchange Act of 1934, as amended.
“Relevant Dealer” means any Primary Dealer that is acting as agent on behalf of a
Borrower with respect to a Relevant Loan.
“Relevant Loan” means any Loan for which any of the Specified Securities have been
pledged to Lender as Collateral and for which the settlement date is the date of issuance of the
Specified Securities.
“TALF Provisions” means the portions of the Offering Memorandum that describe, or are
relevant to, the qualification of the Specified Securities as Eligible Collateral, including
without limitation the descriptions of the terms of the Specified Securities and the assets
generating collections or other funds from which the Specified Securities are to be paid.
A-1
SECTION 2. The Issuer Parties hereby represent, warrant and agree, for the benefit of each
Relevant Dealer, as follows:
(a) The Specified Securities constitute Eligible Collateral.
(b) The certifications contained in the Issuer Documents are true and correct, and the Issuer
Parties will promptly pay and perform their obligations under the Issuer Documents.
(c) No statement or information contained in the TALF Provisions is untrue as to any material
fact or omits any material fact necessary to make the same not misleading.
SECTION 3. Indemnity. (a) Each Issuer Party, jointly and severally, will indemnify
and hold harmless each Dealer Indemnified Party from and against any losses, claims, damages or
liabilities, joint or several, to which the Dealer Indemnified Parties or any of them may become
subject, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an Issuer Party’s breach of this Undertaking or the Issuer
Documents, and will reimburse each Dealer Indemnified Party for any actual legal or other expenses
reasonably incurred by the Dealer Indemnified Party in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred.
(b) Promptly after receipt by a Dealer Indemnified Party of notice of the commencement of any
action or the assertion by a third party of a claim, such Dealer Indemnified Party will notify each
Issuer Party in writing of the commencement thereof; but the omission so to notify any such Issuer
Party will not relieve it or any of them from any liability which they or any of them may have to
any Dealer Indemnified Party except to the extent of any prejudice to any such Issuer Party arising
from such failure to provide such notice. In case any such action is brought against any Dealer
Indemnified Party and it notifies the Issuer Party of the commencement thereof, the Issuer Party
will be entitled to participate therein and, to the extent that it may wish, jointly with any other
Issuer Party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such Dealer Indemnified Party (who shall not, except with the consent of the Dealer
Indemnified Party, be counsel to the Issuer Party), and after notice from the Issuer Party to such
Dealer Indemnified Party of its election so to assume the defense thereof, and after acceptance of
counsel by the Dealer Indemnified Party, the Issuer Party will not be liable to such Dealer
Indemnified Party under this Section for any legal or other expenses subsequently incurred by such
Dealer Indemnified Party in connection with the defense thereof other than reasonable costs of
investigation, unless the Issuer Party has failed within a reasonable time to retain counsel
reasonably satisfactory to the Dealer Indemnified Party. No Issuer Party shall, without the prior
written consent of the Dealer Indemnified Party, effect any settlement of any pending or threatened
action in respect of which any Dealer Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Dealer Indemnified Party unless such settlement includes
an unconditional release of such Dealer Indemnified Party from all liability on claims that are the
subject matter of such action and does not include a statement as to, or an admission of, fault,
culpability or failure to act by or on behalf of any Dealer Indemnified Party.
A-2
(c) This indemnity remains an obligation of each Issuer Party notwithstanding termination of
the Master Agreement or the TALF Program or payment in full of the Relevant Loans, and is binding
upon each Issuer Party’s successors and assigns. Each Dealer Indemnified Party’s right to
indemnification hereunder shall be enforceable against each Issuer Party directly, without any
obligation to first proceed against any third party for whom such Dealer Indemnified Party may act,
and irrespective of any rights or recourse that such Issuer Party may have against any such third
party.
SECTION 4. The Issuer Parties hereby acknowledge (a) the existence of the Master Agreement and
the terms thereof and (b) that the Relevant Dealers are obtaining the Relevant Loans, pledging the
Specified Securities as collateral therefor and undertaking obligations, in each case as agents on
behalf of the Borrowers with respect thereto in reliance on the representations, warranties,
covenants and indemnities of the Issuer Parties set forth in this Undertaking. This Undertaking is
for the sole benefit of the Dealer Indemnified Parties in connection with the performance by a
Related Dealer of its obligations with respect to the TALF Program and not in its capacity as an
underwriter of the Specified Securities, and may not be relied upon by (i) the Dealer Indemnified
Parties for any other purpose or (ii) any direct or indirect purchaser or owner of the Specified
Securities, or any other Person claiming by or through any such purchaser or owner or any third
party beneficiary, for any purpose or in any circumstance, whether on the theory that the Primary
Dealers act as their agents or otherwise.
SECTION 5. THIS UNDERTAKING SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6. This Undertaking may be executed in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together constitute one and the same
Undertaking.
SECTION 7. Each Dealer Indemnified Party agrees that it shall not at any time acquiesce,
petition or otherwise invoke or cause the Issuer or the Transferor to invoke the process of the
United States of America, any State or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to
government for the purpose of commencing or sustaining a case by or against the Issuer or the
Transferor under a federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or
the Transferor or all or any part of the property or assets of the Issuer or the Transferor or
ordering the winding up or liquidation of the affairs of the Issuer or the Transferor.
A-3
IN WITNESS WHEREOF, the Issuer Parties have duly executed this Undertaking as of the day and
year first written above.
WORLD FINANCIAL NETWORK NATIONAL BANK | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
WFN CREDIT COMPANY, LLC | ||||||
By: | ||||||
Name: | ||||||
Title: |
A-4