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Exhibit 1.1
August 9, 2001
World Financial Network Credit Card Master Note Trust
$702,000,000 Class A Floating Rate Asset Backed
Notes, Series 2001-A
$76,500,000 Class B Floating Rate Asset Backed
Notes, Series 2001-A
UNDERWRITING AGREEMENT
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J. P. Morgan Securities Inc.,
as Representative of the
Underwriters set forth herein (the "REPRESENTATIVE")
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
1. INTRODUCTORY. WFN Credit Company, LLC ("WFN LLC") proposes to
cause World Financial Network Credit Card Master Note Trust (the "ISSUER") to
issue $702,000,000 aggregate principal amount of World Financial Network Credit
Card Master Note Trust Class A Floating Rate Asset Backed Notes, Series 2001-A
(the "CLASS A NOTES"), $76,500,000 aggregate principal amount of World Financial
Network Credit Card Master Note Trust Class B Floating Rate Asset Backed Notes,
Series 2001-A (the "CLASS B NOTES"), and $121,500,000 aggregate principal amount
of World Financial Network Credit Card Master Note Trust Class C Asset Backed
Notes, Series 2001-A (the "CLASS C NOTES" and, together with the Class A Notes
and the Class B Notes, the "NOTES"). The Class A Notes and the Class B Notes are
referred to herein, collectively, as the "OFFERED NOTES."
The Issuer will be a Delaware statutory business trust formed pursuant
to (a) a Trust Agreement, to be dated as of August 1, 2001 (the "TRUST
AGREEMENT"), between WFN LLC, as transferor (the "TRANSFEROR"), and Chase
Manhattan Bank USA, National Association ("CHASE"), as owner trustee (the "OWNER
TRUSTEE"), and (b) the filing of a certificate of trust with the Secretary of
State of Delaware on July 27, 2001. The Notes will be issued pursuant to a
Master Indenture, to be dated as of August 1, 2001 (the "MASTER INDENTURE"),
between the Issuer and BNY Midwest Trust Company, as indenture trustee (the
"INDENTURE TRUSTEE"), as supplemented by the Series 2001-A Indenture Supplement
with respect to the Notes, to be dated as of August 21, 2001 (the "INDENTURE
SUPPLEMENT" and, together with the Master Indenture, the "INDENTURE").
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Initially, the primary asset of the Issuer will be a certificate (the
"COLLATERAL CERTIFICATE") representing a beneficial interest in the assets held
in the World Financial Network Credit Card Master Trust ("WFNMT"), to be issued
pursuant to the Second Amended and Restated Pooling and Servicing Agreement,
dated as of January 17, 1996, amended and restated as of September 17, 1999 and
amended and restated a second time as of August 1, 2001 (as heretofore amended,
the "AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT"), among the
Transferor, World Financial Network National Bank (the "BANK"), as servicer (the
"SERVICER"), and BNY Midwest Trust Company (successor-in-interest to the
corporate trust administration of Harris Trust and Savings Bank), as trustee
(the "WFNMT TRUSTEE"), and the Collateral Series Supplement to the Amended and
Restated Pooling and Servicing Agreement, to be dated as of August 21, 2001 (the
"COLLATERAL SUPPLEMENT" and, together with the Amended and Restated Pooling and
Servicing Agreement, the "PSA"). The assets of WFNMT include, among other
things, certain amounts due (the "RECEIVABLES") on a pool of private label
credit card accounts of the Bank (the "ACCOUNTS").
The Receivables are transferred to WFNMT pursuant to the Amended and
Restated Pooling Servicing Agreement. The Receivables transferred to WFNMT by
the Transferor will be acquired by the Transferor from the Bank pursuant to a
Receivables Purchase Agreement, to be dated as of August 1, 2001 (as amended,
the "RECEIVABLES PURCHASE AGREEMENT"), between WFN LLC and the Bank. The
Collateral Certificate will be transferred by the Transferor to the Issuer
pursuant to the Transfer and Servicing Agreement, to be dated as of August 1,
2001 (the "TSA"), among the Transferor, the Servicer, and the Issuer.
The Bank will agree to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the TSA, the Master
Indenture and each indenture supplement for each series of notes issued by the
Issuer, pursuant to an Administration Agreement, to be dated as of August 1,
2001 (the "ADMINISTRATION AGREEMENT"), between the Bank, as administrator (in
such capacity, the "ADMINISTRATOR"), and the Issuer. The TSA, the PSA, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and the
Administration Agreement are referred to herein, collectively, as the "PROGRAM
DOCUMENTS."
This Underwriting Agreement is referred to herein as this "AGREEMENT."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Transaction Documents.
The Class C Notes will be sold pursuant to a Class C Note Purchase
Agreement, to be dated as of August 21, 2001 (the "CLASS C NOTE PURCHASE
AGREEMENT" and, together with the Program Documents, the "TRANSACTION
DOCUMENTS"), among the Issuer, the Bank, WFN LLC and the initial purchaser of
the Class C Notes named therein.
The Transferor and the Bank hereby agree, severally and not jointly,
with the underwriters for the Class A Notes listed on SCHEDULE A hereto (the
"CLASS A UNDERWRITERS") and the underwriters for the Class B Notes listed on
SCHEDULE A hereto (the "CLASS B UNDERWRITERS" and, together with the Class A
Underwriters, the "UNDERWRITERS") as follows:
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2. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR AND THE BANK.
Each of the Transferor (the representations and warranties as to the Transferor
being given by the Transferor) and the Bank (the representations and warranties
as to the Bank being given by the Bank) represents and warrants to, and agrees
with, the Underwriters that:
(a) The Transferor is duly organized, validly existing
and in good standing as a limited liability company under the laws of
the State of Delaware, and has all requisite power, authority and legal
right to own its property, transact the business in which it is now
engaged and conduct its business as described in the Registration
Statement and Prospectus, and to execute, deliver and perform its
obligations under this Agreement, the TSA, the PSA, the Receivables
Purchase Agreement and the Trust Agreement and to authorize the
issuance of the Notes and the Collateral Certificate.
(b) The Bank is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, and has all requisite power, authority and legal right
to own its property and conduct its credit card business as such
properties are presently owned and such business is presently
conducted, and conduct its business as described in the Registration
Statement (as hereinafter defined) and Prospectus (as hereinafter
defined), and to own the Accounts and to execute, deliver and perform
its obligations under the Receivables Purchase Agreement, the TSA, the
PSA and the Administration Agreement.
(c) The execution, delivery and performance of each of
the Transaction Documents to which it is a party, and the incurrence of
the obligations herein and therein set forth and the consummation of
the transactions contemplated hereby and thereby, and with respect to
the Transferor, the issuance of the Notes and the Collateral
Certificate, have been duly and validly authorized by the Transferor
and the Bank, as applicable, by all necessary action on the part of the
Transferor and the Bank, as applicable.
(d) This Agreement has been duly authorized, executed and
delivered by the Transferor and the Bank.
(e) Each of the Program Documents has been, or on or
before the Closing Date will be, executed and delivered by the
Transferor and the Bank, as applicable, and when executed and delivered
by the other parties thereto, will constitute a valid and binding
agreement of the Transferor and the Bank, as applicable, enforceable
against the Transferor and the Bank, as applicable, in accordance with
its terms, except, in each case, to the extent that (i) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, receivership or other similar laws now or
hereafter in effect relating to creditors' or other obligees' rights
generally or the rights of creditors or other obligees of institutions
insured by the FDIC, (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) certain remedial
provisions of the Indenture may be unenforceable in whole or in part
under the UCC, but the inclusion of such provisions does not render the
other provisions of the Indenture
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invalid and notwithstanding that such provisions may be unenforceable
in whole or in part, the Indenture Trustee, on behalf of the
Noteholders, will be able to enforce the remedies of a secured party
under the UCC.
(f) The Notes have been duly authorized and will be
issued pursuant to the terms of the Indenture and, when executed by the
Owner Trustee on behalf of the Issuer and authenticated by the
Indenture Trustee in accordance with the Indenture and delivered
pursuant to the Indenture and this Agreement, will be duly and validly
executed, issued and outstanding and will constitute legal, valid and
binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, subject to (A) the effect of bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation and
other similar laws affecting creditors' rights generally, (B) the
effect of general principles of equity including (without limitation)
concepts of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding in equity
or at law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability where
such indemnification or contribution is contrary to public policy. The
Notes will be in the form contemplated by the Indenture, and the
Offered Notes and the Indenture will conform to the descriptions
thereof contained in the Prospectus and Registration Statement, as
amended or supplemented.
(g) The Collateral Certificate will be issued pursuant to
the terms of the PSA and, when executed and authenticated by the WFNMT
Trustee in accordance with the PSA, will be validly issued and
outstanding. The Collateral Certificate will be in the form
contemplated by the PSA, and the Collateral Certificate and the PSA
will conform to the descriptions thereof contained in the Prospectus
and the Registration Statement, as amended or supplemented.
(h) Neither the Transferor nor the Bank is in violation
of any Requirement of Law or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other instrument to which it is a party or by
which it is bound or to which any of its property is subject, which
violation or defaults separately or in the aggregate would have a
material adverse effect on the Transferor or the Bank.
(i) None of the issuance and sale of the Notes, the
issuance of the Collateral Certificate or the execution and delivery by
the Transferor or the Bank of this Agreement or any Transaction
Document to which it is a party, nor the incurrence by the Transferor
or the Bank of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or thereunder,
nor the fulfillment of the terms hereof or thereof does or will (i)
violate any Requirement of Law presently in effect, applicable to it or
its properties or by which it or its properties are or may be bound or
affected, (ii) conflict with, or result in a breach of, or constitute a
default under, any material indenture, contract, agreement, mortgage,
deed of trust or instrument to which it is a party or by which it or
its
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properties are bound or (iii) result in the creation or imposition of
any Lien upon any of its property or assets, except for those
encumbrances created under the Transaction Documents.
(j) All approvals, authorizations, consents, orders and
other actions of any Person or of any court or other governmental body
or official required in connection with the execution and delivery by
the Transferor or the Bank of this Agreement or the Transaction
Documents to which it is a party or to the consummation of the
transactions contemplated hereunder and thereunder, or to the
fulfillment of the terms hereof and thereof have been or will have been
obtained on or before the Closing Date.
(k) The Bank has authorized the conveyance of the
Receivables to the Transferor and WFNMT, as applicable; the Transferor
has authorized the conveyance of the Receivables to WFNMT; the
Transferor has authorized WFNMT to issue the Collateral Certificate;
and the Transferor has authorized the Issuer to issue and sell the
Notes.
(l) All actions required to be taken by the Transferor or
the Bank as a condition to the offer and sale of the Notes as described
herein or the consummation of any of the transactions described in the
Prospectus and the Registration Statement have been or, prior to the
Closing Date, will be taken.
(m) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies as to form
with the TIA and the rules and regulations of the Securities and
Exchange Commission (the "COMMISSION") thereunder.
(n) The representations and warranties made by the
Transferor in the TSA, the PSA, the Trust Agreement and the Receivables
Purchase Agreement or made in any Officer's Certificate of the
Transferor delivered pursuant to any Transaction Document to which it
is a party will be true and correct in all material respects at the
time made and on and as of the Closing Date as if set forth herein,
except that to the extent that any such representation or warranty
expressly relates to an earlier date, such representation or warranty
is true and correct at and as of such earlier date.
(o) The representations and warranties made by the Bank
in the Receivables Purchase Agreement, and in its capacity as Servicer
and Administrator, in the TSA, the PSA and the Administration
Agreement, respectively, or made in any Officer's Certificate of the
Bank delivered pursuant to any Transaction Document to which it is a
party will be true and correct in all material respects at the time
made and on and as of the Closing Date as if set forth herein, except
that to the extent that any such representation or warranty expressly
relates to an earlier date, such representation or warranty is true and
correct at and as of such earlier date.
(p) The Transferor agrees it has not granted, assigned,
pledged or transferred and shall not grant, assign, pledge or transfer
to any Person a security interest in, or any other right, title or
interest in, the Receivables or the Collateral Certificate, except as
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provided in the PSA and the TSA, and agrees to take all action required
by the PSA and the TSA in order to maintain the security interest in
the Receivables and the Collateral Certificate granted pursuant to the
PSA and the TSA, as applicable.
(q) The Bank agrees it has not granted, assigned, pledged
or transferred and shall not grant, assign, pledge or transfer to any
Person a security interest in, or any other right, title or interest
in, the Receivables, except as provided in the PSA or the Receivables
Purchase Agreement, as applicable, and agrees to take all action
required by the PSA or the Receivables Purchase Agreement, as
applicable, in order to maintain the security interests in the
Receivables granted pursuant to the Receivables Purchase Agreement and
the PSA, as applicable.
(r) A registration statement on Form S-3 (Nos. 333-60418
and 333-60418-01), including a form of prospectus and such amendments
thereto as may have been filed prior to the date hereof, relating to
the Offered Notes and the offering thereof in accordance with Rule 415
under the Securities Act of 1933, as amended (the "ACT"), has been
filed with, and has been declared effective by, the Commission. If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective
by the Commission. For purposes of this Agreement, "EFFECTIVE TIME"
means the date and time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission, and "EFFECTIVE DATE" means the date of the
Effective Time. Such registration statement, as amended at the
Effective Time, is hereinafter referred to as the "REGISTRATION
STATEMENT." The Transferor proposes to file with the Commission
pursuant to Rule 424(b) ("RULE 424(b)") under the Act a supplement (the
"PROSPECTUS SUPPLEMENT") to the prospectus included in the Registration
Statement (such prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424(b), is hereinafter referred to as the
"BASE PROSPECTUS") relating to the Offered Notes and the method of
distribution thereof. The Base Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement thereto,
are hereinafter referred to as the "PROSPECTUS".
(s) On the Effective Date, the Registration Statement did
or will conform in all material respects to the applicable requirements
of the Act and the rules and regulations of the Commission thereunder
(the "RULES AND REGULATIONS") and the TIA and the rules and regulations
thereunder and did not or will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of this Agreement, the Registration Statement and the
Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) the Registration Statement and the Prospectus
will conform, in all material respects with the requirements of the Act
and the Rules and Regulations and the TIA and the rules and regulations
thereunder and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not
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misleading, except that the foregoing does not apply to statements in
or omissions from either of such documents based upon written
information furnished to the Transferor or the Bank by the Underwriters
specifically for use therein. Each of the Transferor and the Bank
hereby acknowledges that (i) the only information provided by the Class
A Underwriters for inclusion in the Registration Statement and the
Prospectus is set forth on the cover page of the Prospectus Supplement
in the table under the heading "Class A Notes" and on the line across
from "Price to public," in the table listing the Class A Underwriters
and the Principal Amount of Class A Notes under the heading
"Underwriting" in the Prospectus Supplement, in the table following the
third paragraph under the heading "Underwriting" in the Prospectus
Supplement in the column labeled "Class A Notes", and in the final
paragraph under the heading "Underwriting" in the Prospectus Supplement
(the "CLASS A UNDERWRITERS' INFORMATION") and (ii) the only information
provided by the Class B Underwriters for inclusion in the Registration
Statement and the Prospectus is set forth on the cover page of the
Prospectus Supplement in the table under the heading "Class B Notes"
and on the line across from "Price to public," in the table listing the
Class B Underwriters and the Principal Amount of Class B Notes and
under the heading "Underwriting" in the Prospectus Supplement, in the
table following the third paragraph under the heading "Underwriting" in
the Prospectus Supplement in the column labeled "Class B Notes", and in
the final paragraph under the heading "Underwriting" in the Prospectus
Supplement (the "CLASS B UNDERWRITERS' INFORMATION").
(t) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, there has not been any material adverse
change in (i) the condition, financial or otherwise, or in the
earnings, business or operations, of the Bank or the Transferor and
(ii) the financial or statisitcial information contained in the
Prospectus under the caption "The Trust Portfolio."
3. PURCHASE, SALE, PAYMENT AND DELIVERY OF THE OFFERED NOTES.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class A
Underwriters, and the Class A Underwriters agree to purchase from the
Transferor, at a purchase price of 99.725% of the principal amount
thereof, $702,000,000 aggregate principal amount of the Class A Notes,
each Class A Underwriter to purchase the amounts shown on SCHEDULE A
hereto.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class B
Underwriters, and the Class B Underwriters agree to purchase from the
Transferor, at a purchase price of 99.650% of the principal amount
thereof, $76,500,000 aggregate principal amount of the Class B Notes,
each Class B Underwriter to purchase the amounts shown on SCHEDULE A
hereto.
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(c) The Transferor will cause the Issuer to deliver the
Offered Notes to the Underwriters against payment of the purchase price
in immediately available funds, drawn to the order of the Transferor,
at the office of Mayer, Brown & Platt, in Chicago, Illinois at 10:00
a.m., Chicago time, on August 21, 2001, or at such other time not later
than seven full business days thereafter as the Representative and the
Transferor determine, such time being herein referred to as the
"CLOSING DATE." Each of the Class A Notes and the Class B Notes so to
be delivered shall be represented by one or more definitive notes
registered in the name of Cede & Co., as nominee for The Depository
Trust Company. The Notes will be available for inspection by the
Underwriters at the office at which the Notes are to be delivered no
later than five hours before the close of business in New York City on
the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that after the
Effective Date, the Underwriters propose to offer the Offered Notes for sale to
the public (which may include selected dealers) as set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE TRANSFEROR. The Transferor agrees
with the Underwriters that:
(a) Immediately following the execution of this
Agreement, the Transferor will prepare a Prospectus Supplement setting
forth the amount of Offered Notes covered thereby and the terms thereof
not otherwise specified in the Base Prospectus, the price at which such
Offered Notes are to be purchased by the Underwriters, the initial
public offering price, the selling concessions and allowances, and such
other information as the Transferor deems appropriate. The Transferor
will transmit the Prospectus, including such Prospectus Supplement, to
the Commission pursuant to Rule 424(b) by a means reasonably calculated
to result in filing with the Commission pursuant to Rule 424(b). The
Transferor will not file any amendment of the Registration Statement
with respect to the Offered Notes or supplement to the Prospectus
unless a copy has been furnished to the Representative for its review a
reasonable time prior to the proposed filing thereof or to which the
Representative shall reasonably object in writing. The Transferor will
advise the Representative promptly of (i) the effectiveness of any
amendment or supplementation of the Registration Statement or
Prospectus, (ii) any request by the Commission for any amendment or
supplementation of the Registration Statement or the Prospectus or for
any additional information, (iii) the receipt by the Transferor of any
notification with respect to the suspension of qualification of the
Offered Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes and (iv) the
institution by the Commission of any stop order proceeding in respect
of the Registration Statement, and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(b) If at any time when a prospectus relating to the
Offered Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the
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circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Transferor promptly will notify the Representative of such event
and prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Underwriters' consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(c) As soon as practicable, the Transferor will cause the
Trust to make generally available to the Noteholders an earnings
statement or statements of the Trust covering a period of at least 12
months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(d) The Transferor will furnish to the Representative
copies of the Registration Statement (one of which will be signed
and will include all exhibits), the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative reasonably requests.
(e) The Transferor will endeavor to qualify the Offered
Notes for sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and the
determination of the eligibility for investment of the Offered Notes
under the laws of such jurisdictions as the Representative may
designate and will continue such qualifications in effect so long as
required for the distribution of the Offered Notes; PROVIDED, HOWEVER,
that the Transferor shall not be obligated to qualify to do business in
any jurisdiction where such qualification would subject the Transferor
to general or unlimited service of process in any jurisdiction where it
is not now so subject.
(f) So long as any Offered Note is outstanding, the
Transferor will furnish, or cause the Servicer to furnish, to the
Representative copies of each certificate and the annual statements of
compliance delivered to (i) the WFNMT Trustee and each Rating Agency
pursuant to Section 3.5 of the PSA and independent certified public
accountant's servicing reports furnished to the WFNMT Trustee, the
Servicer and each Rating Agency pursuant to Sections 3.6(a) and (b) and
(ii) the Owner Trustee, the Indenture Trustee and each Rating Agency
pursuant to Section 3.5 of the TSA and independent certified public
accountant's servicing reports furnished to the Indenture Trustee, the
Servicer and the Rating Agencies pursuant to Sections 3.6(a) and (b) of
the TSA, by first class mail as soon as practicable after such
certificates, statements and reports are furnished to the WFNMT
Trustee, the Owner Trustee, the Indenture Trustee or the Rating
Agencies, as the case may be.
(g) So long as any Offered Note is outstanding, the
Transferor will furnish, or cause the Servicer to furnish, to the
Representative, by first-class mail as soon as practicable (i) all
documents concerning the Receivables, the Collateral Certificate or the
Notes distributed by the Transferor or the Servicer (under each of the
PSA and TSA) to the WFNMT Trustee, the Owner Trustee, the Indenture
Trustee or the Noteholders, or filed
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with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), (ii) any order of the Commission under
the Act or the Exchange Act applicable to the Issuer, to WFNMT, or to
the Transferor, or pursuant to a "no-action" letter obtained from the
staff of the Commission by the Transferor and affecting the Issuer,
WFNMT, or the Transferor and (iii) from time to time, such other
information concerning the Issuer or WFNMT as the Representative may
reasonably request.
(h) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated for any
reason, except a default by the Underwriters hereunder, the Transferor
will pay all expenses incident to the performance of its obligations
under this Agreement (except as otherwise agreed in writing between the
Transferor and the Representative) and will reimburse the Underwriters
for any expenses incurred by them in connection with qualification of
the Offered Notes for sale and determination of the eligibility of the
Offered Notes for investment under the laws of such jurisdictions as
the Representative designates and for any fees charged by investment
rating agencies for the rating of the Offered Notes and for any filing
fee of the National Association of Securities Dealers, Inc. relating to
the Offered Notes. The Transferor and the Underwriters will each bear
their own respective fees and disbursements of counsel (which in the
case of the Transferor will include all legal fees relating to Blue Sky
matters).
(i) To the extent, if any, that any of the ratings
provided with respect to the Notes by any Rating Agency are conditional
upon the furnishing of documents or the taking of any other actions by
the Transferor, the Transferor shall furnish such documents and take
any such other actions as are reasonably necessary to satisfy such
condition.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligation of the Underwriters to purchase and pay for the Offered Notes will be
subject to the accuracy of the representations and warranties by the Transferor
and the Bank herein, to the accuracy of the statements of officers of Transferor
and the Bank made pursuant to the provisions hereof, to the performance by the
Transferor and the Bank of their respective obligations hereunder and to the
following additional conditions precedent:
(a) The Representative shall have received a letter,
dated the date of the Prospectus and addressed to the Underwriters,
from Deloitte & Touche, confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder, substantially in the form heretofore
agreed to and otherwise in form and in substance satisfactory to the
Representative and its counsel.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement; and, prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Transferor or the
Representative, shall be contemplated by the Commission.
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(c) Subsequent to the execution and delivery of this
Agreement none of the following shall have occurred: (i) any change, or
any development involving a prospective change, in or affecting
particularly WFNMT, the Issuer, the business or properties of the
Transferor or the Bank which, in the judgment of the Underwriters make
it impractical or inadvisable to proceed with the completion and sale
of and payment for the Offered Notes, (ii) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended, limited or
minimum prices shall have been established on either of such exchanges
or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (iii) a
banking moratorium shall have been declared by Federal or state
authorities; and (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation of hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or any other substantial
national or international calamity or emergency which, in the judgment
of the Underwriters, the effect of such hostilities, escalation,
declaration or other calamity or emergency makes it impractical or
inadvisable to proceed with the completion and sale of and payment for
the Offered Notes.
(d) The Representative shall have received an opinion,
dated the Closing Date, of Carolyn Melvin, General Counsel for World
Financial Network National Bank, as counsel for the Transferor and the
Bank, satisfactory in form and substance to the Representative and its
counsel to the effect that:
(i) The Transferor is a limited liability
company in good standing, duly organized and validly existing
under the laws of the State of Delaware; the Bank is a
national banking association in good standing, duly organized
and validly existing under the laws of the United States of
America; and each of the Transferor and the Bank (each
collectively referred to in this subsection 6(d) as a "WFN
ENTITY") is duly qualified to do business and is in good
standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material
properties or conducts material business, and has full power
and authority to own its properties, to conduct its business
as described in the Registration Statement and the Prospectus,
to enter into and perform its obligations under the
Transaction Documents to which it is a party, and to
consummate the transactions contemplated thereby.
(ii) Each of the Transaction Documents and this
Agreement has been duly authorized, executed and delivered by
each WFN Entity that is a party thereto.
(iii) Neither the execution and delivery of the
Transaction Documents and this Agreement by either WFN Entity
that is party thereto nor the consummation of any of the
transactions contemplated therein nor the fulfillment of the
terms thereof, conflicts with or violates, results in a
material breach of or constitutes a default under (A) any
Requirements of Law applicable to such WFN Entity, (B) any
term or provision of any order known to me to be currently
applicable to such WFN Entity of any court, regulatory body,
administrative agency
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or governmental body having jurisdiction over such WFN Entity
or (C) any term or provision of any indenture or other
agreement or instrument known to me to which such WFN Entity
is a party or by which either of them or any of their
properties are bound.
(iv) Except as otherwise disclosed in the
Prospectus (and any supplement thereto) or the Registration
Statement, there is no pending or, to the best of my
knowledge, threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator with respect to WFNMT, the Issuer, the Collateral
Certificate, the Notes or any of the Transaction Documents or
any of the transactions contemplated therein with respect to a
WFN Entity which, in the case of any such action, suit or
proceeding if adversely determined, would have a material
adverse effect on the Notes, the Collateral Certificate, WFNMT
or the Issuer or upon the ability of any WFN Entity to perform
its obligations under the Transaction Documents; and the
statements included in the Prospectus describing statutes,
legal proceedings, contracts and other documents relating to
the WFN Entities, the Accounts, the Receivables, the business
of the Bank, the Transferor, WFNMT and the Issuer fairly
summarize the matters therein described.
(e) The Representative shall have received an opinion,
dated the Closing Date, of Mayer, Brown & Platt, special counsel to the
Transferor and the Bank, satisfactory in form and substance to the
Representative and its counsel to the effect that:
(i) Each of the Transaction Documents to which
the Transferor or the Bank is a party constitutes the legal,
valid and binding agreement of the Transferor and the Bank, as
the case may be, under the laws of New York, enforceable
against each such Person in accordance with its terms, subject
to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar
laws affecting creditors' rights generally and the rights of
creditors of national banking associations (including, without
limitation, the determination pursuant to 12 U.S.C.
Section 1821(e) of any liability for the disaffirmance or
repudiation of any contract), (B) the effect of general
principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding
in equity or at law), and also to the possible unavailability
of specific performance or injunctive relief, and (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring
contribution from a party for liability where such
indemnification or contribution is contrary to public policy.
(ii) This Agreement constitutes the legal, valid
and binding obligation of the Transferor and the Bank under
the laws of the State of New York, enforceable against the
Transferor and the Bank in accordance with its terms, subject
to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar
laws affecting creditors' rights generally and the rights of
creditors of national banking associations (including, without
limitation, the
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determination pursuant to 12 U.S.C. Section 1821(e) of any
liability for the disaffirmance or repudiation of any
contract), (B) the effect of general principles of equity
including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of
whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability
under certain circumstances of provisions indemnifying a party
against liability or requiring contribution from a party for
liability where such indemnification or contribution is
contrary to public policy.
(iii) The Notes are in due and proper form and
when executed, authenticated and delivered as specified in the
Indenture, and when delivered against payment of the
consideration specified in this Agreement and the Class C Note
Purchase Agreement they will be validly issued and
outstanding, will constitute legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in
accordance with their terms and will be entitled to the
benefits of the Indenture, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of general
principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding
in equity or at law), and also to the possible unavailability
of specific performance or injunctive relief, and (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring
contribution from a party for liability where such
indemnification or contribution is contrary to public policy.
(iv) The Collateral Certificate is in due and
proper form and when executed, authenticated and delivered as
specified in the PSA, and when delivered against payment of
the consideration specified therein it will be validly issued
and outstanding and will be entitled to the benefits of the
PSA.
(v) The Registration Statement has become
effective under the Act, and the Prospectus has been filed
with the Commission pursuant to Rule 424(b) thereunder in the
manner and within the time period required by Rule 424(b). To
the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened or contemplated by the Commission,
and the Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act.
(vi) No approval, authorization, consent, order,
registration, filing, qualification, license or permit of or
with any court or governmental agency or body is required for
the consummation by the Bank, the Transferor, WFNMT or the
Issuer of the transactions contemplated in the Transaction
Documents, except such as have been obtained under the Act and
such as may be required under the blue sky
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laws of any jurisdiction inside the United States in
connection with the purchase and distribution of the Offered
Notes by the Underwriters.
(vii) The statements in the Base Prospectus under
the headings "Risk Factors--If a conservator or receiver were
appointed for World Financial Network National Bank, delays or
reductions in payment of your notes could occur," "Material
Legal Aspects of the Receivables," "ERISA Considerations" and
"Federal Income Tax Consequences" and the statements in the
Prospectus Supplement under the headings "Structural
Summary--Tax Status" and "--ERISA Considerations" to the
extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by us and
are correct in all material respects.
(viii) This Agreement, the Program Documents, the
Collateral Certificate and the Notes conform in all material
respects to the descriptions thereof contained in the
Prospectus.
(ix) The Indenture has been duly qualified under
the TIA and complies as to form with the TIA and the rules and
regulations of the Commission thereunder. The Issuer is not
now, and immediately following the issuance of the Notes
pursuant to the Indenture will not be, required to be
registered under the Investment Company Act of 1940, as
amended.
(x) The PSA need not be qualified under the TIA.
WFNMT is not now, and immediately following the issuance of
the Collateral Certificate pursuant to the PSA will not be,
required to be registered under the Investment Company Act of
1940, as amended.
(xi) Subject to the discussion in the Base
Prospectus under the heading "Federal Income Tax
Consequences," (A) the Notes will properly be characterized as
indebtedness and neither WFNMT nor the Issuer will be treated
as an association (or publicly traded partnership) taxable as
a corporation, for U.S. federal income tax purposes and (B)
the issuance of the Notes will not cause or constitute and
event in which gain or loss would be recognized by any holder
of Notes or Investor Certificates of any outstanding series or
class, for U.S. federal income tax purposes.
(xii) For Texas corporate franchise tax purposes,
neither WFNMT nor the Issuer will be treated as an entity
subject to tax and Noteholders not otherwise subject to Texas
corporate franchise tax will not become subject to the Texas
corporate franchise tax by reason of their ownership of the
Notes, together with such other opinions related thereto as
the Representative reasonably requests.
(xiii) The Indenture constitutes the legal, valid
and binding obligation of the Issuer under the laws of the
State of New York, subject to (A) the effect of bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally, (B) the effect of general
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principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding
in equity or at law), and also to the possible unavailability
of specific performance or injunctive relief, and (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring
contribution from a party for liability where such
indemnification or contribution is contrary to public policy.
(xiv) Each of the Registration Statement, as of
its effective date, and the Prospectus, as of its date,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations under
the Act, except that in each case such counsel need not
express any opinion as to the financial and statistical data
included therein or excluded therefrom or the exhibits to the
Registration Statement and, except as and to the extent set
forth in paragraphs (vii) and (viii), such counsel does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus.
(xv) If the FDIC were appointed as conservator or
receiver for the Bank (a) the FDIC regulation entitled
"Treatment by the Federal Deposit Insurance Corporation as
Conservator or Receiver of Financial Assets Transferred by an
Insured Depository Institution in Connection with a
Securitization or Participation," 12 CFR Section 360.6 (the
"RULE")would be applicable to the transfers of Receivables by
the Bank to the Transferor under the Receivables Purchase
Agreement, (b) under the Rule, the FDIC could not, by exercise
of its authority to disaffirm or repudiate contracts under 12
U.S.C. Section 1821(e), reclaim or recover the Receivables or
the proceeds thereof from Transferor or the Trust or
recharacterize the Receivables or the proceeds thereof as
property of the Bank or of the conservatorship or receivership
for the Bank, (c) neither the FDIC (acting for itself as a
creditor or as representative of the Bank or its shareholders
or creditors) nor any creditor of the Bank would have the
right, under any bankruptcy or insolvency law applicable in
the conservatorship or receivership of the Bank, to avoid the
transfers of Receivables by the Bank to the Transferor under
the Receivables Purchase Agreement, to recover the
Receivables, or to require the Receivables to be turned over
to the FDIC or such creditor (including by way of any order
consolidating the assets and liabilities of the Transferor
with those of the Bank) and (d) there is no other power
exercisable by the FDIC as conservator or receiver for the
Bank that would permit the FDIC as such conservator or
receiver to reclaim or recover the Receivables from the
Transferor or WFNMT or to recharacterize the Receivables as
property of the Bank or of the conservatorship or receivership
for the Bank; provided, however, that such counsel need not
offer any opinion as to whether, in receivership, the FDIC or
any creditor of the Bank may reclaim or recover the
Receivables from the Transferor or WFNMT, or recharacterize
the Receivables as property of the Bank or of the
conservatorship or receivership for the Bank, if the
Noteholders receive payment of the principal amount of their
Notes and the interest earned thereon (at the interest
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rates specified in respect of such Notes) through the date the
Noteholders are so paid.
(xvi) If the FDIC were to be appointed as a
conservator or receiver for the Bank a court having
jurisdiction over the conservatorship or receivership would
(a) hold the transfers of Receivables by the Bank to the
Transferor under the Receivables Purchase Agreement to be a
true conveyance and not a secured loan or a grant of a
security interest to secure a loan and (b) determine that the
rights, titles, powers, and privileges of the FDIC as
conservator or receiver of the Bank would not extend to the
Receivables.
(xvii) Certain matters relating to the transfer of
the Receivables from the Bank to the Transferor under the
Receivables Purchase Agreement and from the Bank to WFNMT
under the PSA, as applicable, together with such other
opinions related thereto as the Representative reasonably
requests.
(xviii) Certain matters relating to the transfer of
the Receivables from the Transferor to WFNMT under the PSA.
(xix) Certain matters relating to the transfer of
the Collateral Certificate from the Transferor to the Issuer
under the TSA.
(xx) The perfection of the security interest in
favor of the Issuer in the Collateral Certificate and the
proceeds thereof.
(xxi) When the Indenture Trustee has taken
possession of the Collateral Certificate issued by WFNMT, the
Program Documents have been executed and delivered and WFNMT
has received payment for the Collateral Certificate, the
Indenture Trustee will become the registered holder of the
Collateral Certificate, subject to no Liens of record,
together with such other opinions related thereto as the
Representative reasonably requests.
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor and the Bank and
their accountants, the Underwriters and counsel to the Underwriters
concerning the Registration Statement and the Prospectus and have
considered the matters to be stated therein and the matters stated
therein, although they are not independently verifying the accuracy,
completeness or fairness of such statements (except as stated in
paragraph (vii) above) and based upon and subject to the foregoing,
nothing has come to such counsel's attention to cause such counsel to
believe that the Registration Statement (excluding any exhibits filed
therewith), at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date hereof,
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not
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misleading (it being understood that such counsel has not been
requested to, and does not, make any comment in such opinion with
respect to the financial statements, supporting schedules and other
financial or statistical information contained in the Registration
Statement or the Prospectus).
In rendering such opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York and the United States, to the extent deemed proper
and stated in such opinion, upon the opinion of other counsel of good
standing believed by such counsel to be reliable and acceptable to the
Representative and its counsel, and (B) as to matters of fact, to the
extent deemed proper and as stated therein, on certificates of
responsible officers of the Issuer, the Bank, the Transferor and public
officials.
(f) The Representative shall have received from Orrick,
Herrington & Sutcliffe LLP, special counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to such
matters relating to this transaction as the Representative may require,
and the Transferor shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such
matters.
(g) The Representative shall have received an opinion,
dated the Closing Date, of Arter & Hadden, special Ohio counsel for the
Transferor and the Bank, satisfactory in form and substance to the
Representative and its counsel with respect to (i) certain matters
relating to the transfer of the Receivables from the Bank to the
Transferor under the Receivables Purchase Agreement and from the Bank
to WFNMT under the PSA, as applicable, (ii) the perfection of the
security interest in favor of the Transferor and WFNMT, as applicable,
in the Receivables and the proceeds thereof and (iii) for Ohio
corporate franchise tax purposes or the Ohio dealers intangibles tax,
neither WFNMT nor the Issuer will be treated as an entity subject to
tax, and (iv) Noteholders not otherwise subject to Ohio corporate
franchise tax or Ohio personal income tax will not become subject to
the Ohio corporate franchise tax or Ohio personal income tax by reason
of their ownership of the Notes.
(h) The Representative shall have received an opinion,
dated the Closing Date, of Richards, Layton & Finger, P.A., special
Delaware counsel for the Transferor and the Bank, satisfactory in form
and substance to the Representative and its counsel with respect to (i)
the perfection of the security interest in favor of WFNMT in the
Receivables and the proceeds thereof transferred to WFNMT from the
Transferor under the PSA, (ii) the perfection of the security interest
in favor of the Issuer in the Collateral Certificate and the proceeds
thereof and (iii) the perfection of the security interest in favor of
the Indenture Trustee in the Collateral Certificate and the proceeds
thereof.
(i) The Representative shall have received a certificate
from each of the Transferor and the Bank, dated the Closing Date, of a
Treasurer, Vice President or more senior officer of the Transferor or
the Bank, as the case may be, in which such officer, to the best of
his/her knowledge after reasonable investigation, shall state that (u)
the
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representations and warranties of the Transferor and the Bank, as the
case may be, in this Agreement are true and correct on and as of the
Closing Date, (v) the Transferor or the Bank, as the case may be, has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date,
(w) the representations and warranties of the Transferor or the Bank,
as the case may be, contained in this Agreement and the Transaction
Documents to which it is a party are true and correct as of the dates
specified herein and therein, (x) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened by
the Commission, (y) nothing has come to such officers' attention that
would lead such officers to believe that the Registration Statement or
the Prospectus, and any amendment or supplement thereto, as of its date
and as of the Closing Date, contained an untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (z) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Bank's credit card business
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(j) The Representative shall have received an opinion of
Richards, Layton & Finger, P.A., counsel to the Owner Trustee, dated
the Closing Date, satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) Chase is duly incorporated and validly
existing as a national banking association in good standing
under the laws of the United States of America and has the
power and authority to execute, deliver and perform the Trust
Agreement and to consummate the transactions contemplated
thereby, and, on behalf of the Issuer, to execute and deliver
the Indenture and the TSA (the Indenture and the TSA
collectively referred to in this subsection 6(j) as the "TRUST
DOCUMENTS") and to consummate the transactions contemplated
thereby.
(ii) The Trust Agreement has been duly
authorized, executed and delivered by Chase and constitutes a
legal, valid and binding obligation of Chase, enforceable
against Chase in accordance with its terms.
(iii) The Trust Documents have been duly
authorized, executed and delivered by the Owner Trustee on
behalf of the Issuer.
(iv) Neither the execution, delivery or
performance by Chase of the Trust Agreement or, as Owner
Trustee on behalf of the Issuer, of the Trust Documents, nor
the consummation of any of the transactions by Chase or the
Owner Trustee, as the case may be, contemplated thereby,
requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of
the State of Delaware or the United States of America
governing the banking or trust powers of Chase.
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(v) Neither the execution, delivery and
performance by Chase of the Trust Agreement or, as Owner
Trustee on behalf of the Issuer, of the Trust Documents, nor
the consummation of any of the transactions by Chase or the
Owner Trustee, as the case may be, contemplated thereby, is in
violation of the articles of association or bylaws of Chase or
of any law, governmental rule or regulation of the State of
Delaware or of the United States of America governing the
banking or trust powers of Chase or, to such counsel's
knowledge, without independent investigation, any indenture,
mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or,
to such counsel's knowledge, without independent
investigation, or any judgment or order applicable to Chase.
(vi) No consent, approval or other authorization
of, or registration, declaration or filing with, any court or
governmental agency or commission of the State of Delaware is
required by or with respect to Chase, in its individual
capacity or as Owner Trustee, as the case may be, for the
valid execution and delivery of the Trust Agreement or, as
Owner Trustee on behalf of the Issuer, of the Trust Documents,
or for the validity or enforceability thereof (other than the
filing of the certificate of trust, which certificate of trust
has been duly filed).
(vii) To such counsel's knowledge, without
independent investigation, there are no pending or threatened
actions, suits or proceedings affecting the Owner Trustee
before any court or other governmental authority which, if
adversely determined, would materially and adversely affect
the ability of the Owner Trustee to carry out the transactions
contemplated by the Trust Agreement.
(k) The Representative shall have received an opinion of
Richards, Layton & Finger, special Delaware counsel to the Issuer,
dated the Closing Date, satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) The Issuer has been duly formed and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, 12 DEL. C. 3801 ET SEQ.
(referred to in this subsection 6(k) 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 TSA and the Indenture (the
TSA and the Indenture collectively referred to in this
subsection 6(k) as the "TRUST DOCUMENTS"), the issuance of the
Notes, and the granting of the Collateral to the Indenture
Trustee as security for the Notes has been duly authorized by
all necessary trust action on the part of the Issuer.
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(iv) Under the Trust Act and the Trust Agreement,
the Issuer has (i) the trust power and authority to execute,
deliver and perform its obligations under the Trust Documents
and the Notes, and (ii) duly authorized, executed and
delivered such agreements and obligations.
(v) The Transferor Interest is entitled to the
benefits of the Trust Agreement.
(vi) Neither the execution, delivery and
performance by the Issuer of the Trust Documents or the Notes,
nor the consummation by the Issuer of any of the transactions
by the Issuer contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware,
other than the filing of the Certificate of Trust with the
Delaware Secretary of State (which Certificate of Trust has
been duly filed) and the filing of any UCC financing
statements with the Delaware Secretary of State pursuant to
the Indenture.
(vii) Neither the execution, delivery and
performance by the Issuer of the Trust Documents, nor the
consummation by the Issuer of the transactions contemplated
thereby, is in violation of the Trust Agreement or of any law,
rule, or regulation of the State of Delaware applicable to the
Issuer.
(viii) Under Section 3805(b) of the Act, no
creditor of the holder of the beneficial interest in the Trust
shall have any right to obtain possession of, or otherwise
exercise legal or equitable remedies with respect to, the
property of the Issuer except in accordance with the terms of
the Trust Agreement.
(ix) Under Sections 3808(a) and (b) of the Act,
the Issuer may not be terminated or revoked by the holder of
the beneficial interest in the Trust, and the dissolution,
termination or bankruptcy of the holder of the beneficial
interest in the Trust shall not result in the termination or
dissolution of the Issuer, except to the extent otherwise
provided in the Trust Agreement.
(x) The Owner Trustee is not required to hold
legal title to the Trust Estate in order for the Issuer to
qualify as a business trust under the Act.
(xi) With respect to the Issuer and the
Receivables: (a) there is no document, stamp, excise or other
similar tax imposed by the State of Delaware upon the
perfection of a security interest in the Collateral
Certificate or the Receivables, in the transfer of Collateral
Certificate or the Receivables to or from the Issuer or the
WFNMT or upon the issuance of Collateral Certificate or the
Notes; (b) there is no personal property tax imposed by the
State of Delaware upon or measured by the corpus of the Issuer
or the WFNMT; (c) the characterization of the Issuer and the
WFNMT for federal income tax purposes will be determinative of
the
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characterization of the Issuer and the WFNMT for Delaware
income tax purposes and assuming that the Issuer and the WFNMT
will not be taxed as associations or as publicly traded
partnerships for federal income tax purposes, neither of the
Issuer nor the WFNMT will be subject to Delaware income tax
and Noteholders who are not otherwise subject to Delaware
income tax will not be subject to tax by reason of their
ownership of the Notes and the receipt of income therefrom;
and (d) any income tax imposed by the State of Delaware that
might be applicable to the Issuer would be based upon "federal
taxable income," and for the purposes of determining such
income, the characterization of such income for federal income
tax purpose will be determinative, whether the
characterization of the transaction is that of a sale or a
loan.
(xii) The Transferor is the sole beneficial owner
of the Issuer.
(l) The Representative shall have received an opinion of
Emmet, Marvin & Martin, counsel to the Indenture Trustee dated the
Closing Date, satisfactory in form and substance to the Representative
and its counsel, to the effect that:
(i) The Indenture Trustee is organized and
validly existing as an Illinois banking corporation in good
standing under the laws of the State of Illinois and is
authorized and qualified to accept the trusts imposed by the
Indenture and to act as Indenture Trustee under the Indenture.
(ii) The acknowledgment by the Indenture Trustee
of the TSA has been duly authorized, executed and delivered by
the Indenture Trustee. The Indenture Trustee has duly
authorized, executed and delivered the Indenture. Assuming the
due authorization, execution and delivery thereof by the other
parties thereto, the Indenture is the legal, valid and binding
obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, subject to
bankruptcy and insolvency laws and general principles of
equity.
(iii) The Indenture Trustee has duly executed and
authenticated the Notes.
(iv) The Indenture Trustee is duly authorized and
empowered to exercise trust powers under applicable law.
(v) None of (x) the execution and authentication
of the Notes, (y) the acknowledgment of the TSA or (z) the
execution, delivery and performance of the Indenture by the
Indenture Trustee conflicts with or will result in a violation
of (A) any law or regulation of the United States of America
or the States of Illinois governing the banking or trust
powers of the Indenture Trustee or (B) the Organization
Certificate or Bylaws of the Indenture Trustee.
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(vi) No approval, authorization or other action
by, or filing with, any governmental authority of the United
States of America or the State of Illinois having jurisdiction
over the banking or trust powers of the Indenture Trustee is
required in connection with the execution and delivery by the
Indenture Trustee of the Indenture or the performance by the
Indenture Trustee of the terms of the Indenture or the
acknowledgment of the TSA.
(m) The Representative shall have received an opinion of
Emmet, Marvin & Martin, counsel to the WFNMT Trustee dated the Closing
Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The WFNMT Trustee is organized and validly
existing as an Illinois banking corporation in good standing
under the laws of the State of Illinois and is authorized and
qualified to accept the trusts imposed by the PSA and to act
as WFNMT Trustee under the PSA.
(ii) The WFNMT Trustee has duly authorized,
executed and delivered the PSA. Assuming the due
authorization, execution and delivery thereof by the other
parties thereto, the PSA is the legal, valid and binding
obligation of the WFNMT Trustee, enforceable against the WFNMT
Trustee in accordance with its terms, subject to bankruptcy
and insolvency laws and general principles of equity.
(iii) The WFNMT Trustee has duly executed and
authenticated the Collateral Certificate.
(iv) The WFNMT Trustee is duly authorized and
empowered to exercise trust powers under applicable law.
(v) None of (y) the execution and authentication
of the Collateral Certificate, and (z) the execution, delivery
and performance of the PSA by the WFNMT Trustee conflicts with
or will result in a violation of (A) any law or regulation of
the United States of America or the States of Illinois
governing the banking or trust powers of the WFNMT Trustee or
(B) the Organization Certificate or Bylaws of the WFNMT
Trustee.
(vi) No approval, authorization or other action
by, or filing with, any governmental authority of the United
States of America or the State of Illinois having jurisdiction
over the banking or trust powers of the WFNMT Trustee is
required in connection with the execution and delivery by the
WFNMT Trustee of the PSA or the performance by the WFNMT
Trustee of the terms of the PSA.
(n) The Representative shall have received reliance
letters addressed to the Representative, dated as of the Closing Date,
allowing the Representative to rely on each opinion of counsel
delivered to a Rating Agency, the Indenture Trustee, the Transferor or
the Bank in connection with the issuance of the Notes.
22
<Page>
(o) The Representative shall have received an opinion of
Spencer, Fane, Britt & Browne, special Kansas counsel to the Issuer,
dated the Closing Date, satisfactory in form and substance to the
Representative and its counsel, to the effect that (i) if WFNMT or the
Issuer were determined to be a foreign corporation or a foreign
business trust, it would be subject to an annual Kansas franchise tax
up to a maximum of $2,500 per year, but only if it either (A) qualifies
or registers to do business in the State of Kansas or (B) transacts
business in the State of Kansas and if WFNMT or the Issuer were
determined not to be one of these entitites, it will not be subject to
Kansas franchise tax; (ii) for Kansas income tax purposes, neither
WFNMT nor the Issuer will be treated as an entity subject to tax; and
(iii) Noteholders not otherwise subject to Kansas income tax or Kansas
franchise tax will not become subject to the Kansas income tax or
Kansas franchise tax by reason of their ownership of the Notes,
together with such other opinions related thereto as the Representative
reasonably requests.
(p) The Representative shall have received an opinion of
Senn, Lewis & Visciano, special Colorado counsel to the Issuer, dated
the Closing Date, satisfactory in form and substance to the
Representative and its counsel, to the effect that (i) for Colorado
income tax purposes, neither WFNMT nor the Issuer will be treated as an
entity subject to tax and (ii) Noteholders, not otherwise subject to
Colorado income tax, will not become subject to the Colorado income tax
by reason of their ownership of the Notes, together with such other
opinions related thereto as the Representative reasonably requests.
(q) The Representative shall have received an opinion of
Cozen and O'Connor, special New Jersey counsel to the Issuer, dated the
Closing Date, satisfactory in form and substance to the Representative
and its counsel, to the effect that (i) for New Jersey corporation
business tax purposes or New Jersey gross income tax purposes, neither
WFNMT nor the Issuer will be treated as an entity subject to tax and
(ii) Noteholders, not otherwise subject to New Jersey corporation
business tax, New Jersey gross income tax or New Jersey personal income
tax, will not become subject to the New Jersey corporation business
tax, New Jersey gross income tax or New Jersey personal income tax by
reason of their ownership of the Notes, together with such other
opinions related thereto as the Representative reasonably requests.
(r) The Representative shall have received evidence
satisfactory to the Representative that the Class A Notes shall be
rated "Aaa" by Moody's Investors Service, Inc. ("MOODY'S"), "AAA" by
Standard & Poor's Ratings Services ("STANDARD & POOR'S") and "AAA" by
Fitch, Inc. ("FITCH"), that the Class B Notes shall be rated no lower
than "A1" by Moody's, "A" by Standard & Poor's and "A+" by Fitch, and
that the Class C Notes shall be rated no lower than "Baa2" by Moody's,
"BBB" by Standard & Poor's and "Baa3" by Fitch.
The Transferor will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
23
<Page>
(a) The Transferor and the Bank, jointly and severally,
will indemnify and hold harmless each Underwriter and each Person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act from and against any losses, claims, damages
or liabilities, joint or several, to which the Underwriters or any of
them may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each Person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act for any actual legal or other expenses
reasonably incurred by the Underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that Transferor and the Bank
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with the Class A Underwriters' Information or the Class B Underwriters'
Information; PROVIDED FURTHER, that the Transferor and the Bank will
not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any preliminary prospectus to the extent
that any loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Offered Notes to a Person as
to whom it is established that there was not sent or given, at or prior
to written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as
then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by the Act if
the Transferor or the Bank notified the Representative in writing in
accordance with Section 5(a) hereof and previously furnished copies of
the Prospectus (excluding documents incorporated by reference) in the
quantity requested in accordance with Section 5(d) hereof to such
Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material
fact contained in the preliminary prospectus and corrected in the
Prospectus or the Prospectus as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless the Transferor and the Bank, and each of
their respective directors and officers and each Person who controls
the Transferor and the Bank, respectively, within the meaning of
Section 15 of the Act or Section 20 of the 1934 Act, against any
losses, claims, damages or liabilities to which the Transferor or the
Bank, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out
of or are based upon the omission or the alleged omission to state
therein a material fact required
24
<Page>
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that,
with respect to each of the Class A Underwriters and the Class B
Underwriters, such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with the Class A Underwriters' Information or the Class B
Underwriters' Information, respectively, and will reimburse any actual
legal or other expenses reasonably incurred by the Transferor and the
Bank in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
this section of notice of the commencement of any action or the
assertion by a third party of a claim, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party except and to the extent of any prejudice
to such indemnifying party arising from such failure to provide such
notice. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such
indemnified party under this section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and does not include a statement
as to, or an admission of, fault, culpability or failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Transferor and the Bank
on the one hand and the Underwriters on the other from the offering of
the Offered Notes, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Transferor and the
Bank on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Transferor
25
<Page>
and the Bank on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) of the Offered Notes received by
the Transferor bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Notes. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Transferor and the Bank or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission
with respect to the Offered Notes. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Underwriters
shall not be required to contribute any amount in excess of the amount
by which the total underwriting discount as set forth on the cover page
of the Prospectus Supplement exceeds the amount of damages which the
Underwriters have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission with
respect to the Offered Notes. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Transferor and the Bank under
this Section shall be in addition to any liability which the Transferor
or the Bank may otherwise have and shall extend, upon the same terms
and conditions, to each Person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of any Underwriter
under this Section shall be in addition to any liability that such
Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Transferor or the Bank, to each
officer of the Transferor who has signed the Registration Statement and
to each Person, if any, who controls the Transferor or the Bank within
the meaning of the Act.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Transferor and the Bank or their officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters, the Transferor, the
Bank or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Notes. If
this Agreement is terminated or if for any reason other than default by the
Underwriters the purchase of the Offered Notes by the Underwriters is not
consummated, the Transferor and the Bank shall remain responsible for the
expenses to be paid by them pursuant to Section 5 and the respective obligations
of the Transferor, the Bank and the Underwriters pursuant to Section 7 shall
remain in effect. If for any reason the purchase of the Offered Notes by the
Underwriters is not consummated other than solely because of the occurrence of
any event specified in clause (ii), (iii) or (iv) of Section 6(c), the
Transferor and the Bank will reimburse the Underwriters for all out-of-pocket
expenses reasonably incurred by them in connection with the offering of the
Offered Notes.
26
<Page>
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS.
(a) Each Underwriter, severally, represents and warrants
to the Transferor and the Bank that it has not and will not use any
information that constitutes "COMPUTATIONAL MATERIALS," as defined in
the Commission's No-Action Letter, dated May 20, 1994, addressed to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder Structured Asset Corporation (as made generally
applicable to registrants, issuers and underwriters by the Commission's
response to the request of the Public Securities Association dated May
27, 1994), with respect of the offering of the Offered Notes.
(b) Each Underwriter, severally, represents and warrants
to the Transferor and the Bank that it has not and will not use any
information that constitutes "ABS TERM SHEETS," as defined in the
Commission's No-Action Letter, dated February 17, 1995, addressed to
the Public Securities Association, with respect to the offering of the
Offered Notes.
10. OBLIGATIONS OF THE UNDERWRITERS.
(a) Each Underwriter represents and agrees that it has
not and will not, directly or indirectly, offer, sell or deliver any of
the Offered Notes or distribute the Prospectus or any other offering
materials relating to the Offered Notes in or from any jurisdiction
except under circumstances that will, to the best of its knowledge and
belief, result in compliance with any applicable laws and regulations
thereof and that, to the best of its knowledge and belief, will not
impose any obligations on the Transferor, the Bank or the Issuer except
as set forth herein.
(b) Each Underwriter further represents and agrees that
it will not, in connection with the initial distribution of the Offered
Notes, transfer, deposit or otherwise convey any Offered Notes into a
trust or other type of special purpose vehicle that issues securities
or other instruments backed in whole or in part by, or that represents
interests in, such Offered Notes unless either (i) the Offered Notes so
transferred, together with any other securities issued by the
Transferor, the Bank, any of their affiliates or any trust to which the
Transferor or the Bank transfers receivables, make up less than 10% of
the assets of such special purpose vehicle or (ii) the Bank gives its
prior written consent to such conveyance, which consent shall not be
unreasonably withheld.
11. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Offered Notes agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Offered Notes set forth opposite their names in Schedule A hereto bear to the
aggregate amount of Offered Notes set forth opposite the names of all the
remaining Underwriters) the Offered Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event
that the aggregate amount of Offered Notes which the defaulting Underwriter or
Underwriters agreed but failed to
27
<Page>
purchase shall exceed 10% of the aggregate amount of Offered Notes set forth in
Schedule A hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Offered
Notes, and if such nondefaulting Underwriters do not purchase all the Offered
Notes, this Agreement will terminate without liability to any nondefaulting
Underwriter, the Transferor or the Bank. In the event of a default by any
Underwriter as set forth in this Section 11, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representative shall determine
in order that the required changes in the Registration Statement and Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter for its liability, if
any, to the Transferor and the Bank and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
12. NOTICES. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Anthony Coniglio
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
15. FINANCIAL SERVICES ACT. Each Underwriter represents and
warrants to, and agrees with, the Transferor and the Bank that (w) it has
complied and shall comply with all applicable provisions of the Financial
Services Act 1986 and the Public Offers of Securities Regulations 1995 (the
"REGULATIONS") with respect to anything done by it in relation to the Offered
Notes in, from or otherwise involving the United Kingdom; (x) it has only issued
or passed on and shall only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Offered Notes to a Person who
is of a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or who is a Person to whom
the document may otherwise lawfully be issued or passed on; (y) it has not
offered or sold and, during the period of six months from the date hereof, will
not offer or sell any Offered Note to Persons in the United Kingdom except to
Persons whose ordinary activities involve them in acquiring, holding, managing,
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Regulations.
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<Page>
16. REPRESENTATIVE. The representative will act for the several
Underwriters in connection with this Agreement and the transactions contemplated
hereby and any action undertaken under this Agreement taken by the
Representatives will be binding upon the Underwriters.
29
<Page>
If you are in agreement with the foregoing, please sign two
counterparts hereof and return one to the Transferor whereupon this letter and
your acceptance shall become a binding agreement among the Transferor, the Bank
and the Underwriters.
Very truly yours,
WFN CREDIT COMPANY, LLC
By /s/ Robert P. Armiak
-----------------------------------------
Name: Robert P. Armiak
Title:Vice President and Treasurer
WORLD FINANCIAL NETWORK NATIONAL BANK
By /s/ Robert P. Armiak
-----------------------------------------
Name: Robert P. Armiak
Title: Vice President and Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
J.P. MORGAN SECURITIES INC.
as Representative of the
Underwriters set forth herein
By /s/ Anthony Coniglio
------------------------------------
Name: Amthony Coniglio
Title: Vice President
<Page>
SCHEDULE A
CLASS A NOTES
<Table>
<Caption>
Underwriters Principal Amount of
- ------------ Class A Notes
-------------------
J.P. Morgan Securities Inc. $ 141,000,000
Banc One Capital Markets, Inc. 141,000,000
Barclays Capital Inc. 140,000,000
Credit Suisse First Boston Corporation 140,000,000
First Union Securities, Inc. 140,000,000
-------------
Total $ 702,000,000
=============
</Table>
CLASS B NOTES
<Table>
<Caption>
Underwriters Principal Amount of
- ------------ Class B Notes
-------------------
J.P. Morgan Securities Inc. $ 38,250,000
Banc One Capital Markets, Inc. $ 38,250,000
------------
Total $ 76,500,000
============
</Table>