EXHIBIT 1.1 - UNDERWRITING AGREEMENT (STANDARD TERMS)
DC FUNDING INTERNATIONAL, INC.
Transferor
FNANB CREDIT CARD MASTER NOTE TRUST
July 11, 2002
UNDERWRITING AGREEMENT
(Standard Terms)
Banc of America Securities LLC,
(as Representative of the several Underwriters
listed in Schedule 1 to the Terms Agreement)
Bank of America Corporate Center
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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
representative or through an underwriting syndicate managed by you. Whenever the
Transferor determines to make such an offering of Notes to which this Agreement
shall apply, it will enter into an agreement (a "Terms Agreement") providing for
the sale of such Notes to, and the purchase and offering thereof by, (i) you,
(ii) you and such other underwriters (such other underwriters to be approved by
the Transferor, which approval shall not be unreasonably withheld) who execute
such Terms Agreement and agree thereby to become obligated to purchase Notes
from the Transferor or (iii) you and such other underwriters, if any, selected
by you (such other underwriters to be approved by the Transferor, which approval
shall not be unreasonably withheld) as have authorized you to enter into such
Terms Agreement on their behalf (in each case, the "Underwriters"). (It is
understood that the Transferor shall not be obligated to sell any particular
Series or Class of Notes offered pursuant to the Registration Statement to you
or you and other Underwriters.) Execution of a Terms Agreement by the Transferor
shall be conclusive evidence of the Transferor's approval of all Underwriters
named therein. Such Terms Agreement shall specify the initial principal amount
of the Notes of each Series and Class of the Notes to be issued and their terms
not otherwise specified in this Agreement, the price at which such Notes are to
be purchased by the Underwriters from the Transferor, the aggregate amount of
Notes to be purchased by you and any other Underwriter that is a party to such
Terms Agreement and the initial public offering price or the method by which the
price at which such Notes are to be sold will be determined. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written communication
between or among the Underwriters and the Transferor. Each such offering of the
Notes for which a Terms Agreement is entered into will be governed by this
Agreement, as supplemented by such Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the
Underwriters participating in the offering of such Notes.
2. Representations and Warranties of the Transferor. The Transferor
represents and warrants to you as of the date hereof and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) a registration statement on Form S-3 (having the registration
number stated in the applicable Terms Agreement), including a prospectus
and such amendments thereto as may have been required to the date hereof,
relating to the Notes and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with the Securities and Exchange Commission (the
"Commission") (which may have included one or more preliminary prospectuses
and prospectus supplements (each, a "Preliminary Prospectus") meeting the
requirements of Rule 430 of the Act), and such registration statement, as
amended, has become effective; such registration statement, as amended, and
the prospectus relating to the sale of the Notes offered thereby by the
Transferor constituting a part thereof, as from time to time amended or
supplemented (including any prospectus filed with the Commission pursuant
to Rule 424(b) of the rules and regulations of the Commission (the "Rules
and Regulations") under the Act), are respectively referred to herein as
the "Registration Statement" and the "Prospectus"; provided, however, that
a supplement to the Prospectus prepared pursuant to Section 5(a) hereof
(each, a "Prospectus
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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;
(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
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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
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;
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(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 ▇▇▇▇▇ Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other offices specified in the applicable Terms Agreement, at
such time as shall be specified in the applicable Terms Agreement, or at such
other time thereafter or other place as you and the Transferor shall agree upon,
each such time being therein referred to as a "Delivery Date". Delivery of such
Notes shall be made by the Transferor to the Underwriters against payment of the
purchase price specified in the applicable Terms Agreement in same day funds
wired to such bank as may be designated by the Transferor, or by such other
manner of payment as may be agreed upon by the Transferor and you. Unless
otherwise provided in the applicable Terms Agreement, payment for the Notes
shall be made against delivery through the facilities of The Depository Trust
Company ("DTC") of Book-Entry Notes to you for the respective accounts of the
several Underwriters. Unless otherwise provided in a Terms Agreement, the Notes
so to be delivered shall be global Notes registered in the name of Cede & Co.,
as nominee for DTC. The number and denomination of definitive Notes so delivered
shall be as specified by DTC. The definitive certificates for the Notes will be
made available for inspection and packaging by you at the offices of
McGuireWoods LLP, or such other offices specified in the applicable Terms
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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;
(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
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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.
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
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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 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;
(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;
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(v) 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 of general
applicability relating to or affecting creditors' rights generally, (B) the
application of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and (C)
the enforceability under certain circumstances of provisions indemnifying a
party against liability where such indemnification is contrary to public
policy;
(vi) no consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated herein, in the applicable
Terms Agreement, the Pooling and Servicing Agreement, the Collateral Series
Supplement, the Transfer and Servicing Agreement, the Purchase Agreement
and 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;
(vii) the execution, delivery and performance by the Transferor of its
obligations under this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement, the Collateral Series Supplement, the
Transfer and Servicing Agreement, the Purchase Agreement, the transfer of
the Receivables to the Certificate Trust, the issuance and sale of the
Notes, and the consummation of any other of the transactions contemplated
herein, in the applicable Terms Agreement, the 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, the terms of any material indenture or
other material agreement or instrument known to such counsel to which the
Transferor is a party or by which it or its properties are bound or any
rule, order known to such counsel, statute or regulation, of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Transferor; provided, however, that such counsel need
express no opinion as to state securities or Blue Sky laws;
(viii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of this Agreement,
the applicable Terms Agreement, the Master Indenture, the applicable
Indenture Supplement, the Pooling and Servicing Agreement, the Collateral
Series Supplement, the Transfer and Servicing
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Agreement, the Purchase Agreement, any applicable Enhancement Agreement or
the Notes; (B) seeking to prevent the issuance of the Notes or the
consummation of any of the 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 (C) seeking adversely to affect the federal income tax attributes of the
Notes as described in the Prospectus under the headings "Series 2002-[___]
Summary - Tax Status of the Offered Notes and the Trust" and "Material
Federal Income Tax Consequences";
(ix) the Registration Statement has become effective under the Act and
the Prospectus has been filed with the Commission pursuant to Rule 424(b)
promulgated under the Act; to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened under the Act; and the Registration Statement and the Prospectus
(other than the financial, numerical and statistical information contained
therein as to which such counsel need express no opinion) as of their
respective effective date or date of issuance complied as to form in all
material respects with the requirements of the Act and the rules and
regulations promulgated thereunder;
(x) this Agreement, the applicable Terms Agreement, the Indenture, the
applicable Indenture Supplement, the Pooling and Servicing Agreement, the
Collateral Series Supplement, the Transfer and Servicing Agreement, the
Purchase Agreement, any applicable Enhancement Agreement and the Notes
conform in all material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus; and
(xi) the Indenture and the applicable Indenture Supplement have been
qualified under the Trust Indenture Act of 1939, as amended, and neither
the Certificate Trust nor the Note Trust is, or immediately following the
sale of the Notes pursuant hereto will be, required to be registered under
the 1940 Act.
Such counsel also shall state that, subject to its customary practices and
limitations relating to the scope of such counsel's participation in the
preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein, it has no reason
to believe that at its effective date the Registration Statement contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus on the applicable Delivery Date includes any
untrue statement of a material fact or omits to state a material fact necessary
to make the
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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 own the
Receivables, sell the Receivables to the Transferor pursuant to the
Purchase Agreement, and service the Receivables pursuant to the
Pooling and Servicing Agreement or the Transfer and Servicing
Agreement, as the case may be;
(ii) FNANB has full power and authority to execute and deliver
the Purchase Agreement, the Pooling and Servicing Agreement, the
Collateral Series Supplement and the Transfer and Servicing Agreement
and to consummate the transactions contemplated therein;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of FNANB and have been
duly executed and delivered by FNANB;
(iv) the Purchase Agreement, the Pooling and Servicing Agreement,
the Collateral Series Supplement and the Transfer and Servicing
Agreement each constitutes the legal, valid and binding agreement of
FNANB, enforceable against FNANB in accordance with its terms,
subject, as to enforcement, to (A) the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium,
conservatorship, receivership, or other similar laws of general
applicability relating to or affecting creditors' rights generally or
the rights of creditors of national banking associations, (B) the
application of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and
(C) the enforceability under certain circumstances of provisions
indemnifying a party against liability where such indemnification is
contrary to public policy;
(v) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
the Federal banking laws for the consummation of the transactions
contemplated in the Purchase Agreement, the Pooling and Servicing
Agreement, the Collateral Series Supplement or the Transfer and
Servicing Agreement, except such as have been obtained or made;
11
(vi) the execution, delivery and performance by FNANB of its
obligations under the Purchase Agreement, the Pooling and Servicing
Agreement, the Collateral Series Supplement and the Transfer and
Servicing Agreement, the sale of Receivables to the Transferor, and
the consummation of any other of the transactions contemplated in the
Purchase Agreement, the Pooling and Servicing Agreement, the
Collateral Series Supplement and the Transfer and Servicing Agreement,
will not conflict with, result in a breach of or violation of any of
the terms of, or constitute a default under, the articles of
association or by-laws of FNANB, each as amended, the terms of any
material indenture or other material agreement or instrument known to
such counsel to which FNANB is a party or by which it or its
properties are bound or any rule, order known to such counsel, statute
or regulation, to the extent the foregoing relate to the Federal
banking law, of any court, regulatory body, administrative agency or
governmental body having jurisdiction over FNANB;
(vii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of the Purchase
Agreement, the Master Indenture, the applicable Indenture Supplement,
the Pooling and Servicing Agreement, the Collateral Series Supplement
or the Transfer and Servicing Agreement or (B) seeking to prevent the
consummation of any of the transactions contemplated by the Purchase
Agreement, the Master Indenture, the applicable Indenture Supplement,
the Pooling and Servicing Agreement, the Collateral Series Supplement
or the Transfer and Servicing Agreement which if adversely determined
would materially and adversely affect the performance by FNANB of its
obligations under, or the validity or enforceability of, the Purchase
Agreement, the Master Indenture, the applicable Indenture Supplement,
the Pooling and Servicing Agreement, the Collateral Series Supplement
and the Transfer and Servicing Agreement;
(f) you shall have received an opinion of McGuireWoods LLP (or such other
counsel as shall be specified in the applicable Terms Agreement), special
counsel for the Transferor, dated the Delivery Date, in form and substance
satisfactory to you and your counsel, substantially to the effect that:
(i) the statements in the Prospectus under the heading "Material
Federal Income Tax Consequences" and the summary thereof under the heading
"Series 2002-[___] Summary - Tax Status of the Offered Notes and the
Trust," to the extent they constitute matters of Federal law or legal
conclusions with respect thereto, have been reviewed by such counsel and
are correct in all material respects; and
(ii) the statements in the Prospectus under the headings "Legal
Matters Relating to the Receivables" and "ERISA Considerations," to the
extent they
12
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, ▇▇▇▇ & Maw (or such other
counsel as may be named in the applicable Terms Agreement), special counsel to
the Underwriters, such opinion or opinions, dated the Delivery Date, in form and
substance satisfactory to you, with respect to the organization of the
Transferor, the validity of the Notes, the Registration Statement, the
Prospectus and other related matters as you may require, and the Transferor
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass on such matters;
(i) you shall have received, with respect to the Transferor, a certificate,
dated the Delivery Date, of a Vice President or more senior officer of the
Transferor in which such officer, to the best of his or her knowledge after
reasonable investigation, shall state that (A) the representations and
warranties of the Transferor in this Agreement are true and correct in all
material respects on and as of the Delivery Date, (B) the Transferor has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and under the
applicable Terms Agreement at or prior to the Delivery Date, (C) the
Registration Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are threatened by the Commission and
(D) subsequent to the date of the applicable Prospectus Supplement, there has
been no material adverse change in the condition (financial or otherwise) of the
Transferor except as set forth in or contemplated in the Registration Statement
and the Prospectus or as described in such certificate;
(j) you shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, (or such
other counsel as may be named in the applicable Terms Agreement), counsel to the
Indenture Trustee, dated the Delivery Date, in form and substance satisfactory
to you and your counsel, to the effect that:
13
(i) the Indenture Trustee has been duly incorporated and is
validly existing as a banking organization under the laws of the State
of [_____] and has the power and authority to enter into and to
perform all actions required of it under the Master Indenture, the
applicable Indenture Supplement, the Collateral Series Supplement and
any applicable Enhancement Agreement;
(ii) each of the Master Indenture, the applicable Indenture
Supplement and the Collateral Series Supplement has been duly
authorized, executed and delivered by the Indenture Trustee and
constitutes a legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with
its terms, except as such enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, reorganization, moratorium,
conservatorship receivership or other similar laws now or hereafter in
effect relating to the enforcement of creditors' rights in general, as
such laws would apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship, receivership
or similar occurrence affecting the Indenture Trustee, and (B) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) as well as concepts of
reasonableness, good faith and fair dealing;
(iii) the Notes have been duly authenticated and delivered by the
Indenture Trustee;
(iv) the execution and delivery of the Master Indenture, the
applicable Indenture Supplement, the Collateral Series Supplement and
any applicable Enhancement Agreement by the Indenture Trustee and the
performance by the Indenture Trustee of their respective terms do not
conflict with or result in a violation of (A) any law or regulation of
the United States of America or the State of New York governing the
banking or trust powers of the Indenture Trustee, or (B) the
certificate of incorporation or articles of association or by-laws of
the Indenture Trustee; and
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Indenture Trustee is required in connection with the
execution and delivery by the Indenture Trustee of the Master
Indenture, the applicable Indenture Supplement, the Collateral Series
Supplement and any applicable Enhancement Agreement or the performance
by the Indenture Trustee thereunder;
(k) you shall receive an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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
14
the Trust Agreement, and, as Owner Trustee on behalf of the Trust, to
execute and deliver the Master Indenture and the Transferor and
Servicing Agreement (the Master Indenture and Transfer and Servicing
Agreement collectively referred to in this Section 6(k) and in Section
6(l) as the "Trust Documents") and to consummate the transactions
contemplated thereby;
(ii) the Trust Agreement has been duly authorized, executed and
delivered by Wilmington Trust Company and constitutes the legal, valid
and binding obligation of Wilmington Trust Company enforceable against
Wilmington Trust Company in accordance with its terms;
(iii) the Trust Documents have been duly authorized, executed and
delivered by the Owner Trustee on behalf of the Note Trust;
(iv) neither the execution, delivery or performance by Wilmington
Trust Company of the Trust Agreement or, as Owner Trustee on behalf of
the Note Trust, of the Trust Documents, nor the consummation of any of
the transactions by Wilmington Trust Company contemplated thereby,
requires the consent or approval of, the withholding of objection on
the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of,
any governmental authority or agency of the State of Delaware or the
United States of America governing the trust powers of Wilmington
Trust Company, other than the filing of the Certificate of Trust for
the Trust with the Delaware Secretary of State;
(v) neither the execution, delivery or performance by Wilmington
Trust Company of the Trust Agreement or, as Owner Trustee on behalf of
the Note Trust, of the Trust Documents, nor the consummation of any of
the transactions by Wilmington Trust Company contemplated thereby, is
in violation of the certificate of organization or bylaws of
Wilmington Trust Company or of any law, governmental rule or
regulation of the State of Delaware or of the United States of America
governing the banking or trust powers of Wilmington Trust Company or,
to such counsel's knowledge, without independent investigation, any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument
to which it is a party or by which it is bound or, to such counsel's
knowledge, without independent investigation, or any judgment or order
applicable to Wilmington Trust Company; and
(vi) to such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
governmental authority which, if adversely determined, would
materially and adversely affect the ability of the Owner Trustee to
carry our the transactions contemplated by the Trust Agreement.
15
(l) you shall receive an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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");
(ii) the Trust Agreement is a legal, valid and binding obligation
of the Transferor and the Owner Trustee, enforceable against the
Transferor and the Owner Trustee, in accordance with its terms;
(iii) under the Trust Act and the Trust Agreement, the execution
and delivery of the Transfer and Servicing Agreement, the issuance of
the Notes, and the granting of the Collateral to the Indenture Trustee
as security for the Notes has been duly authorized by all necessary
trust action on the part of the Note Trust;
(iv) under the Trust Act and the Trust Agreement, the Note Trust
has (i) the trust power and authority to execute, deliver and perform
its obligations under the Trust Documents and the Notes, and (ii) duly
authorized, executed and delivered such agreements and obligations;
(v) the Transferor Interest is entitled to the benefits of the
Trust Agreement;
(vi) neither the execution, delivery or performance by the Note
Trust of the Trust Documents or the Notes, nor the consummation of any
of the transactions by the Note Trust contemplated thereby, requires
the consent or approval of, the withholding of objection on the part
of, the giving of notice to or, the filing, registration or
qualification with, or the taking or any other action in respect of,
any governmental authority or agency of the State of Delaware, other
than the filing of the Certificate of Trust with the Delaware
Secretary of State (which certificate of trust has been duly filed)
and the filing of any UCC financing statements with the Delaware
Secretary of State pursuant to the Indenture;
(vii) neither the execution, delivery and performance by the Note
Trust of the Trust Documents, nor the consummation by the Note Trust
of the transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule, or regulation of the State of Delaware
applicable to the Note Trust;
(viii) with respect to the Note Trust and the Receivables: (a)
there is no document, stamp, excise or other similar tax imposed by
the State of Delaware upon the perfection of a security interest in
the Collateral Certificate or the Receivables, in the transfer of the
Collateral Certificate or the Receivables to or from the Note Trust or
the Certificate Trust or upon the issuance of the Collateral
Certificate or the Notes; (b) there is no personal property tax
imposed by the State of Delaware upon or measured by the corpus of the
Note Trust or the Certificate Trust; (c) the characterization of the
Note Trust and the Certificate Trust for
16
federal income tax purposes will be determinative of the
characterization of the Note Trust and the Certificate Trust for
Delaware income tax purposes and assuming the Note Trust and the
Certificate Trust will not be taxed as associations or as publicly
traded partnerships for federal income tax purposes, neither the Note
Trust nor the Certificate Trust will be subject to Delaware income tax
and Noteholders who are not otherwise subject to Delaware income tax
will not be subject to tax by reason of their ownership of the Notes
and the receipt of income therefrom; and (d) any income tax imposed by
the State of Delaware that might be applicable to the Note Trust would
be based on "federal taxable income," and for the purposes of
determining such income, the characterization of such income for
federal income tax purposes will be determinative, whether the
characterization of the transaction is that of a sale or a loan; and
(ix) the Transferor is the sole beneficial owner of the Note
Trust.
(m) you shall receive an opinion or opinions of counsel to the Enhancement
Provider, if any, dated the Delivery Date, and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) the Enhancement Provider is duly organized and validly
existing under the laws of the jurisdiction of its incorporation, is
duly qualified and/or licensed to do business in all jurisdictions
where the nature of its operations as contemplated in the applicable
Enhancement Agreement requires such qualification, and has the power
and authority (corporate and other) to enter into the applicable
Enhancement Agreement and to perform its obligations thereunder; and
(ii) each applicable Enhancement Agreement has been duly
authorized, executed and delivered by the Enhancement Provider, and
constitutes the legal, valid and binding obligation of the Enhancement
Provider, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
as such laws would apply in the event of the insolvency, liquidation
or reorganization or other similar occurrence with respect to the
Enhancement Provider or in the event of any moratorium or similar
occurrence affecting the Enhancement Provider.
(n) you shall have received reliance letters, if applicable, with respect
to any opinions delivered to the Transferor by foreign counsel of each provider
of Enhancement (the "Enhancement Provider") for the applicable Series under an
Enhancement Agreement, if any, which opinions shall include matters relating to
(i) the due organization of the Enhancement Provider, (ii) the authorization,
execution, delivery and performance by the Enhancement Provider of the
Enhancement Agreement and the binding effect of the Enhancement Agreement, and
(iii) the enforceability in the foreign jurisdiction in which such Enhancement
Provider is located of a judgment obtained under the Enhancement Agreement in a
United States federal court or in a court of the State of
17
New York; such reliance letters shall include all matters that are contained in
the opinions of foreign counsel;
(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
18
excluding documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Notes to such person in any case where
such delivery is required by the Act and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in any Preliminary Prospectus and forming the basis for the
related cause of action was corrected in the Prospectus or the related
Prospectus Supplement. This indemnity agreement will be in addition to any
liability which the Transferor may otherwise have.
(b) Each Underwriter severally, and not jointly, will indemnify and
hold harmless the Transferor, each of its directors, each of its officers
who have signed the Registration Statement and each person, if any, who
controls the Transferor within the 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
19
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. No
indemnifying party may avoid its duty to indemnify under this Section 7 if
such indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to
the entry of any judgment in, any pending or threatened action in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from
all liability on all claims that are the subject matter of such action. An
indemnifying party shall not be liable for any settlement of any claim
effected without its written consent.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered (i) the relative benefit received by
the Transferor on the one hand and the Underwriters on the other hand from
the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, the relative benefits referred to
in clause (i) above but also the relative fault of the Transferor on the
one hand and the Underwriters on the other hand in connection with the
statement or omission that resulted in such liabilities and expenses as
well as any other relevant equitable considerations. The relative benefits
received by the Transferor on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds of the offering of the Notes (before deducting expenses) received
by the Transferor bear to the total underwriting discounts and commissions
received by the Underwriters in connection with the offering of the Notes.
The relative fault of the parties shall be determined by reference to,
among other things, the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission,
and any other equitable considerations appropriate under the circumstances.
The Transferor and the Underwriters agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose).
8. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Notes default in their obligation to purchase
Notes hereunder and under the Terms Agreement and the aggregate principal amount
of such Notes which such defaulting Underwriter (or group of Underwriters)
agreed, but failed, to purchase does not exceed 10% of the total principal
amount of the Notes set forth in such Terms Agreement, you may make arrangement
satisfactory to the Transferor for the purchase of such Notes by other persons,
including any of the Underwriters participating in such offering, but if no such
arrangements are made within a period of 36 hours after the applicable Delivery
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective total commitments hereunder and under such Terms
Agreement, to purchase the Notes which such defaulting Underwriters (or group of
20
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 representative of the Underwriters, impracticable to
market the Notes or to settle transactions in the Notes on the terms and in the
manner contemplated in the Prospectus, (iv) the rating of another Series of
Notes shall have been reduced or withdrawn or (v) any change or any development
involving a prospective change, materially and adversely affecting (A) the Trust
Property taken as whole or (B) the business or properties of the Transferor,
FNANB or Circuit City occurs, which, in your reasonable judgment as
representative of the Underwriters, in the case of either (A) or (B), makes it
impracticable to market the Notes on the terms and in the manner contemplated in
the Prospectus.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Transferor or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Underwriters, the Transferor or any of their respective officers or
directors or any controlling person, and will survive delivery of and payment
for the Notes.
If this Agreement is terminated pursuant to Sections 8 and 9 or if for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Transferor shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5(g), and the obligations of the Transferor and the
Underwriters pursuant to Section 7 or 8 shall remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent
to an Underwriter, will be mailed, delivered or telecopied to Banc of America
Securities LLC, Bank of America Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, facsimile number
▇▇▇-▇▇▇-▇▇▇▇ and to any other Underwriter at such address, if any, as is
specified in writing to the Transferor for notices hereunder, or if sent to the
21
Transferor, will be mailed, delivered or telecopied to Third Floor, Suite 288, ▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Treasurer, facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇, 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]
22
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
23
EXHIBIT A
DC FUNDING INTERNATIONAL, INC.
FNANB CREDIT CARD MASTER NOTE TRUST
ASSET BACKED NOTES
TERMS AGREEMENT
Dated: ____________, 20__
To: DC Funding International, Inc., as Transferor under
the Amended and Restated Master Pooling and Servicing
Agreement dated as of December 31, 2001.
Re: Underwriting Agreement dated July ___, 2002 (the "Agreement")
Title: Asset Backed Notes, Series ________ [State by Class if more than one
Class].
Registration No.: ______________________________.
Initial Principal Amount, Series and Class Designation Schedule: [insert
relevant description of Series and Classes of Notes].
Note Rating: [" " by ▇▇▇▇▇'▇ Investors Service, Inc.] [" " by Standard & Poor's
Corporation] [" " by [other Rating Agency]] [State by Class if more than one
Class].
Note Rate: [______% per annum] [Floating rate--describe] [State by Class if more
than one Class].
Terms of Sale: [The purchase price for the Notes to the Underwriter[s] will be
___% of the aggregate principal amount of the Notes as of ____________, 20__,
plus accrued interest at the Note Rate from ____________, 20__, together with
estimated expenses of approximately $____________.] [The Underwriters will offer
the Notes to the public from time to time, in negotiated transactions or
otherwise, at varying prices to be determined at the time of sale.]
Distribution Dates: ______________________________.
Delivery Date and Location: ___:___ A.M., Eastern time, on ____________, 20__,
or at such other time not later than seven full business days thereafter as may
be agreed upon, at the offices
A-1
of [McGuireWoods LLP, One ▇▇▇▇▇ Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇] [other offices].
Notwithstanding anything in the Agreement or in this Terms Agreement to the
contrary, the Agreement and this Terms Agreement constitute the entire agreement
and understanding among the parties hereto with respect to the purchase and sale
of the above-referenced Notes. This Terms Agreement may be amended only by
written agreement of the parties thereto.
The Underwriters [named in Schedule 1 hereto agree, severally and not
jointly], subject to the terms and provisions of the Agreement, which is
incorporated by reference herein and made a part hereof, to purchase the Initial
Principal Amount of Notes [set forth opposite their names in Schedule 1].
Very truly yours,
BANC OF AMERICA SECURITIES LLC,
as Underwriter
By:
-----------------------------------------
Name:
Title
Accepted:
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By:
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
A-2
SCHEDULE 1
$____________ Principal Amount of [Class ______] Asset Backed Notes,
Series ____
Principal Amount
----------------
[Name of Underwriters] $
------------------
$
==================
$____________ Principal Amount of [Class ______] Asset Backed Notes,
Series _______
Principal Amount
----------------
[Name of Underwriters]
$
-------------------
$
===================
A-3