EXHIBIT 1.1 - UNDERWRITING AGREEMENT (STANDARD TERMS)
EXECUTION COPY
DC FUNDING INTERNATIONAL, INC.
Transferor
FNANB CREDIT CARD MASTER NOTE TRUST
May 21, 2003
UNDERWRITING AGREEMENT
(Standard Terms)
Banc of America Securities LLC,
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(as Representatives of the several Underwriters
listed in Schedule 1 to the Terms Agreement)
Ladies and Gentlemen:
1. Introductory. The FNANB Credit Card Master Note Trust (the "Note
Trust"), issues, from time to time, asset backed securities (the "Notes") in one
or more series (each, a "Series"). The property of the Trust will consist of a
collateral certificate representing an interest in the FNANB Credit Card Master
Trust (the "Certificate Trust"). The property of the Certificate Trust includes
receivables (the "Receivables") generated from time to time in a portfolio of
credit card accounts (the "Accounts"), collections thereon and certain related
property (collectively, the "Trust Property") conveyed to the Certificate Trust
by DC Funding International, Inc. (the "Transferor"). The Notes to which this
agreement applies will be issued pursuant to the Master Indenture, to dated as
of July 1, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Master Indenture"), between the Note Trust and JPMorgan Chase Bank,
as indenture trustee (the "Indenture Trustee"), as supplemented by an indenture
supplement relating to each series of such Notes (each, an "Indenture
Supplement" and
together with the Master Indenture, the "Indenture"). To the extent not defined
herein, capitalized terms used herein shall have the meanings specified in the
Master Indenture and the applicable Indenture Supplement.
Each offering of the Notes to which this Agreement applies made pursuant
to the Registration Statement (as herein defined) will be made through you or
through you and other underwriters for whom you are acting as representatives or
through an underwriting syndicate managed by you. Whenever the Transferor
determines to make such an offering of Notes to which this Agreement shall
apply, it will enter into an agreement (a "Terms Agreement") providing for the
sale of such Notes to, and the purchase and offering thereof by, (i) you, (ii)
you and such other underwriters (such other underwriters to be approved by the
Transferor, which approval shall not be unreasonably withheld) who execute such
Terms Agreement and agree thereby to become obligated to purchase Notes from the
Transferor or (iii) you and such other underwriters, if any, selected by you
(such other underwriters to be approved by the Transferor, which approval shall
not be unreasonably withheld) as have authorized you to enter into such Terms
Agreement on their behalf (in each case, the "Underwriters"). (It is understood
that the Transferor shall not be obligated to sell any particular Series or
Class of Notes offered pursuant to the Registration Statement to you or you and
other Underwriters.) Execution of a Terms Agreement by the Transferor shall be
conclusive evidence of the Transferor's approval of all Underwriters named
therein. Such Terms Agreement shall specify the initial principal amount of the
Notes of each Series and Class of the Notes to be issued and their terms not
otherwise specified in this Agreement, the price at which such Notes are to be
purchased by the Underwriters from the Transferor, the aggregate amount of Notes
to be purchased by you and any other Underwriter that is a party to such Terms
Agreement and the initial public offering price or the method by which the price
at which such Notes are to be sold will be determined. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written communication between or among
the Underwriters and the Transferor. Each such offering of the Notes for which a
Terms Agreement is entered into will be governed by this Agreement, as
supplemented by such Terms Agreement, and this Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon the Underwriters
participating in the offering of such Notes.
2. Representations and Warranties of the Transferor. The Transferor
represents and warrants to you as of the date hereof and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) a registration statement on Form S-3 (having the
registration number stated in the applicable Terms Agreement), including
a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the Notes and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of
1933, as amended (the "Act"), has been filed with the Securities and
Exchange Commission (the "Commission") (which may have included one or
more preliminary prospectuses and prospectus supplements (each, a
"Preliminary Prospectus") meeting the requirements of Rule 430 of the
Act), and such registration statement, as amended, has become effective;
such registration statement, as amended, and the prospectus relating to
the sale of the Notes offered thereby by the Transferor constituting a
part thereof, as from time to time amended or supplemented (including
any prospectus filed with the
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Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission (the "Rules and Regulations") under the Act), are
respectively referred to herein as the "Registration Statement" and the
"Prospectus"; provided, however, that a supplement to the Prospectus
prepared pursuant to Section 5(a) hereof (each, a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only
with respect to the offering of the Notes to which it relates; and the
conditions to the use of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect
to the Registration Statement;
(b) as of the date of execution of the related Terms
Agreement, the Registration Statement and the Prospectus, except with
respect to any modification to which you have agreed in writing, shall
be in all substantive respects in the form furnished to you prior to
such date or, to the extent not completed on such date, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus that has previously been
furnished to you) as the Transferor has advised you, prior to such time
will be included or made therein;
(c) on the effective date of the Registration Statement, the
Registration Statement and the Prospectus complied in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and, in the case of the Prospectus,
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and on the date of each Terms Agreement and on each Delivery
Date (as defined in Section 3 hereof), the Registration Statement and
the Prospectus will comply in all material respects with the applicable
requirements of the Act and the Rules and Regulations, and neither of
such documents included or will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing does not apply to information
contained in or omitted from either of the documents based upon written
information furnished to the Transferor by any Underwriter specifically
for use in connection with the preparation of the Registration Statement
or the Prospectus;
(d) the Transferor is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware, with full power, authority and legal right to own its
properties and conduct its business as described in the Prospectus, is
duly qualified to do business and is in good standing (or is exempt from
such requirements), and has obtained all necessary licenses and
approvals (except with respect to the state securities or Blue Sky laws
of various jurisdictions) in each jurisdiction in which failure to so
qualify or obtain such licenses and approvals would have a material
adverse effect on the interests of Noteholders under the Master
Indenture or under any Indenture Supplement;
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(e) the Note Trust is a business trust duly organized and
validly existing in good standing under the laws of the State of
Delaware, with full power, authority and legal right to own its
properties and conduct its business as described in the Prospectus, is
duly qualified to do business and is in good standing (or is exempt from
such requirements), and has obtained all necessary licenses and
approvals (except with respect to the state securities or Blue Sky laws
of various jurisdictions) in each jurisdiction in which failure to so
qualify or obtain such licenses and approvals would have a material
adverse effect on the interests of Noteholders under the Master
Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such
Terms Agreement, will have been duly and validly authorized and, when
such Notes are duly and validly executed by or on behalf of the Note
Trust, authenticated by the Indenture Trustee and delivered in
accordance with the Master Indenture and the applicable Indenture
Supplement and delivered and paid for as provided herein, will be a
legal, valid and binding obligation of the Note Trust, enforceable
against the Note Trust in accordance with its terms, and validly issued
and outstanding and entitled to the benefits and security afforded by
the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the
Transferor of this Agreement, each applicable Terms Agreement, any
applicable agreement relating to an Enhancement (an "Enhancement
Agreement"), the Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement and the Receivables
Purchase Agreement, dated as of December 31, 2001 between FNANB, as
seller, and the Transferor, as purchaser (as amended, supplemented or
otherwise modified from time to time, the "Purchase Agreement"), and the
consummation by the Transferor of the transactions provided for herein
and therein, have been, or will have been, duly authorized by the
Transferor by all necessary action on the part of the Transferor; and
neither the execution and delivery by the Transferor of such
instruments, nor the performance by the Transferor of the transactions
herein or therein contemplated, nor the compliance by the Transferor
with the provisions hereof or thereof, will (i) conflict with or result
in a breach of any of the terms and provisions of, or constitute a
default under, any of the provisions of the amended and restated
certificate of incorporation or by-laws of the Transferor, or (ii)
conflict with any of the provisions of any law, government rule,
regulation, judgment, decree or order binding on the Transferor or its
properties or (iii) conflict with any of the provisions of any material
indenture, mortgage, contract or other instrument to which the
Transferor is a party or by which it is bound or (iv) result in the
creation or imposition of any lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument;
(h) when executed and delivered by the parties thereto, the
Pooling and Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Purchase Agreement and any
applicable Enhancement Agreement will constitute a legal, valid and
binding agreement of the Transferor, enforceable against the Transferor
in accordance with its terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to
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creditors' rights in general as such laws would apply in the event of
the insolvency, liquidation or reorganization or other similar
occurrence with respect to the Transferor or in the event of any
moratorium or similar occurrence affecting the Transferor and to general
principles of equity;
(i) all approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any
court, governmental agency or body or official (except with respect to
the state securities or Blue Sky laws of various jurisdictions),
required in connection with the valid and proper authorization, issuance
and sale of the Notes of a Series pursuant to this Agreement, the
applicable Terms Agreement, the Indenture and the applicable Indenture
Supplement, have been or will be taken or obtained on or prior to the
applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the
applicable Terms Agreement will have been duly executed and delivered by
the Transferor;
(k) except as set forth in or contemplated in the
Registration Statement and the Prospectus, there has been no material
adverse change in the condition (financial or otherwise) of the
Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in
connection with the execution, delivery and performance by the
Transferor of this Agreement, the applicable Terms Agreement, the
Indenture, the applicable Indenture Supplement, the Pooling and
Servicing Agreement, the Collateral Series Supplement, the Transfer and
Servicing Agreement, the Purchase Agreement, any applicable Enhancement
Agreement and the Notes of the related Series shall have been paid or
will be paid by or on behalf of the Transferor at or prior to the
applicable Delivery Date to the extent then due; and
(m) the Notes of the related Series, the Indenture, the
applicable Indenture Supplement, the Pooling and Servicing Agreement,
the Collateral Series Supplement, the Transfer and Servicing Agreement,
the Purchase Agreement and any applicable Enhancement Agreement conform
in all material respects to the description thereof in the Prospectus.
3. Purchase, Sale and Delivery of Notes. Delivery of and payment
for the Notes to which this Agreement applies will be made at the offices of
McGuireWoods LLP, One Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, or such other offices specified in the applicable Terms Agreement, at
such time as shall be specified in the applicable Terms Agreement, or at such
other time thereafter or other place as you and the Transferor shall agree upon,
each such time being therein referred to as a "Delivery Date". Delivery of such
Notes shall be made by the Transferor to the Underwriters against payment of the
purchase price specified in the applicable Terms Agreement in same day funds
wired to such bank as may be designated by the Transferor, or by such other
manner of payment as may be agreed upon by the Transferor and you. Unless
otherwise provided in the applicable Terms Agreement, payment for the Notes
shall be made against delivery through the facilities of The Depository Trust
Company ("DTC") of Book-Entry Notes to you for the respective accounts of the
several Underwriters. Unless otherwise provided in a Terms Agreement, the Notes
so to be delivered shall be global
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Notes registered in the name of Cede & Co., as nominee for DTC. The number and
denomination of definitive Notes so delivered shall be as specified by DTC. The
definitive certificates for the Notes will be made available for inspection and
packaging by you at the offices of McGuireWoods LLP, or such other offices
specified in the applicable Terms Agreement, not later than 1:00 P.M., New York
City time, on the Business Day prior to the Delivery Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes subject to this Agreement for sale to
the public as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby covenants and
agrees with you and the several Underwriters participating in the applicable
offering of the Notes that:
(a) immediately following the execution of each Terms
Agreement, the Transferor will prepare a Prospectus Supplement setting
forth the amount of Notes covered thereby and the terms thereof not
otherwise specified in the Prospectus, the price at which such Notes are
to be purchased by the Underwriters from the Transferor, either the
initial public offering price or the method by which the price at which
such Notes are to be sold will be determined, the selling concessions
and allowances, if any, and such other information as the Transferor
deems appropriate in connection with the offering of such Notes, but the
Transferor will not file any amendments to the Registration Statement as
in effect with respect to the Notes, or any amendments or supplements to
the Prospectus, unless it shall first have delivered copies of such
amendments or supplements to you, or if you shall have reasonably
objected thereto promptly after receipt thereof; the Transferor will
immediately advise you and your counsel (i) when notice is received from
the Commission that any post-effective amendment to the Registration
Statement has become or will become effective and (ii) of any order or
communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Notes or of any proceedings or
examinations that may lead to such an order or communication, whether by
or of the Commission or any authority administering any state securities
or Blue Sky laws, as soon as practicable after the Transferor is advised
thereof, and will use every reasonable effort both to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued;
(b) if, at any time when a Prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Transferor will promptly
prepare and (subject to review and no reasonable objection by you as
described in Section 5(a) hereof) file with the Commission, at its own
expense, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, within
two Business Days thereafter, furnish to you as many copies of the
Prospectus as amended or supplemented as you may reasonably request;
provided, however, that your consent to any amendment shall not
constitute a waiver of any of the conditions of Section 6 hereof;
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(c) the Transferor will make generally available to the
holders of the Notes (the "Noteholders") of the related Series (the
Noteholders being the applicable Clearing Agency in the case of
Book-Entry Notes), in each case as soon as practicable, a statement
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Commission with respect to the related Series of Notes;
(d) the Transferor will furnish to each Underwriter copies
of the Registration Statement (at least one copy to be delivered to each
Underwriter will be signed and will include all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as you reasonably request;
(e) the Transferor will assist you in arranging for the
qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as you
designate and will continue to assist you in maintaining such
qualifications in effect so long as required for the distribution and
will file or cause to be filed such statements and reports with respect
to the distribution as may be required by the laws of each jurisdiction
in which the Notes have been qualified as provided above; provided,
however, that neither the Transferor nor the Trust shall be required to
qualify to do business in any jurisdiction where it is now not qualified
or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to
service of process;
(f) to the extent that any rating necessary to satisfy the
condition set forth in Section 6(c) hereof is conditioned upon the
furnishing of documents or the taking of other actions by the Transferor
on or after the Delivery Date, the Transferor shall furnish such
documents and take such other action;
(g) except as otherwise specified in the related Terms
Agreement, the Transferor will pay all expenses incident to the
performance of its obligations under this Agreement and the related
Terms Agreement and will reimburse the Underwriters for any expenses
reasonably incurred by them in connection with qualification of the
related Series of Notes and determination of their eligibility for
investment under the laws of such jurisdictions as you may designate
(including reasonable fees and disbursements of the Underwriters'
counsel) and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of such Notes and,
to the extent previously agreed upon with you, for expenses incurred in
distributing the Prospectus (including any amendments and supplements
thereto) to the Underwriters; and
(h) the Transferor will, for so long as Notes purchased
pursuant thereto remain outstanding, deliver or cause to be delivered to
you (i) copies of the annual servicer's certificate and the annual
accountants' reports delivered to the Indenture Trustee pursuant to the
Pooling and Servicing Agreement or the Transfer and Servicing Agreement,
as applicable, promptly after such reports are delivered to the
Indenture Trustee, and (ii) a copy of the statement described in Section
5(c) hereof promptly after such statements are delivered to Noteholders.
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6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters named in any Terms Agreement to purchase
and pay for the Notes of the related Series subject to this Agreement and such
Terms Agreement will be subject to the accuracy of the representations and
warranties on the part of the Transferor herein as of the date hereof, the date
of the applicable Terms Agreement and the applicable Delivery Date, to the
accuracy of the statements of the Transferor made pursuant to the provisions
thereof, to the performance by the Transferor in all material respects of its
obligations hereunder and to the following additional conditions precedent:
(a) you shall have received a letter from KPMG LLP, or such
other independent public accountants specified in the applicable Terms
Agreement, dated the date of the applicable Terms Agreement, and, if
requested by you, a letter from such accountants, dated the Delivery
Date, each in the forms heretofore agreed to;
(b) all actions required to be taken and all filings
required to be made by the Transferor under the Act prior to the
Delivery Date for the Notes of such Series shall have been duly taken or
made; and prior to the applicable Delivery Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Transferor, threatened by the
Commission;
(c) unless otherwise specified in the applicable Terms
Agreement, the Notes subject to this Agreement and offered by means of
the Registration Statement shall be rated at the time of issuance in the
highest rating category by the nationally recognized statistical rating
organization[s] specified in the applicable Terms Agreement and shall
not have been placed on any credit watch with a negative implication for
downgrade;
(d) you shall have received an opinion of McGuireWoods LLP
(or such other counsel as shall be specified in the applicable Terms
Agreement), counsel to the Transferor, dated the applicable Delivery
Date, substantially to the effect that:
(i) the Transferor is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, with full power and authority to own its
assets and operate its business as described in the Prospectus,
and had at all relevant times and now has, the power, authority
and legal right to acquire and own the Receivables transferred
or proposed to be transferred to the Certificate Trust as
described in the Prospectus;
(ii) the Transferor has full power and authority to
sign the Registration Statement and to execute and deliver this
Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Purchase Agreement and the
applicable Enhancement Agreement and to consummate the
transactions contemplated herein and therein;
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(iii) the agreements referred to in clause (ii) above
have been authorized by all necessary action on the part of the
Transferor and have been duly executed and delivered by the
Transferor;
(iv) the Notes have been duly authorized by all
necessary action of the Transferor;
(v) The Collateral Certificate has been duly
authorized by all necessary action on the part of the Transferor
and has been duly executed and delivered by the Transferor. The
Collateral Certificate, when authenticated in accordance with
the Pooling and Servicing Agreement and delivered to the
Indenture Trustee in accordance with the Transfer and Servicing
Agreement, will be validly issued and outstanding and will be
entitled to the benefits of the Pooling and Servicing Agreement.
(vi) The Notes, when executed and delivered by the
Note Trust, authenticated in accordance with the Indenture and
delivered to and paid for by the Underwriters in accordance with
the Underwriting Agreement, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the
Note Trust enforceable against the Issuer in accordance with
their terms, subject, as to enforcement, to (A) the effect of
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, receivership, conservatorship and similar laws
relating to or affecting creditors' rights generally, (B) the
application of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and (C) the unenforceability under certain
circumstances of provisions indemnifying a party against
liability where such indemnification is contrary to public
policy.
(vii) this Agreement, the applicable Terms Agreement,
the Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement, the Purchase
Agreement and the applicable Enhancement Agreement each
constitutes the legal, valid and binding agreement of the
Transferor, enforceable against the Transferor in accordance
with its terms, subject, as to enforcement, to (A) the effect of
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, conservatorship, receivership, or other similar laws
relating to or affecting creditors' rights generally, (B) the
application of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and (C) the enforceability under certain
circumstances of provisions indemnifying a party against
liability where such indemnification is contrary to public
policy;
(viii) The Transfer and Servicing Agreement, the
Indenture, the Administration Agreement and the Insurance
Agreement constitute the legal, valid and binding agreements of
the Note Trust enforceable against the Note Trust in accordance
with their respective terms, subject, as to enforcement, to (A)
the effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, receivership, conservatorship and
similar laws relating to or affecting creditors'
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rights generally, (B) the application of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and (C) the unenforceability
under certain circumstances of provisions indemnifying a party
against liability where such indemnification is contrary to
public policy.
(ix) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Certificate
Trust is not now, and immediately following the issuance and
transfer of the Collateral Certificate pursuant to the Transfer
and Servicing Agreement will not be, required to be registered
under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(x) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
herein, in the applicable Terms Agreement, the Pooling and
Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Purchase Agreement and the
applicable Enhancement Agreement, except such as have been
obtained or made and such as may be required under state
securities or Blue Sky laws;
(xi) the execution, delivery and performance by the
Transferor of its obligations under this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement,
the Collateral Series Supplement, the Transfer and Servicing
Agreement, the Purchase Agreement, the transfer of the
Receivables to the Certificate Trust, the issuance and sale of
the Notes, and the consummation of any other of the transactions
contemplated herein, in the applicable Terms Agreement, the
Master Indenture, the applicable Indenture Supplement, the
Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement or any
applicable Enhancement Agreement, will not conflict with, result
in a breach of or violation of any of the terms of, or
constitute a default under, the amended and restated certificate
of incorporation or by-laws of the Transferor, each as amended,
in any material respect, the terms of any indenture or other
material agreement or instrument known to such counsel to which
the Transferor is a party or by which it or its properties are
bound or any rule, order known to such counsel, statute or
regulation, of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Transferor;
provided, however, that such counsel need express no opinion as
to state securities or Blue Sky laws;
(xii) except as otherwise disclosed in the Prospectus
or the Registration Statement, to the best of such counsel's
knowledge (after reasonable investigation), there are no
actions, proceedings or investigations pending or threatened
before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement, the applicable Terms
Agreement, the Master Indenture, the applicable Indenture
Supplement, the Pooling and Servicing Agreement, the Collateral
Series Supplement, the Transfer and Servicing Agreement, the
Purchase Agreement, any applicable Enhancement Agreement or
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the Notes; (B) seeking to prevent the issuance and sale of the
Notes or the consummation of any of the transactions
contemplated by this Agreement, the applicable Terms Agreement,
the Master Indenture, the applicable Indenture Supplement, the
Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement, the Purchase
Agreement, any applicable Enhancement Agreement or the Notes,
which if adversely determined would materially and adversely
affect the performance by the Transferor of its obligations
under, or the validity or enforceability of, this Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement,
the Collateral Series Supplement, the Transfer and Servicing
Agreement, the Purchase Agreement or any applicable Enhancement
Agreement or the Notes, or (C) seeking adversely to affect the
federal income tax attributes of the Notes as described in the
Prospectus under the headings "Series 2003-A Summary - Tax
Status of the Offered Notes and the Trust" and "Material Federal
Income Tax Consequences";
(xiii) the Registration Statement has become effective
under the Act and the Prospectus has been filed with the
Commission pursuant to Rule 424(b) promulgated under the Act; to
the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened under the Act; and the Registration Statement and the
Prospectus (other than the financial, numerical and statistical
information contained therein as to which such counsel need
express no opinion) as of their respective effective date or
date of filing complied as to form in all material respects with
the requirements of the Act and the rules and regulations
promulgated thereunder;
(xiv) this Agreement, the applicable Terms Agreement,
the Indenture, the applicable Indenture Supplement, the Pooling
and Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Purchase Agreement, any
applicable Enhancement Agreement and the Notes conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus; and
(xv) the Indenture and the applicable Indenture
Supplement have been qualified under the Trust Indenture Act of
1939, as amended, and neither the Certificate Trust nor the Note
Trust is, or immediately following the sale of the Notes
pursuant hereto will be, required to be registered under the
1940 Act.
Such counsel also shall state that, subject to its customary practices
and limitations relating to the scope of such counsel's participation in
the preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein, it has
no reason to believe that at its effective date the Registration
Statement contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus on the
applicable Delivery Date includes any untrue statement of a material
fact or omits to state a material fact necessary to make the
11
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than financial, numerical
and statistical information contained therein as to which such counsel
need express no opinion); in rendering such opinion, such counsel may
rely as to matters of fact, to the extent deemed proper and as stated
therein, on certificates of responsible officers of the Transferor, the
Servicer and public officials;
(e) you shall have received an opinion of McGuireWoods LLP
(or such other counsel as shall be specified in the applicable Terms
Agreement), counsel to FNANB, dated the applicable Delivery Date,
substantially to the effect that:
(i) FNANB is a national banking association duly
organized, validly existing and in good standing under the laws
of the United States, with full power and authority to own its
assets and operate its business as described in the Prospectus,
and had at all relevant times and now has, the power, authority
and legal right to originate, acquire and own the Receivables,
sell the Receivables to the Transferor pursuant to the Purchase
Agreement, and service the Receivables pursuant to the Pooling
and Servicing Agreement or the Transfer and Servicing Agreement,
as the case may be;
(ii) FNANB has full power and authority to execute
and deliver the Purchase Agreement, the Pooling and Servicing
Agreement, the Collateral Series Supplement, the Transfer and
Servicing Agreement, the Indenture, the Administration Agreement
and the applicable Enhancement Agreement and to consummate the
transactions contemplated therein;
(iii) the agreements referred to in clause (ii) above
have been authorized by all necessary action on the part of
FNANB and have been duly executed and delivered by FNANB;
(iv) the Purchase Agreement, the Pooling and
Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Indenture, the
Administration Agreement and the applicable Enhancement
Agreement each constitutes the legal, valid and binding
agreement of FNANB, enforceable against FNANB in accordance with
its terms, subject, as to enforcement, to (A) the effect of
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, conservatorship, receivership, or other similar laws
of general applicability relating to or affecting creditors'
rights generally or the rights of creditors of national banking
associations, (B) the application of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and (C) the enforceability under
certain circumstances of provisions indemnifying a party against
liability where such indemnification is contrary to public
policy;
(v) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is
required under the Federal banking laws for the consummation of
the transactions contemplated in the Purchase Agreement, the
Pooling and Servicing Agreement, the Collateral Series
12
Supplement, the Transfer and Servicing Agreement, the Indenture,
the Administration Agreement or the applicable Enhancement
Agreement, except such as have been obtained or made;
(vi) the execution, delivery and performance by FNANB
of its obligations under the Purchase Agreement, the Pooling and
Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Indenture, the
Administration Agreement or the applicable Enhancement
Agreement, the sale of Receivables to the Transferor, and the
consummation of any other of the transactions contemplated in
the Purchase Agreement, the Pooling and Servicing Agreement, the
Collateral Series Supplement, the Transfer and Servicing
Agreement, the Indenture, the Administration Agreement or the
applicable Enhancement Agreement, will not conflict with, result
in a breach of or violation of any of the terms of, or
constitute a default under, the articles of association or
by-laws of FNANB, each as amended, in any material respect, the
terms of any indenture or other material agreement or instrument
known to such counsel to which FNANB is a party or by which it
or its properties are bound or any rule, order known to such
counsel, statute or regulation, to the extent the foregoing
relate to the Federal banking law, of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over FNANB;
(vii) except as otherwise disclosed in the Prospectus
or the Registration Statement, to the best of such counsel's
knowledge (after reasonable investigation), there are no
actions, proceedings or investigations pending or threatened
before any court, administrative agency or other tribunal (A)
asserting the invalidity of the Purchase Agreement, the Master
Indenture, the applicable Indenture Supplement, the Pooling and
Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Administration Agreement
or the applicable Enhancement Agreement or (B) seeking to
prevent the consummation of any of the transactions contemplated
by the Purchase Agreement, the Master Indenture, the applicable
Indenture Supplement, the Pooling and Servicing Agreement, the
Collateral Series Supplement, the Transfer and Servicing
Agreement, the Administration Agreement or the applicable
Enhancement Agreement which if adversely determined would
materially and adversely affect the performance by FNANB of its
obligations under, or the validity or enforceability of, the
Purchase Agreement, the Master Indenture, the applicable
Indenture Supplement, the Pooling and Servicing Agreement, the
Collateral Series Supplement, the Transfer and Servicing
Agreement, the Administration Agreement or the applicable
Enhancement Agreement;
(f) you shall have received an opinion of McGuireWoods LLP
(or such other counsel as shall be specified in the applicable Terms
Agreement), special counsel for the Transferor, dated the Delivery Date,
in form and substance satisfactory to you and your counsel,
substantially to the effect that:
(i) the statements in the Prospectus under the
heading "Material Federal Income Tax Consequences" and the
summary thereof under the heading
13
"Series 2003-A Summary - Tax Status of the Class A Notes and the
Issuer," to the extent they constitute matters of Federal law or
legal conclusions with respect thereto, have been reviewed by
such counsel and are correct in all material respects; and
(ii) the statements in the Prospectus under the
headings "Legal Matters Relating to the Receivables" and "ERISA
Considerations," to the extent they constitute matters of
Federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material
respects;
(g) you shall have received an opinion or opinions of
McGuireWoods LLP (or such other counsel as shall be specified in the
applicable Terms Agreement), special counsel for the Transferor and
FNANB, dated the Delivery Date, in form and substance satisfactory to
you and your counsel, with respect to certain matters relating to (i)
the transfer of the Receivables from FNANB to the Transferor, (ii) the
transfer of the Receivables from the Transferor to the Certificate
Trust, (iii) the transfer of the Collateral Certificate from the
Transferor to the Note Trust and (iv) the pledge of the Collateral
Certificate by the Note Trust to the Collateral Trustee, with respect to
the perfection of the Transferor's and the Certificate Trust's
respective interests in the Receivables and the Note Trust's and the
Indenture Trustee's respective interests in the Collateral Certificate,
and certain other matters relating to the effect of bankruptcy or
receivership of the Transferor or FNANB on such interests in the
Receivables and with respect to other related matters in a form
previously approved by you and your counsel; in addition, you shall have
received a reliance letter with respect to any opinion that the
Transferor is required to deliver to the Rating Agency;
(h) you shall have received from Mayer, Brown, Xxxx & Maw
(or such other counsel as may be named in the applicable Terms
Agreement), special counsel to the Underwriters, such opinion or
opinions, dated the Delivery Date, in form and substance satisfactory to
you, with respect to the organization of the Transferor, the validity of
the Notes, the Registration Statement, the Prospectus and other related
matters as you may require, and the Transferor shall have furnished to
such counsel such documents as they may reasonably request for the
purpose of enabling them to pass on such matters;
(i) you shall have received, with respect to the Transferor,
a certificate, dated the Delivery Date, of a Vice President or more
senior officer of the Transferor in which such officer, to the best of
his or her knowledge after reasonable investigation, shall state that
(A) the representations and warranties of the Transferor in this
Agreement are true and correct in all material respects on and as of the
Delivery Date, (B) the Transferor has complied in all material respects
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and under the applicable Terms
Agreement at or prior to the Delivery Date, (C) the Registration
Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened by
the Commission and (D) subsequent to the date of the applicable
Prospectus Supplement, there has been no material adverse change in the
condition (financial or otherwise) of the Transferor
14
except as set forth in or contemplated in the Registration Statement and
the Prospectus or as described in such certificate;
(j) you shall have received an opinion of Xxxxxx & Xxxxxx
LLP (or such other counsel as may be named in the applicable Terms
Agreement), counsel to the Trustee, dated the Delivery Date, in form and
substance satisfactory to you and your counsel, to the effect that:
(i) X.X. Xxxxxx Chase Bank is a banking corporation
validly existing under the laws of the State of New York.
(ii) Each of the Indenture Trustee and the
Certificate Trustee has the requisite power and authority to
execute, deliver and perform its obligations under each of the
Agreements to which it is a party, and has taken all necessary
action to authorize the execution, delivery and performance by
it of each of the Agreements to which it is a party. For
purposes of this Section (j), "Agreements" shall mean the Master
Indenture, the Indenture Supplement, any applicable Enhancement
Agreement, the Pooling and Servicing Agreement and the
Collateral Series Supplement.
(iii) Each of the Agreements to which the Indenture
Trustee is a party has been duly executed and delivered by the
Indenture Trustee, and constitutes a legal, valid and binding
obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its respective terms,
except that certain of such obligations may be enforceable
solely against the Trust Estate and except that such enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation, or other similar laws affecting the
enforcement of creditors' rights generally, and by general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The acknowledgement by the Indenture Trustee of
the Transfer and Servicing Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
(v) The Supplement has been duly executed and
delivered by the Certificate Trustee, and the Pooling and
Servicing Agreement constitutes a legal, valid and binding
obligation of the Certificate Trustee, enforceable against the
Certificate Trustee in accordance with its respective terms,
except that certain of such obligations may be enforceable
solely against the Trust Property and except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, or other similar laws
affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
15
(vi) The Notes delivered on the date hereof have been
duly authenticated by the Indenture Trustee in accordance with
the terms of the Indenture.
(vii) The Collateral Certificates delivered on the
date hereof have been duly authenticated by the Indenture
Trustee in accordance with the terms of the Pooling and
Servicing Agreement.
(viii) No approval, authorization or other action by,
or filing with, any governmental authority of the United States
of America, or of the State of New York, having jurisdiction
over the banking or trust powers of the Indenture Trustee is
required in connection with (i) the execution and delivery by
the Indenture Trustee of the Agreements, (ii) the
acknowledgement of the Transfer and Servicing Agreement by the
Indenture Trustee or (iii) the execution and delivery by the
Certificate Trustee of the Collateral Series Supplement.
(ix) None of (a) the authentication and delivery of
the Notes or the Collateral Certificates, (b) the execution,
delivery and the performance of the Agreements by the Indenture
Trustee, (c) the acknowledgement of the Transfer and Servicing
Agreement by the Indenture Trustee, or (d) the execution and
delivery of the Collateral Series Supplement and the performance
of the Pooling and Servicing Agreement by the Certificate
Trustee conflicts with or will result in a violation of (A) any
law or regulation of the United States of America or the State
of New York governing the banking or trust powers of the
Indenture Trustee or the Certificate Trustee, as the case may
be, or (B) the Articles of Incorporation or Bylaws of the
Indenture Trustee or the Certificate Trustee, as the case may
be.
(k) you shall receive an opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., counsel to the Owner Trustee, dated the Delivery Date, and
satisfactory in form and substance to you and your counsel, to the
effect that:
(i) Wilmington Trust Company is duly incorporated
and validly existing as a Delaware banking corporation in good
standing under the laws of the State of Delaware and has the
power and authority to execute, deliver and perform the Trust
Agreement and to consummate the transactions contemplated
thereby, and, as Owner Trustee on behalf of the Trust, to
execute and deliver the Indenture, the Transferor and Servicing
Agreement, the Administration Agreement and any applicable
Enhancement Agreement (the Indenture, Transfer and Servicing
Agreement, the Administration Agreement and any applicable
Enhancement Agreement collectively referred to in this Section
6(k) and in Section 6(l) as the "Trust Documents") and the
Notes;
(ii) the Trust Agreement has been duly executed and
delivered by Wilmington Trust Company and constitutes the legal,
valid and binding obligation of Wilmington Trust Company
enforceable against Wilmington Trust Company in accordance with
its terms;
16
(iii) the Trust Documents have been duly, executed and
delivered by the Owner Trustee on behalf of the Note Trust;
(iv) neither the execution, delivery or performance
by Wilmington Trust Company of the Trust Agreement or, as Owner
Trustee on behalf of the Note Trust, of the Trust Documents, nor
the consummation of any of the transactions by Wilmington Trust
Company contemplated thereby, requires the consent or approval
of, the withholding of objection on the part of, the giving of
notice to, the filing, registration or qualification with, or
the taking of any other action in respect of, any governmental
authority or agency of the State of Delaware or the United
States of America governing the banking or trust powers of
Wilmington Trust Company, other than the filing of the banking
or Certificate of Trust for the Trust with the Delaware
Secretary of State;
(v) neither the execution, delivery or performance
by Wilmington Trust Company of the Trust Agreement or, as Owner
Trustee on behalf of the Note Trust, of the Trust Documents, nor
the consummation of any of the transactions by Wilmington Trust
Company contemplated thereby, is in violation of the certificate
of organization or bylaws of Wilmington Trust Company or of any
law, governmental rule or regulation of the State of Delaware or
of the United States of America governing the banking or trust
powers of Wilmington Trust Company or, to such counsel's
knowledge, without independent investigation, any indenture,
mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or, to
such counsel's knowledge, without independent investigation, or
any judgment or order of the State of Delaware or the United
States of America applicable to Wilmington Trust Company or its
properties; and
(vi) to such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits
or proceedings against Wilmington Trust Company in any court or
before any other governmental authority of the State of Delaware
which, if adversely determined, would materially and adversely
affect the ability of the Owner Trustee to enter into or perform
its obligations under the Trust Agreement.
(l) you shall receive an opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the Note Trust, dated the
Delivery Date, and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) the Note Trust has been duly formed and is
validly existing in good standing as a business trust under the Delaware
Business Trust Act, 12 Del. C. 3801 et seq. (referred to in this Section
6(l) as the "Trust Act"), and has the power and authority under the
Trust Agreement and the Trust Act to execute, deliver and perform its
obligations under the Trust Documents and the Notes;
17
(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 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 Note Trust;
(iv) The Trust Documents, the Exchangeable Transferor
Certificate and the Notes have been duly executed and delivered
by the Trust;
(v) The Exchangeable Transferor Certificate has been
duly authorized by the Trust and, when executed by the Trust,
authenticated by the Owner Trustee and delivered to the
purchasers thereof in accordance with the Trust Agreement, the
Exchangeable Transferor Certificate will be validly issued and
entitled to the benefits of the Trust Agreement;
(vi) the Transferor Interest is entitled to the
benefits of the Trust Agreement;
(vii) neither the execution, delivery or performance
by the Note Trust of the Trust Documents or the Notes, nor the
consummation of any of the transactions by the Note Trust
contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to
or, the filing, registration or qualification with, or the
taking or any other action in respect of, any governmental
authority or agency of the State of Delaware, other than the
filing of the Certificate of Trust with the Delaware Secretary
of State (which certificate of trust has been duly filed) and
the filing of any UCC financing statements with the Delaware
Secretary of State pursuant to the Indenture;
(viii) neither the execution, delivery and performance
by the Note Trust of the Trust Documents, nor the consummation
by the Note Trust of the transactions contemplated thereby, is
in violation of the Trust Agreement or of any law, rule, or
regulation of the State of Delaware applicable to the Note
Trust;
(ix) with respect to the Note Trust and the
Receivables: (a) there is no document, stamp, excise or other
similar tax imposed by the State of Delaware upon the perfection
of a security interest in the Collateral Certificate or the
Receivables, in the transfer of the Collateral Certificate or
the Receivables to or from the Note Trust or the Certificate
Trust or upon the issuance of the Exchangeable Transferor
Certificate or the Notes; (b) there is no personal property tax
imposed by the State of Delaware upon or measured by the corpus
of the Note Trust or the Certificate Trust; (c) the
characterization of the Note Trust and the Certificate Trust for
federal income tax purposes will be determinative of the
characterization of the Note Trust and the Certificate Trust for
Delaware income tax purposes and assuming the Note Trust and the
Certificate Trust will
18
not be taxed as associations or as publicly traded partnerships
for federal income tax purposes, neither the Note Trust nor the
Certificate Trust will be subject to Delaware income tax and
Noteholders who are not otherwise subject to Delaware income tax
will not be subject to tax by reason of their ownership of the
Notes and the receipt of income therefrom; and (d) any income
tax imposed by the State of Delaware that might be applicable to
the Note Trust would be based on "federal taxable income," and
for the purposes of determining such income, the
characterization of such income for federal income tax purposes
will be determinative, whether the characterization of the
transaction is that of a sale or a loan; and
(x) the Transferor is the sole beneficial owner of
the Note Trust.
(m) you shall receive an opinion or opinions of counsel to
the Enhancement Provider, if any, dated the Delivery Date, and
satisfactory in form and substance to you and your counsel, to the
effect that:
(i) the Enhancement Provider is duly organized and
validly existing under the laws of the jurisdiction of its
incorporation, is duly qualified and/or licensed to do business
in all jurisdictions where the nature of its operations as
contemplated in the applicable Enhancement Agreement requires
such qualification, and has the power and authority (corporate
and other) to enter into the applicable Enhancement Agreement
and to perform its obligations thereunder; and
(ii) each applicable Enhancement Agreement has been
duly authorized, executed and delivered by the Enhancement
Provider, and constitutes the legal, valid and binding
obligation of the Enhancement Provider, enforceable in
accordance with its terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, conservatorship, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights as
such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with
respect to the Enhancement Provider or in the event of any
moratorium or similar occurrence affecting the Enhancement
Provider.
(n) you shall have received reliance letters, if applicable,
with respect to any opinions delivered to the Transferor by foreign
counsel of each provider of Enhancement (the "Enhancement Provider") for
the applicable Series under an Enhancement Agreement, if any, which
opinions shall include matters relating to (i) the due organization of
the Enhancement Provider, (ii) the authorization, execution, delivery
and performance by the Enhancement Provider of the Enhancement Agreement
and the binding effect of the Enhancement Agreement, and (iii) the
enforceability in the foreign jurisdiction in which such Enhancement
Provider is located of a judgment obtained under the Enhancement
Agreement in a United States federal court or in a court of the State of
New York; such reliance letters shall include all matters that are
contained in the opinions of foreign counsel;
19
(o) you shall have received copies of, and reliance letters
(if applicable) with respect to, any opinions delivered to any
Enhancement Provider by any party to the transactions contemplated
hereby;
(p) you shall have received a duly executed Indemnification
Agreement, in form and substance satisfactory to you, among you, the
Transferor and the applicable Enhancement Provider;
(q) you shall have received the duly executed agreement of
Circuit City Stores, Inc., a Virginia corporation ("Circuit City"), in
form and substance satisfactory to you, regarding Circuit City's
undertaking to provide you with indemnification under this Agreement, as
described in Sections 7(a), (c) and (d).
The Transferor will furnish to you conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification.
(a) The Transferor will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the respective officers, directors and
employees of such person, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriters or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter and each such officer, director,
employee or controlling person for any legal or other expenses
reasonably incurred by such Underwriter and each such officer, director,
employee or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action, subject to
the following proviso, as such expenses are incurred; provided, however,
that (i) the Transferor will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement in
or omission or alleged omission made in any such documents in reliance
upon and in conformity with written information furnished to the
Transferor by an Underwriter specifically for use therein and (ii) such
indemnity with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any Preliminary Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Notes which are the
subject thereof, if such person was not given or sent a copy of the
Prospectus including the related Prospectus Supplement excluding
documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Notes to such person in any case where
such delivery is required by the Act and the untrue statement or alleged
untrue statement or omission or alleged omission
20
of a material fact contained in any Preliminary Prospectus and forming
the basis for the related cause of action was corrected in the
Prospectus or the related Prospectus Supplement. This indemnity
agreement will be in addition to any liability which the Transferor may
otherwise have.
(b) Each Underwriter severally, and not jointly, will
indemnify and hold harmless the Transferor, each of its directors, each
of its officers who have signed the Registration Statement and each
person, if any, who controls the Transferor within the meaning of the
Act or the Exchange Act and the respective officers, directors and
employees of each such person against any losses, claims, damages or
liabilities to which the Transferor or any such director, officer or
controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Transferor by such Underwriter specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Transferor or any such director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred. This
indemnity agreement will be in addition to any liability that such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party of the commencement thereof; but the omission and/or
delay so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than in
this Section unless such omission caused actual prejudice to the party
not notified; in case any such action is brought against any indemnified
party, and it notified the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein,
and, to the extent that it may elect by written notice jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with defense thereof other than reasonable costs of
investigation. If the defendants in any action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or
21
parties. No indemnifying party may avoid its duty to indemnify under
this Section 7 if such indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of any judgment in, any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
all claims that are the subject matter of such action. An indemnifying
party shall not be liable for any settlement of any claim effected
without its written consent.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section for any reason other than as
specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses,
except to the extent that contribution is not permitted under Section
11(f) of the Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered (i) the
relative benefit received by the Transferor on the one hand and the
Underwriters on the other hand from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, the relative benefits referred to in clause (i) above
but also the relative fault of the Transferor on the one hand and the
Underwriters on the other hand in connection with the statement or
omission that resulted in such liabilities and expenses as well as any
other relevant equitable considerations. The relative benefits received
by the Transferor on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds
of the offering of the Notes (before deducting expenses) received by the
Transferor bear to the total underwriting discounts and commissions
received by the Underwriters in connection with the offering of the
Notes. The relative fault of the parties shall be determined by
reference to, among other things, the parties' relative knowledge and
access to information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any statement
or omission, and any other equitable considerations appropriate under
the circumstances. The Transferor and the Underwriters agree that it
would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose).
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.
8. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Notes default in their obligation to purchase
Notes hereunder and under the Terms Agreement and the aggregate principal amount
of such Notes which such defaulting Underwriter (or group of Underwriters)
agreed, but failed, to purchase does not exceed 10% of the total principal
amount of the Notes set forth in such Terms Agreement, you may make arrangement
22
satisfactory to the Transferor for the purchase of such Notes by other persons,
including any of the Underwriters participating in such offering, but if no such
arrangements are made within a period of 36 hours after the applicable Delivery
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective total commitments hereunder and under such Terms
Agreement, to purchase the Notes which such defaulting Underwriters (or group of
Underwriters) agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Notes with respect to which
such default or defaults occur is more than 10% of the total principal amount of
the Notes set forth in such Terms Agreement and arrangements satisfactory to you
and the Transferor for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Transferor,
except as provided in Section 10. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Notes on the Delivery Date shall
be terminable by the Underwriters by written notice delivered to the Transferor
if at any time on or prior to the Delivery Date (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, or there shall have been any setting of minimum prices for trading on
such exchange or any suspension of trading of the securities of Circuit City on
any exchange or in the over-the-counter market, (ii) a general moratorium on
commercial banking activities in New York or Georgia shall have been declared by
any of Federal, New York or Georgia authorities, (iii) there shall have occurred
any material outbreak or escalation of hostilities or other calamity or crisis,
the effect of which on the financial markets of the United States is such as to
make it, in your reasonable judgment as representatives of the Underwriters,
impracticable to market the Notes or to settle transactions in the Notes on the
terms and in the manner contemplated in the Prospectus, (iv) the rating of
another Series of Notes shall have been reduced or withdrawn or (v) any change
or any development involving a prospective change, materially and adversely
affecting (A) the Trust Property taken as whole or (B) the business or
properties of the Transferor, FNANB or Circuit City occurs, which, in your
reasonable judgment as representatives of the Underwriters, in the case of
either (A) or (B), makes it impracticable to market the Notes on the terms and
in the manner contemplated in the Prospectus.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements by the Transferor or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriters, the Transferor or any of their
respective officers or directors or any controlling person, and will survive
delivery of and payment for the Notes.
If this Agreement is terminated pursuant to Sections 8 and 9 or if for
any reason the purchase of the Notes by the Underwriters is not consummated, the
Transferor shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5(g), and the obligations of the Transferor and the
Underwriters pursuant to Section 7 or 8 shall remain in effect.
23
11. Notices. All communications hereunder will be in writing and, if
sent to an Underwriter, will be mailed, delivered or telecopied to Banc of
America Securities LLC, Hearst Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, facsimile number 000-000-0000, to
Wachovia Securities, Inc., One Wachovia Center 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Asset Backed Finance, facsimile
number 000-000-0000 and to any other Underwriter at such address, if any, as is
specified in writing to the Transferor for notices hereunder, or if sent to the
Transferor, will be mailed, delivered or telecopied to Second Floor, Suite 288,
0 Xxxx Xxxxxx, Xxxxxxxx XX 00 Xxxxxxx, Xxxxxxxxx: Treasurer, facsimile number
(000) 000-0000, or such other address specified in the applicable Terms
Agreement; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telecopied to such Underwriter at the
address furnished by it.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
13. Representations of Underwriters. You will act for the several
Underwriters in connection with this financing, and any action under this
Agreement and any Terms Agreement taken by you will be binding upon all the
Underwriters identified in such Terms Agreement.
14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Transferor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Transferor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BANC OF AMERICA SECURITIES LLC,
as Representative of the
several Underwriters
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
WACHOVIA SECURITIES, INC.,
as Representative of the
several Underwriters
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
25
EXHIBIT A
DC FUNDING INTERNATIONAL, INC.
FNANB CREDIT CARD MASTER NOTE TRUST
ASSET BACKED NOTES
TERMS AGREEMENT
Dated: ____________, 20__
To: DC Funding International, Inc., as Transferor under
the Amended and Restated Master Pooling and Servicing
Agreement dated as of December 31, 2001.
Re: Underwriting Agreement dated May ___, 2003 (the "Agreement")
Title: Asset Backed Notes, Series ________ [State by Class
if more than one Class].
Registration No.: ______________________________.
Initial Principal Amount, Series and Class Designation Schedule: [insert
relevant description of Series and Classes of Notes].
Note Rating: [" " by Xxxxx'x Investors Service, Inc.] [" " by Standard &
Poor's Corporation] [" " by [other Rating Agency]] [State by Class if more
than one Class].
Note Rate: [______% per annum] [Floating rate--describe] [State by Class if more
than one Class].
Terms of Sale: [The purchase price for the Notes to the Underwriter[s] will be
___% of the aggregate principal amount of the Notes as of ____________, 20__,
plus accrued interest at the Note Rate from ____________, 20__, together with
estimated expenses of approximately $____________.] [The Underwriters will offer
the Notes to the public from time to time, in negotiated transactions or
otherwise, at varying prices to be determined at the time of sale.]
Distribution Dates: ______________________________.
Enhancement: Class B Floating Rate Notes, Series 2003-A, amounts on deposit in a
spread account and Note Guaranty Insurance Policy to be issued by Ambac
Assurance Corporation.
A-1
Delivery Date and Location: ___:___ A.M., Eastern time, on ____________, 20__,
or at such other time not later than seven full business days thereafter as may
be agreed upon, at the offices of [McGuireWoods LLP, One Xxxxx Center, 000 Xxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000] [other offices].
Expenses: The Transferor shall reimburse the Underwriters for all out-of-pocket
expenses and reasonable legal fees and expenses (which legal fees and expenses
may not exceed $80,000) of the Underwriters.
Tax Treatment: Notwithstanding anything herein to the contrary, the Transferor,
each Underwriter and any other taxpayer that participates in the transactions
contemplated hereby may disclose without limitation of any kind, any information
with respect to the "tax treatment" and "tax structure" (in each case, within
the meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to any of the foregoing relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Notes and transactions
contemplated hereby. It is hereby confirmed that each of the foregoing has been
so authorized since the commencement of discussions regarding the transactions
contemplated hereby.
Entire Agreement: Notwithstanding anything in the Agreement or in this Terms
Agreement to the contrary, the Agreement and this Terms Agreement constitute the
entire agreement and understanding among the parties hereto with respect to the
purchase and sale of the above-referenced Notes. This Terms Agreement may be
amended only by written agreement of the parties thereto.
The Underwriters [named in Schedule 1 hereto agree, severally and not
jointly], subject to the terms and provisions of the Agreement, which is
incorporated by reference herein and made a part hereof, to purchase the Initial
Principal Amount of Notes [set forth opposite their names in Schedule 1].
A-2
Very truly yours,
BANC OF AMERICA SECURITIES LLC,
as Representative of the several
Underwriters and as an Underwriter
By:
------------------------------------
Name:
Title:
WACHOVIA SECURITIES, INC.,
as Representative of the several
Underwriters and as an Underwriter
By:
------------------------------------
Name:
Title:
Accepted:
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By:
------------------------------------
Name:
Title:
A-3
SCHEDULE 1
$__________ Principal Amount of [Class ______] Asset Backed Notes, Series ______
Principal Amount
----------------
[Name of Underwriters]
$
----------------
$
================
$__________ Principal Amount of [Class ______] Asset Backed Notes, Series ______
Principal Amount
----------------
[Name of Underwriters]
$
----------------
$
================
A-4
