Exhibit 1.1
EXECUTION COPY
April 7, 2009
World Financial Network Credit Card
Master Note Trust
$560,000,000 Class A Fixed Rate Asset
Backed Notes, Series 2009-A
UNDERWRITING
AGREEMENT
Barclays Capital Inc.
as an Underwriter and as a
Representative
of the several Underwriters set
forth
on Schedule A hereto
745 7th Avenue, 4th Floor
New York, New York 10019
J.P. Morgan Securities
Inc.
as an Underwriter and as a
Representative
of the several Underwriters set
forth
on Schedule A hereto
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 $560,000,000 aggregate principal
amount of World Financial Network Credit Card Master Note Trust
Class A Fixed Rate Asset Backed Notes, Series 2009-A (the
“ Class A Notes ”), $26,582,278 aggregate
principal amount of World Financial Network Credit Card Master Note
Trust Class M Fixed Rate Asset Backed Notes, Series 2009-A (the
“ Class M Notes ”), $33,670,886 aggregate
principal amount of World Financial Network Credit Card Master Note
Trust Class B Fixed Rate Asset Backed Notes, Series 2009-A (the
“ Class B Notes ”), and $88,607,595 aggregate
principal amount of World Financial Network Credit Card Master Note
Trust Class C Fixed Rate Asset Backed Notes, Series 2009-A (the
“ Class C Notes ”) (collectively, the
Class A Notes, the Class M Notes, the Class B Notes and the
Class C Notes are the “ Notes ”). The
Class A Notes are referred to herein as the “
Underwritten Notes ”. The representatives of the
Underwriters may be referred to herein individually as a “
Representative ” and collectively as the “
Representatives .” The Class M Notes, the Class B
Notes and the Class C Notes (collectively, the “ Purchased
Notes ”) will be offered and sold directly by WFN LLC to
one or more affiliates of WFN LLC (such offers and sales referred
to herein, collectively, as the “ Purchased Notes
Transaction ”).
One or more of the underwriters for
the Class A Notes listed on Schedule A hereto (the
“ Underwriters ”) is a financial institution
appearing on the Federal Reserve Bank of New York’s list of
Primary Government Securities Dealers Reporting to the Government
Securities Dealers Statistics Unit of the Federal Reserve Bank of
New York (each such financial institution, a “ Primary
Dealer ”), and may be a party to that certain Master Loan
and Security Agreement among the Federal Reserve Bank of New York
(the “ FRBNY ”),
as Lender, various Primary Dealers from time to
time party thereto, each on behalf of itself and its respective
customers as borrowers thereunder from time to time, The Bank of
New York Mellon, as Administrator, and The Bank of New York Mellon,
as Custodian (the “ MLSA ”), in connection with
the Term Asset-Backed Securities Loan Facility (“ TALF
”). To the extent expressly provided in this Agreement, and
subject to the limitations in Section 8, certain of the
rights, benefits and remedies of the Underwriters under this
Agreement will be for the benefit of, and will be enforceable by,
each Underwriter not only in such capacity but also in its capacity
as a Primary Dealer and as a signatory to the MLSA.
The Issuer is a Delaware statutory
trust formed pursuant to (a) an Amended and Restated Trust
Agreement, dated as of August 1, 2001, between WFN LLC, as
transferor (the “ Transferor ”), and U.S. Bank
Trust National Association (“ U.S. Bank ”), as
successor to Chase Bank USA, National Association (“
Chase ”), as owner trustee (the “ Owner
Trustee ”), as supplemented by the Instrument of
Resignation, Appointment and Acceptance (the “ Instrument
of Resignation ”), dated as of September 29, 2006,
by and among the Transferor, Chase, as resigning Owner Trustee, and
U.S. Bank, as successor Owner Trustee (as heretofore amended and
supplemented, the “ Trust Agreement ”), and
(b) the filing of a certificate of trust with the Secretary of
State of Delaware on July 27, 2001, as amended by the
Certificate of Amendment to Certificate of Trust of World Financial
Network Credit Card Master Note Trust, filed with the Secretary of
State of Delaware on September 29, 2006. The Notes will be
issued pursuant to a Master Indenture, dated as of August 1,
2001, as amended by the Omnibus Amendment referred to below, the
Supplemental Indenture No. 1 to Master Indenture, dated as of
August 13, 2003, the Supplemental Indenture No. 2 to
Master Indenture, dated as of June 13, 2007 and the
Supplemental Indenture No. 3 to Master Indenture, dated as of
May 27, 2008, each between the Issuer and The Bank of New York
Mellon Trust Company, N.A. (“ BNYMTCNA ”), as
successor to BNY Midwest Trust Company (“ BNYMTC
”), as indenture trustee (the “ Indenture
Trustee ”), and as supplemented by the Agreement of
Resignation, Appointment and Acceptance, dated as of May 27,
2008, by and among World Financial Network National Bank (the
“ Bank ”), as administrator (in such capacity,
the “ Administrator ”), the Issuer, BNYMTC, as
resigning Indenture Trustee, and BNYMTCNA, as successor Indenture
Trustee (as heretofore amended and supplemented, the “
Master Indenture ”), and as further supplemented by
the Series 2009-A Indenture Supplement with respect to the Notes,
to be dated as of April 14, 2009 (the “ Indenture
Supplement ” and, together with the Master Indenture, the
“ Indenture ”).
The primary asset of the Issuer is a
certificate (the “ Collateral Certificate ”)
representing a beneficial interest in the assets held in the World
Financial Network Credit Card Master Trust (“ WFNMT
”), issued pursuant to the Second Amended and Restated
Pooling and Servicing Agreement, dated as of January 17, 1996,
as amended and restated as of September 17, 1999, as amended
and restated a second time as of August 1, 2001, as amended by
the Omnibus Amendment referred to below, the Second Amendment to
Second Amended and Restated Pooling and Servicing Agreement, dated
as of May 19, 2004, the Third Amendment to Second Amended and
Restated Pooling and Servicing Agreement, dated as of
March 30, 2005, the Fourth Amendment to the Second Amended and
Restated Pooling and Servicing Agreement, dated as of June 13,
2007, the Fifth Amendment to the Second Amended and Restated
Pooling and Servicing Agreement, dated as of October, 26, 2007 and
the Sixth Amendment to the Second Amended and Restated Pooling and
Servicing Agreement, dated as of May 27, 2008, each among the
Transferor, the Bank, as servicer (the “ Servicer
”), and
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BNYMTCNA, as successor to BNYMTC (the
successor-in-interest to the corporate trust administration of
Harris Trust and Savings Bank), as trustee (the “ WFNMT
Trustee ”), and as supplemented by the Agreement of
Resignation, Appointment and Acceptance, dated as of May 27,
2008, by and among the Transferor, BNYMTC, as resigning WFNMT
Trustee, and BNYMTCNA, as successor WFNMT Trustee (as heretofore
amended and supplemented, the “ Amended and Restated
Pooling and Servicing Agreement ”), and as further
supplemented by the Collateral Series Supplement to the Amended and
Restated Pooling and Servicing Agreement, dated as of
August 21, 2001, and as amended as of November 7, 2001
(as heretofore amended, the “ Collateral Supplement
” and, together with the Amended and Restated Pooling and
Servicing Agreement, the “ PSA ”). The assets of
WFNMT include, among other things, certain amounts due (the “
Receivables ”) on a pool of private-label credit card
accounts of the Bank (the “ Accounts
”).
The Receivables are transferred to
WFNMT pursuant to the Amended and Restated Pooling and Servicing
Agreement. The Receivables transferred to WFNMT by the Transferor
are acquired by the Transferor from the Bank pursuant to a
Receivables Purchase Agreement, dated as of August 1, 2001
(the “ Receivables Purchase Agreement ”),
between WFN LLC and the Bank. The Collateral Certificate has been
transferred by the Transferor to the Issuer pursuant to the
Transfer and Servicing Agreement, dated as of August 1, 2001,
as amended by the First Amendment to Transfer and Servicing
Agreement, dated as of November 7, 2002, the Omnibus Amendment
referred to below, the Third Amendment to Transfer and Servicing
Agreement, dated as of May 19, 2004, the Fourth Amendment to
Transfer and Servicing Agreement, dated as of March 30, 2005,
the Fifth Amendment to the Transfer and Servicing Agreement, dated
as of June 13, 2007, and the Sixth Amendment to the Transfer
and Servicing Agreement, dated as of October 26, 2007 (as
heretofore amended, the “ TSA ”), among the
Transferor, the Servicer, and the Issuer. References to the
“Omnibus Amendment” herein refer to that certain
Omnibus Amendment, dated as of March 31, 2003, among the
Transferor, the Bank, the Servicer, the Issuer, the WFNMT Trustee
and the Indenture Trustee.
The Bank has agreed to provide
notices and perform on behalf of the Issuer certain other
administrative obligations required by the TSA, the Trust
Agreement, the Master Indenture and each indenture supplement for
each series of notes issued by the Issuer, pursuant to an
Administration Agreement, dated as of August 1, 2001 (the
“ Administration Agreement ”), between the Bank,
as Administrator, and the Issuer. The TSA, the PSA, the Receivables
Purchase Agreement, the Indenture, the Trust Agreement and the
Administration Agreement are referred to herein, collectively, as
the “ Program Documents .”
This Underwriting Agreement is
referred to herein as this “ Agreement .” To the
extent not defined herein, capitalized terms used herein have the
meanings assigned in the Program Documents.
A shelf registration statement on
Form S-3 (having registration number 333-133170) has been prepared
and filed with the Securities and Exchange Commission (the “
Commission ”) in accordance with the provisions of the
Securities Act of 1933, as amended (the “ Act
”), and the rules and regulations of the Commission
thereunder (the “ Rules and Regulations ”),
including a form of prospectus, relating to the Notes and the
Collateral Certificate. For purposes of this 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
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the Commission and “Initial Effective
Date” means the date of the Effective Time. The
registration statement as amended has been declared effective by
the Commission. If any post-effective amendment has been filed with
respect thereto, prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared
effective by the Commission. Such registration statement, as
amended at the Effective Time, including all materials incorporated
by reference therein and including all information (if any) deemed
to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is referred to
in this Agreement as the “Registration
Statement.”
WFN LLC proposes to file with the
Commission pursuant to Rule 424(b) (“ Rule 424(b)
”) of the Rules and Regulations of the Commission under the
Act a supplement (together with the information referred to under
the caption “Static Pool Information” therein and set
forth in Annex II thereto (the “ Static Pool
Information ”), without regard to whether such
information is deemed to be a part of a prospectus pursuant to
Item 1105(d) of Regulation AB under the Act (the “
Prospectus Supplemen t”)) to the prospectus included
in the Registration Statement (such prospectus, in the form it
appears in the Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424(b), is
hereinafter referred to as the “ Base Prospectus
”) relating to the Notes and the method of distribution
thereof. The Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, is
hereinafter referred to as the “ Prospectus
.”
Prior to 12:07 p.m. (Eastern Time
U.S.) on April 7, 2009, which is the time the first
“Contract of Sale” (within the meaning of Rule 159 of
the Act) with respect to the Underwritten Notes, as designated by
the Representatives, was entered into (hereinafter referred to as
the “ Time of Sale ”), the Bank and the
Transferor prepared a Preliminary Prospectus, dated April 6,
2009 (subject to completion) (the “ Time of Sale
Information ”). As used herein, “ Preliminary
Prospectus ” means, with respect to any date or time
referred to herein, the most recent preliminary Prospectus
Supplement, as amended or supplemented (including any Corrected
Prospectus (as defined below)), if applicable, together with the
Static Pool Information (the “ Preliminary Prospectus
Supplement ”), together with the Base Prospectus, which
has been prepared and delivered by the Bank and the Transferor to
the Underwriters in accordance to the provisions hereof. As used
herein, the “Effective Date” means April 7,
2009, which is the earlier of the date the Prospectus was first
used or the date of the Time of Sale, which therefore is the date
as of which the Prospectus is deemed to be part of and included in
the Registration Statement pursuant to Rule 430B(f)(2) under the
Act.
If, subsequent to the Time of Sale
(as defined above) and prior to the Closing Date, the Preliminary
Prospectus included an untrue statement of material fact or omitted
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading and the Transferor has prepared and delivered
to the Underwriters a Corrected Prospectus (as defined below), and
as a result investors in the Notes elect to terminate their
existing Contracts of Sale and enter into new Contracts of Sale
(within the meaning of Rule 159 under the Act) for any Notes, then
“Time of Sale Information” will refer to the
information conveyed to investors on the date of entry into the
first such new Contract of Sale pursuant to an amended Preliminary
Prospectus approved by the Transferor and the Representatives that
corrects such material misstatements or omissions (a “
Corrected Prospectus ”) and “Time of Sale”
will refer to the date on which such new Contracts of Sale were
first entered into.
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The Transferor and the Bank hereby
agree, severally and not jointly, with the Underwriters as
follows:
2. Representations and Warranties
of the Transferor and the Bank . Each of the Transferor
(the representations and warranties as to the Transferor being
given by the Transferor) and the Bank (the representations and
warranties as to the Bank being given by the Bank) represents and
warrants to and agrees (i) with the Underwriters, and
(ii) with respect to clauses (o)(ii), (v), (w) and (bb)
of this Section 2 only, with the Underwriters who are Primary
Dealers, in their capacities as Primary Dealers with respect to
TALF loans secured by the Underwritten Notes, that:
(a) The Transferor is duly
organized, validly existing and in good standing as a limited
liability company under the laws of the State of Delaware, has all
requisite power, authority and legal right to own its property,
transact the business in which it is now engaged and conduct its
business as described in the Registration Statement, the
Preliminary Prospectus and the Prospectus, and had at all relevant
times and has currently all requisite power, authority and legal
right to execute, deliver and perform its obligations under this
Agreement, the TSA, the PSA, the Receivables Purchase Agreement and
the Trust Agreement and to authorize the issuance of the Notes and
the Collateral Certificate.
(b) The Bank is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and is in good standing under
the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business, except where failure to so qualify would not have a
material adverse effect, has all requisite power, authority and
legal right to own its property and conduct its credit card
business as such properties are presently owned and such business
is presently conducted, and conduct its business as described in
the Registration Statement, the Preliminary Prospectus and the
Prospectus, and to own the Accounts, and had at all relevant times
and has currently all requisite power, authority and legal right to
execute, deliver and perform its obligations under the Receivables
Purchase Agreement, the TSA, the PSA and the Administration
Agreement.
(c) The execution, delivery and
performance of each of the Program Documents to which it is a
party, the incurrence of the obligations herein and therein set
forth, the consummation of the transactions contemplated hereby and
thereby, and the consummation of the Purchased Notes Transaction,
and with respect to the Transferor, the issuance of the Notes and
the Collateral Certificate, have been duly and validly authorized
by the Transferor 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.
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(e) Each of the Program Documents to
which the Transferor or the Bank is a party 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 Federal Deposit Insurance Corporation (the “ FDIC
”), (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (iii) certain
remedial provisions of the Indenture may be unenforceable in whole
or in part under the UCC, but the inclusion of such provisions does
not render the other provisions of the Indenture invalid and
notwithstanding that such provisions may be unenforceable in whole
or in part, the Indenture Trustee, on behalf of the holders of the
Notes (the “ Noteholders ”), will be able to
enforce the remedies of a secured party under the UCC.
(f) The Notes have been duly
authorized, will be issued pursuant to the terms of the Indenture
and, when executed by the Owner Trustee on behalf of the Issuer and
authenticated by the Indenture Trustee in accordance with the
Indenture and delivered pursuant to the Indenture and this
Agreement, will be duly and validly executed, issued and
outstanding and will constitute legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, subject to (i) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors’
rights generally, (ii) the effect of general principles of
equity including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of whether
considered and applied in a proceeding in equity or at law), and
also to the possible unavailability of specific performance or
injunctive relief, and (iii) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability
where such indemnification or contribution is contrary to public
policy. The Notes will be in the form contemplated by the
Indenture, and the Notes and the Indenture will conform to the
descriptions thereof contained in the Preliminary Prospectus, the
Prospectus and the Registration Statement.
(g) The Collateral Certificate has
been issued pursuant to the terms of the PSA and, when executed and
authenticated by the WFNMT Trustee in accordance with the PSA, was
validly issued. The Collateral Certificate remains outstanding. The
Collateral Certificate is in the form contemplated by the PSA, and
the Collateral Certificate and the PSA conform to the descriptions
thereof contained in the Preliminary Prospectus, the Prospectus and
the Registration Statement.
(h) Neither the Transferor nor the
Bank is in violation of any Requirement of Law or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other instrument to which it
is a party or by which it is bound or to which any of its property
is subject, which violation or defaults separately or in the
aggregate would have a material adverse effect on the Transferor or
the Bank.
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(i) None of the issuance and sale of
the Notes, the issuance of the Collateral Certificate or the
execution and delivery by the Transferor or the Bank of this
Agreement or any Program Document to which it is a party, nor the
incurrence by the Transferor or the Bank of the obligations herein
and therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment of the
terms hereof or thereof, nor the consummation of the Purchased
Notes Transaction, does or will (A) violate any Requirement of
Law presently in effect, applicable to it or its properties or by
which it or its properties are or may be bound or affected,
(B) conflict with, or result in a breach of, or constitute a
default under, any indenture, contract, agreement, mortgage, deed
of trust or instrument to which it is a party or by which it or its
properties are bound, which conflict, breach or default would have
a material adverse effect on the Notes, the Collateral Certificate,
the Transferor or the Bank, or (C) result in the creation or
imposition of any Lien upon any of its property or assets (except
for those encumbrances created under the Program Documents), which
Lien would have a material adverse effect on the Notes, the
Collateral Certificate, the Transferor or the Bank.
(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
issuance and sale of the Notes, the execution and delivery by the
Transferor or the Bank of this Agreement or the Program Documents
to which it is a party or to the consummation of the transactions
contemplated hereunder and thereunder, or to the fulfillment of the
terms hereof and thereof, or to the consummation of the Purchased
Notes Transaction, have been or will have been obtained on or
before the Closing Date.
(k) The Bank has authorized the
conveyance of the Receivables to the Transferor and WFNMT, as
applicable; the Transferor has authorized the conveyance of the
Receivables to WFNMT; the Transferor has authorized the issuance of
the Collateral Certificate by WFNMT; and the Transferor has
authorized the Issuer to issue and sell the Notes.
(l) All actions required to be taken
by the Transferor or the Bank as a condition to the offer and sale
of the Notes as described herein or the consummation of any of the
transactions described in the Preliminary Prospectus, 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 Commission
thereunder.
(n) The representations and
warranties made by the Transferor in the TSA, the PSA, the Trust
Agreement and the Receivables Purchase Agreement or made in any
Officer’s Certificate of the Transferor delivered pursuant to
any Program Document to which it is a party were true and correct
in all material respects at the time made and will be true and
correct in all
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material respects on and as of the
Closing Date, as if set forth herein, except that to the extent
that any such representation or warranty expressly relates to an
earlier date, such representation or warranty was true and correct
at and as of such earlier date.
(o) The representations and
warranties made by the Bank (i) in the Receivables Purchase
Agreement, and in its capacity as Servicer and Administrator, in
the TSA, the PSA and the Administration Agreement, respectively, or
made in any Officer’s Certificate of the Bank delivered
pursuant to any Program Document to which it is a party, and
(ii) in any TALF Certification (as defined in subsection 6(s))
to which it is a party, were true and correct in all material
respects at the time made and will be true and correct in all
material respects on and as of the Closing Date, as if set forth
herein, except that to the extent that any such representation or
warranty expressly relates to an earlier date, such representation
or warranty was true and correct at and as of such earlier
date.
(p) The Transferor agrees it has not
granted, assigned, pledged or transferred and shall not grant,
assign, pledge or transfer to any Person a security interest in, or
any other right, title or interest in, the Receivables or the
Collateral Certificate, except as provided in the PSA and the TSA,
and agrees to take all action required by the PSA and the TSA in
order to maintain the security interest in the Receivables and the
Collateral Certificate granted pursuant to the PSA and the TSA, as
applicable.
(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) Other than as set forth or
contemplated in the Preliminary Prospectus and the Prospectus,
there are no legal or governmental proceedings or investigations
pending or, to its knowledge, threatened to which the Transferor,
the Bank or any of their respective Affiliates is or may be a party
or to which any property of the Transferor, the Bank or any of
their respective Affiliates is or may be the subject
(i) which, if determined adversely to the Transferor, the
Bank, or such Affiliate, as applicable, could individually or in
the aggregate reasonably be expected to have a material adverse
effect on the general affairs, business, prospects, management,
financial position, stockholders’ equity or results of
operations of the Transferor or the Bank and their respective
Affiliates, taken as a whole, or that would reasonably be expected
to materially adversely affect the interests of the Noteholders,
(ii) asserting the invalidity of this Agreement, any of the
Program Documents, the Purchased Notes Transaction or the Notes or
(iii) seeking to prevent the issuance of the Notes or of any
of the transactions contemplated by this Agreement or any of the
Program Documents, or the Purchased Notes Transaction.
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(s) No Early Amortization Event, and
no event that would become an Early Amortization Event after any
applicable grace period has elapsed, exists with respect to any
outstanding Series of notes issued by the Issuer and no event has
occurred that would constitute (after the issuance of such notes)
an Early Amortization Event or would become an Early Amortization
Event after any applicable grace period has elapsed.
(t) The Registration Statement has
been filed with, and has been declared effective by, the
Commission.
(u) On each of the Initial Effective
Date and the Effective Date, the Registration Statement conformed
in all material respects to the applicable requirements of the Act
and the Rules and Regulations of the Commission thereunder and the
TIA and the rules and regulations thereunder and did not include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and on the date of this
Agreement, the Registration Statement, the Preliminary Prospectus
and the Prospectus conform, and at the time of filing of the
Preliminary Prospectus and the Prospectus pursuant to Rule 424(b),
the Registration Statement, the Preliminary Prospectus and the
Prospectus will conform, in all material respects with the
requirements of the Act and the Rules and Regulations and the TIA
and the rules and regulations thereunder and no such documents
includes, or will include, any untrue statement of a material fact
or omits, or will omit, to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; provided , however , that neither the
Transferor nor the Bank makes any representations or warranties as
to statements in or omissions from any of such documents based upon
written information furnished to the Transferor or the Bank by the
Underwriters specifically for use therein. Each of the Transferor
and the Bank hereby acknowledges that the only information provided
by the Underwriters for inclusion in the Registration Statement,
the Preliminary Prospectus and the Prospectus is set forth
(i) on the cover page of the Prospectus Supplement on the line
across from “Price to public,” in the table under the
heading “Class A Notes,” (ii) in the table
following the third paragraph under the heading
“Underwriting” in the Prospectus Supplement in the
column labeled “Class A Notes” and (iii) in the
penultimate paragraph under the heading “Underwriting”
in the Preliminary Prospectus Supplement and the Prospectus
Supplement (the “ Underwriters’ Information
”).
(v) The Time of Sale Information at
the Time of Sale did not, and any amendment thereof or supplement
thereto, as of its respective date did not, and at the Closing Date
will not, include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that no representation or warranty is made with respect
to the omission of pricing and price-dependent information, which
information shall of necessity appear only in the Prospectus);
provided , however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with the Underwriters’
Information.
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(w) The Prospectus at the date of
the Prospectus Supplement, and any amendment thereof or supplement
thereto, as of its respective date, did not and at the Closing Date
will not, include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided , however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with the Underwriters’
Information.
(x) (i) Other than the Preliminary
Prospectus, the Prospectus and the Permitted Additional Information
(as defined in Section 10), the Transferor and the Bank
(including its agents and representatives other than the
Underwriters in their capacity as such) have not made, used,
prepared, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Notes; provided , however , that the Transferor and
the Bank may prepare and disseminate a “written
communication” (as defined in Rule 405 under the Act) in a
form agreed to by the parties hereto (the “ Issuer Free
Writing Prospectus ”); (ii) the Issuer Free Writing
Prospectus will not, as of the date such Issuer Free Writing
Prospectus is disseminated, include any untrue statement of a
material fact or omit any material fact necessary to make the
statements contained therein, in light of the circumstances under
which they were made, not misleading; (iii) the Issuer Free
Writing Prospectus shall contain a legend substantially in the form
of and in compliance with Rule 433(c)(2)(i) of the Act, and shall
otherwise conform to any requirements for “free writing
prospectuses” under the Act; and (iv) the Issuer Free
Writing Prospectus shall be filed with the Commission pursuant to
Rule 433 thereunder in the manner and within the time period
required by Rule 433(d)(1).
(y) (i) It did not enter into any
contract of sale for any Purchased Notes prior to the Time of Sale
and (ii) it will convey to each investor to whom Purchased
Notes are sold by it during the period prior to the filing of the
final Prospectus, at or prior to the applicable time of any such
contract of sale with respect to such investor, the Preliminary
Prospectus.
(z) Since the respective dates as of
which information is given in the Registration Statement, the
Preliminary Prospectus or the Prospectus, except as otherwise set
forth therein, there has not been any material adverse change in
(i) the condition, financial or otherwise, or in the earnings,
business or operations, of the Bank or the Transferor and
(ii) the financial or statistical information contained in the
Preliminary Prospectus Supplement or the Prospectus Supplement
under the captions “Receivables Performance” and
“The Trust Portfolio.”
(aa) The Transferor was not, on the
date on which the first bona fide offer of the Notes was made, an
“ineligible issuer” as defined in Rules 405 under the
Act.
(bb) On the Closing Date,
(i) the Transferor and the Bank will have taken all actions
required by the FRBNY for the Underwritten Notes to be eligible
collateral under the TALF, and (ii) the Underwritten Notes
will be eligible collateral under the
10
TALF; provided ,
however , that neither the Transferor nor the Bank makes any
representation or warranty with respect to the availability of or
the eligibility of a borrower for loans under the TALF.
3. Purchase, Sale, Payment and
Delivery of the Underwritten Notes .
(a) On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the
Transferor agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Transferor,
at a purchase price of 99.91957% of the principal amount thereof,
$560,000,000 aggregate principal amount of the Class A Notes,
each Underwriter to purchase the amounts shown on Schedule A
hereto.
(b) The Transferor will cause the
Issuer to deliver the Underwritten Notes to the Underwriters
against payment of the purchase price in immediately available
funds, drawn to the order of the Transferor, at the office of Mayer
Brown LLP, in Chicago, Illinois at 10:00 a.m., Chicago time, on
April 14, 2009, or at such other time not later than seven
full business days thereafter as the Representatives and the
Transferor determine, such time being herein referred to as the
“ Closing Date .” The Class A Notes to be
delivered shall be represented by one or more definitive notes
registered in the name of Cede & Co., as nominee for The
Depository Trust Company. The Notes will be available for
inspection by the Underwriters at the office at which the Notes are
to be delivered no later than five hours before the close of
business in New York City on the business day prior to the Closing
Date.
4. Offering by Underwriters .
It is understood that after the Initial Effective Date, the
Underwriters propose to offer the Underwritten Notes for sale to
the public (which may include selected dealers) as set forth in the
Prospectus. The Underwriters agree with the Transferor and the Bank
that the Underwriters will not sell the Underwritten Notes through
an office physically located in the State of Kansas, except to a
person that is otherwise subject to Kansas income tax or Kansas
franchise tax.
5. Certain Agreements of the
Transferor . The Transferor agrees with the Underwriters
that:
(a) Immediately following the
execution of this Agreement, the Transferor will prepare a
Prospectus Supplement setting forth the amount of the Notes covered
thereby and the terms thereof not otherwise specified in the Base
Prospectus, the price at which the Underwritten Notes are to be
purchased by the Underwriters, the initial public offering price,
the selling concessions and allowances, and such other information
as the Transferor deems appropriate. The Transferor will transmit
the Prospectus, including such Prospectus Supplement, to the
Commission pursuant to Rule 424(b) by a means reasonably calculated
to result in filing with the Commission pursuant to Rule 424(b).
The Transferor will not file any amendment to the Registration
Statement with respect to the Notes or supplement to the Prospectus
unless a copy has been furnished to each Representative for its
review a reasonable time prior to the proposed filing thereof or to
which the Representatives shall reasonably object in writing. The
Transferor will advise the Representatives promptly of (i) the
effectiveness of any amendment or supplementation of the
11
Registration Statement, the
Preliminary Prospectus or Prospectus, (ii) any request by the
Commission for any amendment or supplementation of the Registration
Statement, the Preliminary Prospectus or the Prospectus or for any
additional information, (iii) the receipt by the Transferor of
any notification with respect to the suspension of qualification of
the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes and (iv) the
institution by the Commission of any stop order proceeding in
respect of the Registration Statement, or of any prevention or
suspension of the use of the Preliminary Prospectus or the
Prospectus, and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus
relating to the Notes is required to be delivered under the Act,
any event occurs as a result of which the Preliminary Prospectus or
Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Preliminary Prospectus or the
Prospectus to comply with the Act, the Transferor promptly will
notify each Representative of such event and prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Underwriters’ consent to, nor the
Underwriters’ delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 6.
(c) As soon as practicable, the
Transferor will cause the Issuer to make generally available to the
Noteholders an earnings statement or statements of the Issuer
covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder; provided , that this covenant may be
satisfied by posting monthly investor reports for the Issuer for
each month in such 12-month period on a publicly available
website.
(d) The Transferor will furnish to
each Representative an electronic copy of the Registration
Statement, the Preliminary Prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon
as available.
(e) The Transferor will endeavor to
qualify the Underwritten Notes for sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and the determination of the eligibility for
investment of the Underwritten Notes under the laws of such
jurisdictions as the Representatives may designate and will
continue such qualifications in effect so long as required for the
distribution of the Underwritten Notes; provided ,
however , that the Transferor shall not be obligated to
qualify to do business in any jurisdiction where such qualification
would subject the Transferor to general or unlimited service of
process in any jurisdiction where it is not now so
subject.
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(f) So long as any Underwritten Note
is outstanding, the Transferor will furnish, or cause the Servicer
to furnish, to each Representative copies of (i) each
certificate and the annual statements of compliance delivered to
the WFNMT Trustee and each Rating Agency pursuant to
Section 3.5 of the PSA and the independent certified public
accountants’ servicing reports furnished to the WFNMT
Trustee, the Servicer and each Rating Agency pursuant to Sections
3.6(a) and (b) of the PSA and (ii) copies of each
certificate and the annual statements of compliance delivered to
the Owner Trustee, the Indenture Trustee and each Rating Agency
pursuant to Section 3.5 of the TSA and the independent
certified public accountants’ servicing reports furnished to
the Indenture Trustee, the Servicer and the Rating Agencies
pursuant to Sections 3.6(a) and (b) of the TSA, by first class
mail as soon as practicable after such certificates, statements and
reports are furnished to the WFNMT Trustee, the Owner Trustee, the
Indenture Trustee or the Rating Agencies, as the case may be;
provided , however , that the Transferor’s
obligations pursuant to this subsection 5(f) shall be deemed
satisfied to the extent that such certificates, statements or
reports are filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), on or before the date the Transferor would otherwise be
required to furnish to each Representative copies of such
certificates, statements or reports pursuant to this subsection
5(f).
(g) So long as any Underwritten Note
is outstanding, the Transferor will furnish, or cause the Servicer
to furnish, to each Representative, by first-class mail as soon as
practicable (i) all documents concerning the Receivables, the
Collateral Certificate or the Notes distributed by the Transferor
or the Servicer (under each of the PSA and TSA) to the Noteholders,
or filed with the Commission pursuant to the Exchange Act,
(ii) any order of the Commission under the Act or the Exchange
Act applicable to the Issuer, to WFNMT, or to the Transferor, or
pursuant to a “no-action” letter obtained from the
staff of the Commission by the Transferor and affecting the Issuer,
WFNMT, or the Transferor and (iii) from time to time, such
other information concerning the Issuer or WFNMT as the
Representatives may reasonably request.
(h) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is
terminated for any reason, except a default by the Underwriters
hereunder, the Transferor will pay all expenses incident to the
performance of its obligations under this Agreement (except as
otherwise agreed in writing between the Transferor and the
Representatives) and will reimburse the Underwriters for any
expenses incurred by them in connection with qualification of the
Underwritten Notes for sale and determination of the eligibility of
the Underwritten Notes for investment under the laws of such
jurisdictions as the Representatives designate, and for any fees
charged by investment rating agencies for the rating of the Notes
and for any filing fee of the Financial Industry Regulatory
Authority, Inc. relating to the Notes. The Transferor will bear its
own fees and disbursements of counsel (which will include all legal
fees relating to Blue Sky matters). The fees and disbursements of
counsel to the Underwriters will be allocated between the
Underwriters, on the one hand, and the Transferor, on the other
hand, as may be separately agreed to by the Representatives and the
Transferor or, in the absence of any such agreement, will be borne
by the Underwriters.
13
(i) To the extent, if any, that any
of the ratings provided with respect to the Notes by any Rating
Agency are conditional upon the furnishing of documents or the
taking of any other actions by the Transferor, the Transferor shall
furnish such documents and take any such other actions as are
reasonably necessary to satisfy such condition.
(j) For so long as any of the
Underwritten Notes remain outstanding, the Bank will comply with
its obligations under paragraph 5 of the TALF Certification (as
defined in subsection 6(s)) (unless waived by the FRBNY)
(i) to notify the FRBNY and all registered holders of the
Underwritten Notes if certain statements were not correct when made
or have ceased to be correct no later than 9:00 a.m. New York City
time on the fourth business day following such determination, and
(ii) to issue a press release regarding such determination no
later than 9:00 a.m. New York City time on the fourth business day
following such determination, and will provide each Underwriter
with a copy of such notification.
6. Conditions of the Obligations
of the Underwriters . The obligation of the Underwriters to
purchase and pay for the Underwritten Notes will be subject to the
accuracy of the representations and warranties by the Transferor
and the Bank herein, to the accuracy of the statements of officers
of the 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 Representatives shall have
received letters, dated as of the date of the Preliminary
Prospectus and as of the Closing Date and addressed to the
Underwriters, from Deloitte & Touche LLP, confirming that
they are independent public accountants within the meaning of the
Act and the applicable published Rules and Regulations thereunder,
substantially in the form heretofore agreed to and otherwise in
form and in substance satisfactory to the Representatives and their
counsel.
(b) The Representatives shall have
received (i) fully executed copies of this Agreement, the
Indenture and the other Program Documents duly executed and
delivered by the parties thereto and (ii) evidence
satisfactory to the Representatives that the Purchased Notes
Transaction has been consummated.
(c) The Preliminary Prospectus and
the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of
this Agreement; and, prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Transferor or the
Representatives, shall be contemplated by the Commission. The
Registration Statement, the Preliminary Prospectus and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act.
(d) Subsequent to the execution and
delivery of this Agreement none of the following shall have
occurred: (i) any change, or any development involving a
prospective change, in or affecting particularly WFNMT, the Issuer,
the business or properties
14
of the Transferor or the Bank which,
in the judgment of the Underwriters make it impractical or
inadvisable to proceed with the completion and sale of and payment
for the Underwritten Notes, (ii) trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended,
limited or minimum prices shall have been established on either of
such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction; (iii) a banking moratorium shall have been
declared by Federal or state authorities; (iv) any material
disruption in securities settlement or clearance services in the
United States, the direct effect of which on any party involved in
the settlement or clearance of the Notes would make it impractical
to proceed with the completion and sale of and payment for the
Notes; or (v) the United States shall have become engaged in
hostilities, there shall have been an escalation of hostilities
involving the United States or there shall have been a declaration
of a national emergency or war by the United States or any other
substantial national or international calamity or emergency which,
in the judgment of the Underwriters, the effect of such
hostilities, escalation, declaration or other calamity or emergency
makes it impractical or inadvisable to proceed with the completion
and sale of and payment for the Underwritten Notes.
(e) The Representatives shall have
received an opinion, dated the Closing Date, of Hugh M. Hayden,
General Counsel of the Bank, as counsel for the Transferor and the
Bank, satisfactory in form and substance to the Representatives and
their counsel to the effect that:
(i) The Bank is a national banking
association in good standing and validly existing under the laws of
the United States of America; and each of the Transferor and the
Bank (each collectively referred to in this subsection 6(e) as a
“ WFN Entity ”) is duly qualified to do business
and is in good standing under the laws of each jurisdiction in
which it is required to qualify, except where failure to so qualify
would not have a material adverse effect on such WFN Entity, and
has full power and authority to own its properties, to conduct its
business as described in the Registration Statement, the
Preliminary Prospectus and the Prospectus, to enter into and
perform its obligations under the Program Documents to which it is
a party, and to consummate the transactions contemplated
thereby.
(ii) Each of the Program Documents
to which the Bank is a party and this Agreement has been duly
authorized by the Bank.
(iii) None of the execution and
delivery of the Program Documents and this Agreement by either WFN
Entity that is party thereto, the consummation of any of the
transactions contemplated therein, the fulfillment of the terms
thereof, or the consummation of the Purchased Notes Transaction
violates, results in a material breach of or constitutes a default
under (A) any Requirements of Law under the laws of the states
of New York and Illinois and the federal law of the United States
of America (collectively, the “ Included Laws ”)
applicable to such WFN Entity, (B) any term or provision of
any order known to such counsel to be currently applicable to such
WFN Entity of any court, regulatory body, administrative
agency
15
or governmental body having
jurisdiction over such WFN Entity or (C) any term or provision
of any indenture or other agreement or instrument known to such
counsel to which such WFN Entity is a party or by which either of
them or any of their properties are bound, except, in the case of
clauses (B) and (C), to the extent such violation, breach or
default would not have a material adverse effect on the Notes, the
Collateral Certificate, or any WFN Entity.
(iv) Except as otherwise disclosed
in the Preliminary Prospectus, the Prospectus or the Registration
Statement, there is no pending or, to the best of such
counsel’s knowledge, threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator with respect to WFNMT, the Issuer, the Collateral
Certificate, the Notes, any of the Program Documents or this
Agreement or any of the transactions contemplated therein, or the
Purchased Notes Transaction, with respect to a WFN Entity which, if
adversely determined, would have a material adverse effect on the
Notes, the Collateral Certificate, WFNMT or the Issuer or upon the
ability of any WFN Entity to perform its obligations under the
Program Documents or this Agreement.
(v) The statements included in the
Registration Statement, the Preliminary Prospectus and the
Prospectus describing statutes under the Included Laws, legal
proceedings, contracts and other documents relating to the WFN
Entities, the Accounts, the Receivables, the business of the Bank,
the Transferor, WFNMT and the Issuer are accurate in all material
respects.
(f) The Representatives shall have
received an opinion, dated the Closing Date, of Mayer Brown LLP,
special counsel to the Transferor and the Bank, satisfactory in
form and substance to the Representatives and their counsel to the
effect that:
(i) The Transferor is a limited
liability company in good standing, duly organized and validly
existing under the laws of the State of Delaware and has full
limited liability company power and authority to execute, deliver
and perform all of its obligations under the Program Documents to
which it is a party and to consummate the transactions contemplated
thereby, and to consummate the Purchased Notes Transaction; the
execution and delivery by the Transferor of this Agreement and the
Program Documents to which the Transferor is a party have been duly
authorized by all necessary action on the part of the Transferor;
and each
