October 30, 2002 EXHIBIT 1.1
World Financial Network Credit Card Master Note Trust
$468,000,000 Class A Floating Rate Asset Backed Notes, Series 2002-A
$51,000,000 Class B Floating Rate Asset Backed Notes, Series 2002-A
$81,000,000 Class C Floating Rate Asset Backed Notes, Series 2002-A
UNDERWRITING AGREEMENT
----------------------
X.X. Xxxxxx Securities Inc.,
as Representative of the
Underwriters set forth herein (the "Representative")
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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
$468,000,000 aggregate principal amount of World Financial Network Credit Card
Master Note Trust Class A Floating Rate Asset Backed Notes, Series 2002-A (the
"Class A Notes"), $51,000,000 aggregate principal amount of World Financial
Network Credit Card Master Note Trust Class B Floating Rate Asset Backed
Notes, Series 2002-A (the "Class B Notes"), and $81,000,000 aggregate
principal amount of World Financial Network Credit Card Master Note Trust
Class C Floating Rate Asset Backed Notes, Series 2002-A (the "Class C Notes"
and, together with the Class A Notes and the Class B Notes, the "Notes").
The Issuer is a Delaware statutory trust formed pursuant to (a) a Trust
Agreement, dated as of August 1, 2001 (the "Trust Agreement"), between WFN
LLC, as transferor (the "Transferor"), and Chase Manhattan Bank USA, National
Association ("Chase"), as owner trustee (the "Owner Trustee"), and (b) the
filing of a certificate of trust with the Secretary of State of Delaware on
July 27, 2001. The Notes will be issued pursuant to a Master Indenture, dated
as of August 1, 2001 (the "Master Indenture"), between the Issuer and BNY
Midwest Trust Company, as indenture trustee (the "Indenture Trustee"), as
supplemented by the Series 2002-A Indenture Supplement with respect to the
Notes, to be dated as of November 7, 2002 (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, amended and restated as of September 17, 1999 and amended
and restated a second time as of August 1, 2001 (as heretofore amended, the
"Amended and Restated Pooling and Servicing Agreement"), among the Transferor,
World Financial Network National Bank (the "Bank"), as servicer (the
"Servicer"), and BNY Midwest Trust Company (successor-in-interest to the
corporate trust administration of Xxxxxx Trust and Savings Bank), as trustee
(the "WFNMT Trustee"), and the Collateral Series Supplement to the Amended and
Restated Pooling and Servicing Agreement, dated as of August 21, 2001, as the
same is to be amended as of November 7, 2002 (as heretofore amended, and as
the same may be further amended on or prior to the Closing Date (as
hereinafter defined), 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 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 (as amended, 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 the same is to be amended as of November 7, 2002 (as heretofore amended,
and as the same may be further amended on or prior to the Closing Date, the
"TSA"), among the Transferor, the Servicer, and the Issuer.
The Bank has agreed to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the TSA, 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 (the "Administration Agreement"), between the Bank, as administrator (in
such capacity, the "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.
The Transferor and the Bank hereby agree, severally and not jointly, with
the underwriters for the Class A Notes listed on Schedule A hereto (the "Class
A Underwriters"), the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters") and the underwriter for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriter" and, together with the
Class A Underwriters and Class B Underwriters, the "Underwriters") as follows:
2. Representations and Warranties of the Transferor and the Bank. Each
of the Transferor (the representations and warranties as to the Transferor
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
with, the Underwriters 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
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its business as described in the Registration Statement (as hereinafter
defined) and the Prospectus (as hereinafter defined), 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 Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, 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 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.
(c) The execution, delivery and performance of each of the Program
Documents to which it is a party, and the incurrence of the obligations
herein and therein set forth and the consummation of the transactions
contemplated hereby and thereby, and with respect to the Transferor, the
issuance of the Notes and the Collateral Certificate, have been duly and
validly authorized by the Transferor and the Bank, as applicable, by all
necessary action on the part of the Transferor and the Bank, as
applicable.
(d) This Agreement has been duly authorized, executed and delivered
by the Transferor and the Bank.
(e) Each of the Program Documents has been, or on or before the
Closing Date will be, executed and delivered by the Transferor 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
and the Bank, as applicable, enforceable against the Transferor 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 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 Noteholders, will be able to enforce the
remedies of a secured party under the UCC.
(f) The Notes have been duly authorized and 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
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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
(A) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting creditors'
rights generally, (B) 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 (C) the
unenforceability under certain circumstances of provisions indemnifying a
party against liability or requiring contribution from a party for
liability where such 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 Prospectus and the Registration
Statement.
(g) 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 Prospectus and the
Registration Statement.
(h) Neither the Transferor nor 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 or
the Bank.
(i) None of the issuance and sale of the Notes, the issuance of the
Collateral Certificate or the execution and delivery by the Transferor 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 does or will (i) violate any Requirement of
Law presently in effect, applicable to it or its properties or by which
it or its properties are or may be bound or affected, (ii) conflict with,
or result in a breach of, or constitute a default under, any indenture,
contract, agreement, 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 (iii) 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 or the Bank.
(j) All approvals, authorizations, consents, orders and other
actions of any Person or of any court or other governmental body or
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official required in connection with the execution and delivery by the
Transferor 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 have been or will have been obtained on or before the
Closing Date.
(k) The Bank has authorized the conveyance of the Receivables to the
Transferor and WFNMT, as applicable; the Transferor has authorized the
conveyance of 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.
(l) All actions required to be taken by the Transferor 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 Prospectus
and the Registration Statement have been or, prior to the Closing Date,
will be taken.
(m) 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 Securities and Exchange Commission
(the "Commission") thereunder.
(n) The representations and warranties made by 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 will be true and correct
in all material respects at the time made and on and as of the Closing
Date as if set forth herein, except that to the extent that any such
representation or warranty expressly relates to an earlier date, such
representation or warranty is true and correct at and as of such earlier
date.
(o) The representations and warranties made by the Bank 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 will be true and
correct in all material respects at the time made and on and as of the
Closing Date as if set forth herein, except that to the extent that any
such representation or warranty expressly relates to an earlier date,
such representation or warranty is true and correct at and as of such
earlier date.
(p) The 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.
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(q) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person
a security interest in, or any other right, title or interest in, the
Receivables, except as provided in the 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.
(r) A registration statement on Form S-3 (Nos. 333-60418 and
333-60418-01), including a form of prospectus and such amendments thereto
as may have been filed prior to the date hereof, relating to the Notes
and the offering thereof in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "Act"), has been filed with, and has been
declared effective by, the Commission. If any post-effective amendment to
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent such
amendment has been declared effective by the Commission. For purposes of
this Agreement, "Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective
Date" means the date of the Effective Time. Such registration statement,
as amended at the Effective Time, is hereinafter referred to as the
"Registration Statement." The Transferor proposes to file with the
Commission pursuant to Rule 424(b) ("Rule 424(b)") under the Act a
supplement (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, are
hereinafter referred to as the "Prospectus".
(s) On 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 (the "Rules and
Regulations") 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 and the Prospectus conform, and at the time of
filing of the Prospectus pursuant to Rule 424(b) the Registration
Statement and the Prospectus will conform, in all material respects with
the requirements of the Act and the Rules and Regulations and the TIA and
the rules and regulations thereunder and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions
from either of such documents based upon written information furnished to
the Transferor or the Bank by the Underwriters specifically for use
therein. Each of the Transferor and the Bank hereby acknowledges that (i)
the only information provided by the Class A Underwriters for inclusion
in the Registration Statement and the Prospectus is set forth on the
cover page of the Prospectus Supplement in the table under the heading
"Class A Notes" and on the line across from "Price to public," in the
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table listing the Class A Underwriters and the Principal Amount of Class
A Notes under the heading "Underwriting" in the Prospectus Supplement, in
the table following the third paragraph under the heading "Underwriting"
in the Prospectus Supplement in the column labeled "Class A Notes", and
in the penultimate paragraph under the heading "Underwriting" in the
Prospectus Supplement (the "Class A Underwriters' Information"), (ii) the
only information provided by the Class B Underwriters for inclusion in
the Registration Statement and the Prospectus is set forth on the cover
page of the Prospectus Supplement in the table under the heading "Class B
Notes" and on the line across from "Price to public," in the table
listing the Class B Underwriters and the Principal Amount of Class B
Notes and under the heading "Underwriting" in the Prospectus Supplement,
in the table following the third paragraph under the heading
"Underwriting" in the Prospectus Supplement in the column labeled "Class
B Notes", and in the penultimate paragraph under the heading
"Underwriting" in the Prospectus Supplement (the "Class B Underwriters'
Information") and (iii) the only information provided by the Class C
Underwriter for inclusion in the Registration Statement and the
Prospectus is set forth on the cover page of the Prospectus Supplement in
the table under the heading "Class C Notes" and on the line across from
"Price to public," in the table listing the Class C Underwriter and the
Principal Amount of Class C Notes and under the heading "Underwriting" in
the Prospectus Supplement, in the table following the third paragraph
under the heading "Underwriting" in the Prospectus Supplement in the
column labeled "Class C Notes", and in the penultimate paragraph under
the heading "Underwriting" in the Prospectus Supplement (the "Class C
Underwriter's Information").
(t) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise set
forth therein, there has not been any material adverse change in (i) the
condition, financial or otherwise, or in the earnings, business or
operations, of the Bank or the Transferor and (ii) the financial or
statistical information contained in the Prospectus Supplement under the
captions "Receivables Performance" and "The Trust Portfolio."
3. Purchase, Sale, Payment and Delivery of the 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 Class A Underwriters, and the
Class A Underwriters agree to purchase from the Transferor, at a purchase
price of 99.675% of the principal amount thereof, $468,000,000 aggregate
principal amount of the Class A Notes, each Class A Underwriter to
purchase the amounts shown on Schedule A hereto.
(b) 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 Class B Underwriters, and the
Class B Underwriters agree to purchase from the Transferor, at a purchase
price of 99.600% of the principal amount thereof, $51,000,000 aggregate
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principal amount of the Class B Notes, each Class B Underwriter to
purchase the amounts shown on Schedule A hereto.
(c) 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 Class C Underwriter, and the
Class C Underwriter agrees to purchase from the Transferor, at a purchase
price of 99.525% of the principal amount thereof, $81,000,000 aggregate
principal amount of the Class C Notes.
(d) The Transferor will cause the Issuer to deliver the Notes to the
Underwriters against payment of the purchase price in immediately
available funds, drawn to the order of the Transferor, at the office of
Xxxxx, Brown, Xxxx & Maw, in Chicago, Illinois at 10:00 a.m., Chicago
time, on November 7, 2002, or at such other time not later than seven
full business days thereafter as the Representative and the Transferor
determine, such time being herein referred to as the "Closing Date." Each
of the Class A Notes, the Class B Notes and the Class C Notes so 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 Effective
Date, the Underwriters propose to offer the Notes for sale to the public
(which may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the 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 such Notes are to be
purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the
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 of the Registration Statement with respect to the
Notes or supplement to the Prospectus unless a copy has been furnished to
the Representative for its review a reasonable time prior to the proposed
filing thereof or to which the Representative shall reasonably object in
writing. The Transferor will advise the Representative promptly of (i)
the effectiveness of any amendment or supplementation of the Registration
Statement or Prospectus, (ii) any request by the Commission for any
amendment or supplementation of the Registration Statement or the
Prospectus or for any additional information, (iii) the receipt by the
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
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the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Transferor promptly will notify the 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 Trust to
make generally available to the Noteholders an earnings statement or
statements of the Trust 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.
(d) The Transferor will furnish to the Representative copies of the
Registration Statement (one of which will be signed and will include all
exhibits), the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
the Representative reasonably requests.
(e) The Transferor will endeavor to qualify the Notes for sale under
the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and the determination of the
eligibility for investment of the Notes under the laws of such
jurisdictions as the Representative may designate and will continue such
qualifications in effect so long as required for the distribution of the
Notes; provided, 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 Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representative copies of each
certificate and the annual statements of compliance delivered to (i) the
WFNMT Trustee and each Rating Agency pursuant to Section 3.5 of the PSA
and independent certified public accountant's servicing reports furnished
to the WFNMT Trustee, the Servicer and each Rating Agency pursuant to
Sections 3.6(a) and (b) and (ii) the Owner Trustee, the Indenture Trustee
and each Rating Agency pursuant to Section 3.5 of the TSA and independent
certified public accountant's servicing reports furnished to the
Indenture Trustee, the Servicer and the Rating Agencies pursuant to
Sections 3.6(a) and (b) of the TSA, by first class mail as soon as
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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.
(g) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the 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 Securities Exchange Act of 1934, as
amended (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 Representative 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 Representative) and will reimburse the Underwriters for any
expenses incurred by them in connection with qualification of the Notes
for sale and determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as the Representative designates and
for any fees charged by investment rating agencies for the rating of the
Notes and the Collateral Certificate and for any filing fee of the
National Association of Securities Dealers, 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 and the Collateral Certificate 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.
6. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties by the Transferor and the Bank
herein, to the accuracy of the statements of officers of Transferor and the
Bank made 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 Representative shall have received a letter, dated the date
of the Prospectus and addressed to the Underwriters, from Deloitte &
Touche, confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and Regulations
thereunder, substantially in the form heretofore agreed to and otherwise
in form and in substance satisfactory to the Representative and its
counsel.
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(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Transferor or the Representative, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement none
of the following shall have occurred: (i) any change, or any development
involving a prospective change, in or affecting particularly 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 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; and (iv) the United States shall have
become engaged in hostilities, there shall have been an escalation of
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States 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 Notes.
(d) The Representative shall have received an opinion, dated the
Closing Date, of Xxxx X. Xxxx, General Counsel for Alliance Data Systems
Corporation, as counsel for the Transferor and the Bank, satisfactory in
form and substance to the Representative and its counsel to the effect
that:
(i) Each of the Transferor and the Bank (each collectively
referred to in this subsection 6(d) as a "WFN Entity") is duly
qualified to do business 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
on such WFN Entity, and has full power and authority to own its
properties, to conduct its business as described in the Registration
Statement 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 and this Agreement has been
duly authorized, executed and delivered by each WFN Entity that is a
party thereto.
(iii) Neither the execution and delivery of the Program
Documents and this Agreement by either WFN Entity that is party
thereto nor the consummation of any of the transactions contemplated
11
therein nor the fulfillment of the terms thereof, violates, results
in a material breach of or constitutes a default under (A) any
Requirements of Law under the Delaware Limited Liability Company
Act, as amended, Texas state law 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 me
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 me 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 Prospectus (and any
supplement thereto) 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 or any of the Program
Documents or any of the transactions contemplated therein 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.
(v) The statements included in 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.
(e) The Representative shall have received an opinion, dated the
Closing Date, of Xxxxx, Xxxxx, Xxxx & Xxx, special counsel to the
Transferor and the Bank, satisfactory in form and substance to the
Representative and its 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; 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 Program Documents to which the
Transferor or the Bank is a party constitutes the legal, valid and
binding agreement 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
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other 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. ss.1821(e) of any liability for the
disaffirmance or repudiation of any contract), (B) 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
12
law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability where
such indemnification or contribution is contrary to public policy.
(ii) This Agreement constitutes the legal, valid and binding
obligation of the Transferor and the Bank under the laws of the
State of New York, enforceable against the Transferor and the Bank
in accordance with its terms, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other 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. ss.1821(e) of any liability for the
disaffirmance or repudiation of any contract), (B) 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 (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability where
such indemnification or contribution is contrary to public policy.
(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 specified in this
Agreement, they will be validly issued and outstanding, will
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms and
will be entitled to the benefits of the Indenture, subject to (A)
the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) 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 (C) the unenforceability under certain
circumstances of provisions indemnifying a party against liability
or requiring contribution from a party for liability where such
indemnification or contribution is contrary to public policy.
(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 Prospectus has 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 has been issued and no proceedings for that purpose have
been instituted or are pending or threatened or contemplated by the
Commission, and the Registration Statement and the Prospectus, and
13
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.
(vi) No approval, authorization, consent, order, registration,
filing, qualification, license or permit of or with any court or
governmental agency or body is required for the consummation by the
Bank, the Transferor, WFNMT or the Issuer of the transactions
contemplated in the Program Documents, except such as have been
obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction inside the United States in connection
with the purchase and distribution of the Notes by the Underwriters.
(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," "Material Legal Aspects of the
Receivables," "ERISA Considerations" and "Federal Income Tax
Consequences" and the statements in the Prospectus Supplement under
the headings "Structural Summary--Tax Status" and "--ERISA
Considerations" to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been reviewed by us and
are correct in all material respects.
(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 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 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 and 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.
14
(xii) For Texas corporate franchise tax purposes, neither WFNMT
nor the Issuer will be treated as an entity subject to tax and
Noteholders not otherwise subject to Texas corporate franchise tax
will not become subject to the Texas corporate franchise tax by
reason of their ownership of the Notes, together with such other
opinions related thereto as the Representative reasonably requests.
(xiii) The Indenture constitutes the legal, valid and binding
obligation of the Issuer under the laws of the State of New York,
subject to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws
affecting creditors' rights generally, (B) 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 (C) the unenforceability under certain
circumstances of provisions indemnifying a party against liability
or requiring contribution from a party for liability where such
indemnification or contribution is contrary to public policy.
(xiv) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations under the Act, except that in each case such counsel
need not express any opinion as to the financial and statistical
data included therein or excluded therefrom or the exhibits to the
Registration Statement and, except as and to the extent set forth in
paragraphs (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.
(xv) 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 ss.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 could not, by exercise of its authority
to disaffirm or repudiate contracts under 12 U.S.C. ss.1821(e),
reclaim or recover the Receivables or the proceeds thereof from
Transferor or the Trust or recharacterize the Receivables or the
proceeds thereof as property of the Bank or of the conservatorship
or receivership for the Bank, (c) neither the FDIC (acting for
itself as a creditor or as representative of the Bank or its
shareholders or creditors) nor any creditor of the Bank would have
the right, under any bankruptcy or insolvency law applicable in the
conservatorship or receivership of the Bank, to avoid the transfers
of Receivables by the Bank to the Transferor under the Receivables
Purchase Agreement, to recover the Receivables, or to require the
Receivables to be turned over to the FDIC or such creditor
(including by way of any order consolidating the assets and
liabilities of the Transferor with those of the Bank) and (d) there
is no other power exercisable by the FDIC as conservator or receiver
for the Bank that would permit the FDIC as such conservator or
receiver to reclaim or recover the Receivables from the Transferor
15
or WFNMT or to recharacterize the Receivables as property of the
Bank or of the conservatorship or receivership for the Bank;
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.
(xvi) 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 (a) hold the transfers of
Receivables by the Bank to the Transferor under the Receivables
Purchase Agreement to be a true conveyance and not a secured loan or
a grant of a security interest to secure a loan and (b) determine
that the rights, titles, powers, and privileges of the FDIC as
conservator or receiver of the Bank would not extend to the
Receivables.
(xvii) 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
Representative reasonably requests.
(xviii) Certain matters relating to the transfer of the
Receivables from the Transferor to WFNMT under the PSA.
(xix) Certain matters relating to the transfer of the
Collateral Certificate from the Transferor to the Issuer under the
TSA.
(xx) The perfection of the security interest in favor of the
Issuer in the Collateral Certificate and the proceeds thereof.
(xxi) Upon the Indenture Trustee having taken possession of the
Collateral Certificate issued by WFNMT, the Program Documents having
been executed and delivered and WFNMT having received payment for
the Collateral Certificate, the Indenture Trustee became the
registered holder of the Collateral Certificate, subject to no Liens
of record, together with such other opinions related thereto as the
Representative reasonably requests.
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor and the Bank and their
accountants, the Underwriters and counsel to the Underwriters concerning
16
the Registration Statement and the Prospectus and have considered the
matters to be stated therein and the matters stated therein, although
they are not independently verifying the accuracy, completeness or
fairness of such statements (except as stated in paragraphs (vii) and
(viii) above) and based upon and subject to the foregoing, nothing has
come to such counsel's attention to cause such counsel to believe that
the Registration Statement (excluding any exhibits filed therewith), at
the time it became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Prospectus, as of the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel has not been requested
to, and need not, make any comment in such opinion with respect to the
financial statements, supporting schedules and other financial or
statistical information contained in the Registration Statement or the
Prospectus).
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
Representative and its 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.
(f) The Representative 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 Representative 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.
(g) The Representative shall have received an opinion, dated the
Closing Date, of Xxxxx & Xxxxxx, special Ohio counsel for the Transferor
and the Bank, satisfactory in form and substance to the Representative
and its counsel with respect to (i) certain matters relating to the
transfer of the Receivables from the Bank to the Transferor under the
Receivables Purchase Agreement and from the Bank to WFNMT under the PSA,
as applicable, (ii) the perfection of the security interest in favor of
the Transferor and WFNMT, as applicable, in the Receivables and the
proceeds thereof and (iii) for Ohio corporate franchise tax purposes or
the Ohio dealers intangibles tax, neither WFNMT nor the Issuer will be
treated as an entity subject to tax, and (iv) Noteholders not otherwise
subject to Ohio corporate franchise tax or Ohio personal income tax will
not become subject to the Ohio corporate franchise tax or Ohio personal
income tax by reason of their ownership of the Notes.
(h) The Representative shall have received an opinion, dated the
Closing Date, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware
counsel for the Transferor and the Bank, satisfactory in form and
substance to the Representative and its counsel with respect to (i) the
17
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, (ii) the perfection of the security interest in favor of the
Issuer in the Collateral Certificate and the proceeds thereof and (iii)
the perfection of the security interest in favor of the Indenture Trustee
in the Collateral Certificate and the proceeds thereof.
(i) The Representative 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 (u) 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, (v)
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, (w) the
representations and warranties of the Transferor or the Bank, as the case
may be, contained in this Agreement and the Program Documents to which it
is a party are true and correct as of the dates specified herein and
therein, (x) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission, (y)
nothing has come to such officers' attention that would lead such
officers to believe that the Registration Statement or the Prospectus,
and any amendment or supplement thereto, as of its date and as of the
Closing Date, contained an untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (z) subsequent to the date of the Prospectus, there
has been no material adverse change in the financial position or results
of operation of the Bank's credit card business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(j) The Representative 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 Representative and its
counsel, to the effect that:
(i) Chase is duly incorporated and validly existing as a
national banking association in good standing under the laws of the
United States of America and had at all relevant times and has
currently the power and authority to execute, deliver and perform
the Trust Agreement and to consummate the transactions contemplated
thereby, and, on behalf of the Issuer, to execute and deliver the
Indenture and the TSA (the Indenture and the TSA collectively
referred to in this subsection 6(j) as the "Trust Documents") and to
consummate the transactions contemplated thereby.
(ii) The Trust Agreement has been duly authorized, executed and
delivered by Chase and constitutes a legal, valid and binding
obligation of Chase, enforceable against Chase in accordance with
its terms.
(iii) The Trust Documents have been duly authorized, executed
and delivered by the Owner Trustee on behalf of the Issuer.
18
(iv) Neither the execution, delivery or performance by Chase of
the Trust Agreement or, as Owner Trustee on behalf of the Issuer, of
the Trust Documents, nor the consummation of any of the transactions
by Chase 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
banking or trust powers of Chase.
(v) Neither the execution, delivery and performance by Chase of
the Trust Agreement or, as Owner Trustee on behalf of the Issuer, of
the Trust Documents, nor the consummation of any of the transactions
by Chase or the Owner Trustee, as the case may be, contemplated
thereby, is in violation of the articles of association or bylaws of
Chase or of any law, governmental rule or regulation of the State of
Delaware or of the United States of America governing the banking or
trust powers of Chase or, to such counsel's knowledge, without
independent investigation, any indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license
or other agreement or instrument to which it is a party or by which
it is bound or, to such counsel's knowledge, without independent
investigation, or any judgment or order applicable to Chase.
(vi) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware was or is required by
or with respect to Chase, in its individual capacity or as Owner
Trustee, as the case may be, for the valid execution and delivery of
the Trust Agreement or, as Owner Trustee on behalf of the Issuer, of
the Trust Documents, or for the validity or enforceability thereof
(other than the filing of the certificate of trust, which
certificate of trust has been duly filed).
(vii) 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.
(k) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel to the Issuer,
dated the Closing Date, satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) The Issuer 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(k) as the "Trust Act").
19
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Transferor and the Owner Trustee, enforceable
against the Transferor and the Owner Trustee, in accordance with its
terms.
(iii) Under the Trust Act and the Trust Agreement, the
execution and delivery of the TSA and the Indenture (the TSA and the
Indenture collectively referred to in this subsection 6(k) as the
"Trust Documents"), the issuance of the Notes, and the granting of
the Collateral to the Indenture Trustee as security for the Notes
has been duly authorized by all necessary trust action on the part
of the Issuer.
(iv) Under the Trust Act and the Trust Agreement, the Issuer
has (i) the trust power and authority to execute, deliver and
perform its obligations under the Trust Documents and the Notes, and
(ii) duly authorized, executed and delivered such agreements and
obligations.
(v) The Transferor Interest is entitled to the benefits of the
Trust Agreement.
(vi) Neither the execution, delivery and performance by the
Issuer of the 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 with the Delaware
Secretary of State (which Certificate of Trust has been duly filed)
and the filing of any UCC financing statements with the Delaware
Secretary of State pursuant to the Indenture.
(vii) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, nor the consummation by the Issuer of
the transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule, or regulation of the State of
Delaware applicable to the Issuer.
(viii) Under Section 3805(b) of the Act, no creditor of the
holder of the beneficial interest in the Trust 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.
(ix) Under Sections 3808(a) and (b) of the Act, the Issuer may
not be terminated or revoked by the holder of the beneficial
interest in the Trust, and the dissolution, termination or
bankruptcy of the holder of the beneficial interest in the Trust
shall not result in the termination or dissolution of the Issuer,
except to the extent otherwise provided in the Trust Agreement.
20
(x) The Owner Trustee is not required to hold legal title to
the Trust Estate in order for the Issuer to qualify as a business
trust under the Act.
(xi) With respect to the Issuer and the Receivables: (a) there
is no document, stamp, excise or other similar tax imposed by the
State of Delaware upon the perfection of a security interest in the
Collateral Certificate or the Receivables, in the transfer of
Collateral Certificate or the Receivables to or from the Issuer or
the WFNMT 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 or the WFNMT;
(c) the characterization of the Issuer and the WFNMT for federal
income tax purposes will be determinative of the characterization of
the Issuer and the WFNMT for Delaware income tax purposes and
assuming that the Issuer and the WFNMT will not be taxed as
associations or as publicly traded partnerships for federal income
tax purposes, neither of the Issuer nor the WFNMT will be subject to
Delaware income tax and Noteholders who are not otherwise subject to
Delaware income tax will not be subject to tax by reason of their
ownership of the Notes and the receipt of income therefrom; and (d)
any income tax imposed by the State of Delaware that might be
applicable to the Issuer would be based upon "federal taxable
income," and for the purposes of determining such income, the
characterization of such income for federal income tax purpose will
be determinative, whether the characterization of the transaction is
that of a sale or a loan.
(xii) The Transferor is the sole beneficial owner of the
Issuer.
(l) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx, counsel to the Indenture Trustee, dated the Closing
Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Indenture Trustee is organized and validly existing as
an Illinois banking corporation in good standing under the laws of
the State of Illinois and is authorized and qualified to accept the
trusts imposed by the Indenture and to act as Indenture Trustee
under the Indenture.
(ii) The acknowledgment by the Indenture Trustee of the 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) The Indenture Trustee has duly executed and authenticated
the Notes.
21
(iv) The Indenture Trustee is duly authorized and empowered to
exercise trust powers under applicable law.
(v) None of (x) the execution and authentication of the Notes,
(y) the acknowledgment of the TSA or (z) the execution, delivery and
performance of the Indenture by the Indenture Trustee conflicts with
or will result in a violation of (A) any law or regulation of the
United States of America or the States of Illinois governing the
banking or trust powers of the Indenture Trustee or (B) the
organization certificate or bylaws of the Indenture Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of Illinois having jurisdiction over the banking or trust
powers of the Indenture Trustee was or is required in connection
with the execution and delivery by the Indenture Trustee of the
Indenture or the performance by the Indenture Trustee of the terms
of the Indenture or the acknowledgment of the TSA.
(m) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx, counsel to the WFNMT Trustee, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel,
to the effect that:
(i) The WFNMT Trustee is organized and validly existing as an
Illinois banking corporation in good standing under the laws of the
State of Illinois and 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 executed and authenticated the
Collateral Certificate.
(iv) The WFNMT Trustee is duly authorized and empowered to
exercise trust powers under applicable law.
(v) None of (y) the execution and authentication of the
Collateral Certificate, and (z) the execution, delivery and
performance of the PSA by the WFNMT Trustee conflicts with or will
result in a violation of (A) any law or regulation of the United
States of America or the States of Illinois governing the banking or
trust powers of the WFNMT Trustee or (B) the organization
certificate or bylaws of the WFNMT Trustee.
22
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of Illinois having jurisdiction over the banking or trust
powers of the WFNMT Trustee 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.
(n) The Representative shall have received reliance letters
addressed to the Representative, dated the Closing Date, allowing the
Representative to rely on each opinion of counsel delivered to a Rating
Agency, the Indenture Trustee, the Transferor or the Bank in connection
with the issuance of the Notes.
(o) The Representative shall have received an opinion of Xxxxxxx,
Xxxx, Xxxxx & Xxxxxx, special Kansas counsel to the Issuer, dated the
Closing Date, satisfactory in form and substance to the Representative
and its 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
$2,500 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
entitites, it will not be subject to Kansas franchise tax; (ii) for
Kansas income tax purposes, neither WFNMT nor the Issuer will be treated
as an entity subject to tax; and (iii) Noteholders not otherwise subject
to Kansas income tax or Kansas franchise tax will not become subject to
the Kansas income tax or Kansas franchise tax by reason of their
ownership of the Notes, together with such other opinions related thereto
as the Representative reasonably requests.
(p) The Representative shall have received an opinion of Xxxx, Xxxxx
& Xxxxxxxx, special Colorado counsel to the Issuer, dated the Closing
Date, satisfactory in form and substance to the Representative and its
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 the Colorado income tax by reason of their ownership of
the Notes, together with such other opinions related thereto as the
Representative reasonably requests.
(q) The Representative shall have received an opinion of Xxxxx and
X'Xxxxxx, special New Jersey counsel to the Issuer, dated the Closing
Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that (i) for New Jersey corporation business tax
purposes or New Jersey gross income tax purposes, neither WFNMT nor the
Issuer will be treated as an entity subject to tax and (ii) Noteholders,
not otherwise subject to New Jersey corporation business tax, New Jersey
gross income tax or New Jersey personal income tax, will not become
subject to the New Jersey corporation business tax, New Jersey gross
income tax or New Jersey personal income tax by reason of their ownership
of the Notes, together with such other opinions related thereto as the
Representative reasonably requests.
23
(r) The Representative shall have received evidence
satisfactory to the Representative that the Class A Notes shall be
rated "Aaa" by Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), "AAA" by
Standard & Poor's Ratings Services ("Standard & Poor's") and "AAA" by
Fitch, Inc. ("Fitch"), that the Class B Notes shall be rated no lower
than "A1" by Moody's, "A" by Standard & Poor's and "A+" by Fitch, and
that the Class C Notes shall be rated no lower than "Baa2" by Moody's,
"BBB" by Standard & Poor's and "BBB" by Fitch.
The Transferor will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably request.
7. Indemnification and Contribution.
(a) The Transferor and the Bank, jointly and severally, will
indemnify and hold harmless each Underwriter and each Person who
controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the 1934 Act from and against any losses, claims,
damages or liabilities, joint or several, to which the Underwriters
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 Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse
each Underwriter and each Person who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the 1934 Act
for any actual legal or other expenses reasonably incurred by the
Underwriter 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 Class A Underwriters' Information, the Class B
Underwriters' Information or the Class C Underwriter's Information;
provided further, that the Transferor and the Bank will not be
liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any preliminary prospectus to the
extent that any loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Notes to a Person
as to whom it is established that there was not sent or given, at or
prior to written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by the Act if
the Transferor or the Bank notified the Representative in writing in
accordance with Section 5(a) hereof and previously furnished copies
of the Prospectus (excluding documents incorporated by reference) in
the quantity requested in accordance with Section 5(d) hereof to
such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a
material fact contained in the preliminary prospectus and corrected
in the Prospectus or the Prospectus as then amended or supplemented.
24
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless 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 1934 Act, 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 Prospectus or any
amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that, with respect to each of the Class A Underwriters, the Class B
Underwriters and the Class C Underwriter, such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the Class A Underwriters'
Information, the Class B Underwriters' Information or the Class C
Underwriter's Information, respectively, and will reimburse any
actual legal or other expenses reasonably incurred by the Transferor
and the Bank in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action 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) or (b) 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 incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened 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.
25
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Transferor and the Bank on the one hand and the Underwriters on the
other from the offering of the Notes, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of 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 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 (d) 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 (d).
Notwithstanding the provisions of this subsection (d), the
Underwriters shall not be required to contribute any amount in
excess of the amount by which the total underwriting discount as set
forth on the cover page of the Prospectus Supplement exceeds the
amount of damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission with respect to the Notes. No Person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of 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
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. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
26
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, the Bank or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Notes. If
this Agreement is terminated or if for any reason other than default by the
Underwriters the purchase of the Notes by the Underwriters is not consummated,
the 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 Notes by the Underwriters is
not consummated other than solely because of the occurrence of any event
specified in clause (ii), (iii) or (iv) of Section 6(c), 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 Notes.
9. Computational Materials and ABS Term Sheets.
(a) Each Underwriter, severally, represents and warrants to the
Transferor and the Bank that it has not and will not use any information
that constitutes "Computational Materials," as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and
Xxxxxx Structured Asset Corporation (as made generally applicable to
registrants, issuers and underwriters by the Commission's response to the
request of the Public Securities Association dated May 27, 1994), with
respect of the offering of the Notes.
(b) Each Underwriter, severally, represents and warrants to the
Transferor and the Bank that it has not and will not use any information
that constitutes "ABS Term Sheets," as defined in the Commission's
No-Action Letter, dated February 17, 1995, addressed to the Public
Securities Association, with respect to the offering of the Notes.
10. 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 Notes or
distribute the Prospectus or any other offering materials relating to the
Notes in or from any jurisdiction except under circumstances that will,
to the best of its knowledge and belief, result in compliance with any
applicable laws and regulations thereof 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 Notes, transfer,
deposit or otherwise convey any 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
Notes unless either (i) the 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)
27
the Bank gives its prior written consent to such conveyance, which
consent shall not be unreasonably withheld.
11. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Notes set forth
opposite their names in Schedule A hereto bear to the aggregate amount of
Notes set forth opposite the names of all the remaining Underwriters) the
Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Notes set forth in
Schedule A hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Notes, and
if such nondefaulting Underwriters do not purchase all the Notes, this
Agreement will terminate without liability to any nondefaulting Underwriter,
the Transferor or the Bank. In the event of a default by any Underwriter as
set forth in this Section 11, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representative shall determine in
order that the required changes in the Registration Statement and 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.
12. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF 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.
15. Financial Services Act. Each Underwriter represents and warrants to,
and agrees with, the Transferor and the Bank that (a) it has complied and
shall comply with all applicable provisions of the Financial Services and
Markets Act 2000 (the "FSMA") and the Public Offers of Securities Regulations
28
1995 (the "Regulations") with respect to anything done by it in relation to
the Notes in, from or otherwise involving the United Kingdom; (b) it 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 Notes in circumstances in which
section 21(1) of the FSMA does not apply to the Transferor or the Issuer; and
(c) it has not offered or sold, and prior to the date which is six months
after the date of issue of the Notes will not offer or sell any Note to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which do not constitute an offer to the public in the United
Kingdom for the purposes of the Regulations.
16. Representative. The representative 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.
[Signature Page Follows]
29
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. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx, CCM
Title: Sr. Vice President, Treasurer
WORLD FINANCIAL NETWORK NATIONAL BANK
By /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx, CCM
Title: Sr. Vice President, Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
X.X. XXXXXX SECURITIES INC.
as Representative of the
Underwriters set forth herein
By /s/Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
SCHEDULE A
Class A Notes
-------------
Underwriters Principal Amount of
------------- Class A Notes
-------------
X.X. Xxxxxx Securities Inc. $ 93,600,000
Wachovia Securities, Inc. $ 93,600,000
Banc One Capital Markets, Inc. $ 93,600,000
Barclays Capital Inc. $ 93,600,000
Credit Suisse First Boston Corporation $ 93,600,000
-------------
Total $ 468,000,000
=============
Class B Notes
-------------
Underwriters Principal Amount of
------------ Class B Notes
-------------
X.X. Xxxxxx Securities Inc. $ 25,500,000
Wachovia Securities, Inc. $ 25,500,000
------------
Total $ 51,000,000
============
Class C Notes
-------------
Underwriter Principal Amount of
Class C Notes
-------------
X.X. Xxxxxx Securities Inc. $ 81,000,000
------------
Total $ 81,000,000
============
