EXHIBIT 1.1
EXECUTION VERSION
FIRST NATIONAL MASTER NOTE TRUST
$415,000,000 CLASS A FLOATING RATE ASSET BACKED
NOTES, SERIES 2003-1
$38,750,000 CLASS B 2.76% ASSET BACKED
NOTES, SERIES 2003-1
$46,250,000 CLASS C FLOATING RATE ASSET BACKED
NOTES, SERIES 2003-1
UNDERWRITING AGREEMENT
March 13, 2003
Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
As Representative of the Underwriters set forth herein
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
As Representative of the Underwriters set forth herein
Ladies and Gentlemen:
Introductory. First National Funding LLC ("FNF LLC" or the "Transferor"), a
limited liability company formed under the laws of the State of Nebraska,
proposes to cause First National Master Note Trust (the "Issuer") to issue and
sell $415,000,000 principal amount of Class A Floating Rate Asset Backed Notes,
Series 2003-1 (the "Class A Notes"), $38,750,000 principal amount of Class B
2.76% Asset Backed Notes, Series 2003-1 (the "Class B Notes") and $46,250,000
principal amount of Class C Floating Rate Asset Backed Notes, Series 2003-1 (the
"Class C Notes", and together with the Class A Notes and the Class B Notes, the
"Notes") to the Underwriters (as defined hereinafter) for whom you are acting as
Representatives (the "Representatives").
The Issuer is a Delaware statutory business trust formed pursuant to (a) a
Trust Agreement, dated as of October 16, 2002 (the "Trust Agreement"), between
the Transferor and Wilmington Trust Company ("WTC"), as owner trustee (the
"Owner Trustee") and (b) the filing of a certificate of trust with the Secretary
of State of Delaware on October 16, 2002. The Notes will be issued pursuant to a
Master Indenture, dated as of October 24, 2002 (the "Master Indenture"), between
the Issuer and The Bank of New York ("BONY"), as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series 0000-0 Xxxxxxxxx Supplement
with respect
to the Notes to be dated as of March 20, 2003 (the "Indenture Supplement," and
together with the Master Indenture, the "Indenture").
Initially, the primary asset of the Issuer will be a certificate (the
"Collateral Certificate") representing a beneficial interest in the assets held
in the First Bankcard Master Credit Card Trust (the "Certificate Trust"), issued
pursuant to the Second Amended and Restated Pooling and Servicing Agreement,
dated as of October 24, 2002 (as amended and supplemented, the "Pooling and
Servicing Agreement"), among FNF LLC, First National Bank of Omaha, a national
banking association (the "Bank"), as servicer (the "Servicer") and BONY, as
trustee (the "Certificate Trust Trustee"), and the Collateral Series Supplement,
dated as of October 24, 2002, to the Pooling and Servicing Agreement (the
"Collateral Supplement" and together with the Pooling and Servicing Agreement,
the "Pooling and Servicing Agreement"). The assets of the Certificate Trust
include, among other things, certain amounts due (the "Receivables") on a
portfolio of Visa(R) and MasterCard(R) revolving credit card accounts owned by
the Bank (the "Accounts").
The Receivables are transferred to the Certificate Trust pursuant to the
Pooling and Servicing Agreement. The Receivables transferred to the Certificate
Trust by the Transferor are acquired by the Transferor from the Bank pursuant to
a Receivables Purchase Agreement, dated as of October 24, 2002 (the "Receivables
Purchase Agreement"), between the Transferor and the Bank. The Collateral
Certificate was transferred by the Transferor to the Issuer pursuant to the
Transfer and Servicing Agreement, dated as of October 24, 2002 (the "Transfer
and Servicing Agreement"), among the Transferor, the Bank, as Servicer, and the
Issuer.
The Bank has agreed to provide notices and perform on behalf of the Issuer
certain other administrative obligations required by the Transfer and Servicing
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
October 24, 2002 (the "Administration Agreement"), between the Bank, as
administrator (in such capacity, the "Administrator"), and the Issuer. The
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and the
Administration Agreement are referred to herein, collectively, as the
"Transaction 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 Transferor and the Bank hereby agree, severally and not jointly, with
the underwriters for the Class A Notes listed on Schedule A hereto (the "Class A
Underwriters") the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters") and the underwriters for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriters" and together with the
Class A Underwriters and the Class B Underwriters, the "Underwriters") as
follows:
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:
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The Transferor is duly organized, validly existing and in good standing as a
limited liability company under the laws of the State of Nebraska, 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 (as hereinafter defined) and Prospectus (as hereinafter
defined), and to execute, deliver and perform its obligations under this
Agreement, the Transfer and Servicing Agreement, the Pooling and Servicing
Agreement, the Receivables Purchase Agreement and the Trust Agreement and to
authorize the issuance of the Notes and the Collateral Certificate.
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
and the Prospectus, and to own the Accounts and to execute, deliver and perform
its obligations under this Agreement, the Receivables Purchase Agreement, the
Transfer and Servicing Agreement, the Pooling and Servicing Agreement and the
Administration Agreement.
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.
This Agreement has been duly authorized, executed and delivered by the
Transferor and the Bank.
Each of the Transaction Documents has been, or on or before the Closing Date
will be, executed and delivered by the Transferor and/or the Bank, as
applicable, and when executed and delivered by the other parties thereto, will
constitute a legal, valid and binding agreement of the Transferor and/or the
Bank, as applicable, enforceable against the Transferor and/or the Bank, as
applicable, in accordance with its terms, except, in each case, to the extent
that (i) the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, receivership or other similar laws now or hereafter
in effect relating to creditors' or other obligees' rights generally or the
rights of creditors or other obligees of institutions insured by the FDIC, (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) certain remedial
provisions of the Indenture may be unenforceable in whole or in part under the
UCC, but the inclusion of such provisions does not render the other provisions
of the Indenture invalid and notwithstanding that such provisions may be
unenforceable in whole or in part, the Indenture Trustee, on behalf of the
Noteholders, will be able to enforce the remedies of a secured party under the
UCC.
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
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with their terms, subject to (A) the effect of bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation and other similar laws
affecting creditors' rights generally, (B) the effect of general principles of
equity including (without limitation) concepts of materiality, reasonableness,
good faith, fair dealing (regardless of whether considered and applied in a
proceeding in equity or at law), and also to the possible unavailability of
specific performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against liability or
requiring contribution from a party for liability where such indemnification or
contribution is contrary to public policy. The Notes will be in the form
contemplated by the Indenture, and the Notes and the Indenture will conform to
the descriptions thereof contained in the Prospectus and the Registration
Statement, as amended or supplemented.
The Collateral Certificate was issued pursuant to the terms of the Pooling and
Servicing Agreement and is validly issued and outstanding and constitutes the
legal, valid and binding obligation of the Certificate Trust, enforceable
against the Certificate Trust 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, (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
Collateral Certificate is in the form contemplated by the Pooling and Servicing
Agreement, and the Collateral Certificate and the Pooling and Servicing
Agreement conform to the descriptions thereof contained in the Prospectus and
the Registration Statement, as amended or supplemented.
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 Issuer, the Certificate Trust, the Transferor or the Bank.
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) breach or
violate any provision of the organizational documents applicable to the
Transferor or the Bank, (iii) violate any judgment, order or decree of any
court, arbitrator, administrative agency or other governmental authority
applicable to the Transferor or the Bank, (iv) 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, (v) result in the acceleration of any obligation of
the Transferor or the Bank, or (vi) result in the creation or imposition of any
Lien
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upon any of its property or assets, except for those encumbrances created under
the Transaction Documents.
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 the consummation of the
transactions contemplated hereunder and thereunder, or the fulfillment of the
terms hereof and thereof have been or will have been obtained on or before the
Closing Date.
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.
The Master 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. The Indenture Supplement is not required to be qualified under the
TIA.
The representations and warranties made by the Transferor in the Transfer and
Servicing Agreement, the Pooling and Servicing Agreement, 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 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 or later date, such
representation or warranty is true and correct at and as of such earlier or
later date.
The representations and warranties made by the Bank in the Receivables Purchase
Agreement, and in its capacity as Servicer and Administrator, in the Transfer
and Servicing Agreement, the Pooling and Servicing Agreement 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 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 or later date, such representation or
warranty is true and correct at and as of such earlier or later date.
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 Pooling and Servicing Agreement and the
Transfer and Servicing Agreement, and agrees to take all action required by the
Pooling and Servicing Agreement and the Transfer and Servicing Agreement in
order to maintain the security interest in the Receivables and the Collateral
Certificate granted pursuant to the Pooling and Servicing Agreement, the
Transfer and Servicing Agreement and the Indenture, as applicable.
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 Pooling and Servicing Agreement (and the predecessor
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agreement) or the Receivables Purchase Agreement, as applicable, and agrees to
take all action required by the Pooling and Servicing Agreement or the
Receivables Purchase Agreement, as applicable, in order to maintain the security
interests in the Receivables granted pursuant to the Receivables Purchase
Agreement, the Pooling and Servicing Agreement and the Indenture, as applicable.
A registration statement on Form S-3 (Nos. 000-00000-00 and 333-86574-01),
including a form of prospectus and such amendments thereto as may have been
filed prior to the date hereof, relating to the Notes and the offering thereof
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with, and has been declared effective by, the Commission.
If any post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this Agreement, the
most recent such amendment has been declared effective by the Commission. For
purposes of this Agreement, "Effective Time" means the date and time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective Date"
means the date of the Effective Time. Such registration statement, as amended at
the Effective Time, is hereinafter referred to as the "Registration Statement."
The Transferor proposes to file with the Commission pursuant to Rule 424(b)
("Rule 424(b)") under the Act a supplement (the "Prospectus Supplement") to the
prospectus included in the Registration Statement (such prospectus, in the form
it appears in the Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b), is hereinafter referred
to as the "Base Prospectus") relating to the Notes and the method of
distribution thereof. The Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, are hereinafter
referred to as the "Prospectus".
On the Effective Date, the Registration Statement did 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 include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the date of
this Agreement, the Registration Statement and the Prospectus conform, and at
the time of filing of the Prospectus pursuant to Rule 424(b) the Registration
Statement and the Prospectus will conform, in all material respects with the
requirements of the Act and the Rules and Regulations and the TIA and the rules
and regulations thereunder and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
statements in or omissions from either of such documents based upon written
information furnished to the Transferor or the Bank by the Underwriters
specifically for use therein. Each of the Transferor and the Bank hereby
acknowledges that (i) the only information provided by the Class A Underwriters
for inclusion in the Registration Statement and the Prospectus is set forth on
the cover page of the Prospectus Supplement in the table under the heading
"Class A Notes" and on the line across from "Price to public," in the 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 on the line across from "Class A Notes", in the table following the
second paragraph under the heading "Underwriting" in the Prospectus Supplement
in the column labeled "Class A Notes" and in the
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final paragraph under the heading "Underwriting" in the Prospectus Supplement
(the "Class A Underwriters' Information"), (ii) the only information provided by
the Class B Underwriters for inclusion in the Registration Statement and the
Prospectus is set forth on the cover page of the Prospectus Supplement in the
table under the heading "Class B Notes" and on the line across from "Price to
public," in the table listing the Class B Underwriters and the Principal Amount
of Class B Notes under the heading "Underwriting" in the Prospectus Supplement,
in the table following the third paragraph under the heading "Underwriting" in
the Prospectus Supplement on the line across from "Class B Notes", in the table
following the second 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") and (iii) the only information provided by
the Class C 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 C Notes" and on the line across from "Price to
public," in the table listing the Class C Underwriters and the Principal Amount
of Class C Notes under the heading "Underwriting" in the Prospectus Supplement,
in the table following the third paragraph under the heading "Underwriting" in
the Prospectus Supplement on the line across from "Class C Notes", in the table
following the second paragraph under the heading "Underwriting" in the
Prospectus Supplement in the column labeled "Class C Notes" and in the final
paragraph under the heading "Underwriting" in the Prospectus Supplement (the
"Class C Underwriters' Information").
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 the condition, financial or otherwise,
or in the earnings, business or operations, of the Bank or the Transferor.
The computer tape of the Receivables to be created as of March 6, 2003, and made
available to the Representatives by the Servicer, will be complete and accurate
in all material respects as of the date thereof.
There are no actions, proceedings of investigations pending or, to the best of
its knowledge, threatened against or affecting the Transferor or the Bank (or
any basis therefor known to the Transferor or the Bank) (i) asserting the
invalidity of any of the Transaction Documents, (ii) seeking to prevent the
issuance of the Notes or the consummation by the Transferor or the Bank of any
of the transactions contemplated by the Transaction Documents, or (iii) which,
individually or in the aggregate, if adversely decided, would materially and
adversely affect the business, financial condition or results of operations of
the Transferor, the Issuer, the Certificate Trust or the Bank or of the
Transferor's or the Bank's ability to consummate the transactions contemplated
by the Transaction Documents.
None of the Issuer, the Certificate Trust, the Transferor, the Bank, any
Affiliates thereof or any of their Agents has taken any action that would
require registration of the Issuer, the Certificate Trust, the Transferor or the
Bank under the Investment Company Act of 1940, nor will the Issuer, the
Certificate Trust, the Transferor, the Bank, any Affiliates thereof or any of
their Agents act, nor have they authorized or will they authorize any person to
act, in such a manner.
It is not necessary to qualify the Pooling and Servicing Agreement or the
Collateral Series Supplement under the Trust Indenture Act of 1939.
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Purchase, Sale, Payment and Delivery of the Notes.
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 99.775% of the principal
amount thereof, $415,000,000 aggregate principal amount of the Class A Notes,
each Class A Underwriter to purchase the amounts shown on Schedule A hereto.
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 99.71022% of the principal
amount thereof, $38,750,000 aggregate principal amount of the Class B Notes,
each Class B Underwriter to purchase the amounts shown on Schedule A hereto.
On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Transferor agrees
to sell to the Class C Underwriters, and the Class C Underwriters agree to
purchase from the Transferor, at a purchase price of 99.70% of the principal
amount thereof, $46,250,000 aggregate principal amount of the Class C Notes,
each Class C Underwriter to purchase the amounts shown on Schedule A hereto.
The Transferor will cause the Issuer to deliver the Notes to the Underwriters
against payment of the purchase price in immediately available funds, drawn to
the order of the Transferor, at the office of Xxxxx Xxxx LLP, in Omaha, Nebraska
at 10:00 a.m., Chicago time, on March 20, 2003, such time being herein referred
to as the "Closing Date." Each of the Class A Notes, the Class B Notes and the
Class C Notes so to be delivered shall be represented by one or more definitive
notes registered in the name of Cede & Co., as nominee for The Depository Trust
Company. The Notes will be available for inspection, checking and packaging by
the Underwriters at the office at which the Notes are to be delivered in Omaha,
Nebraska no later than 4:00 p.m., Chicago time, on the business day prior to the
Closing Date.
Offering by Underwriters. It is understood that after the Effective Date, the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
Certain Agreements of the Transferor. The Transferor agrees with the
Underwriters that:
Immediately following the execution of this Agreement, the Transferor will
prepare a Prospectus Supplement setting forth the amount of Notes covered
thereby and the terms thereof not otherwise specified in the Base Prospectus,
the price at which such Notes are to be purchased by the Underwriters, the
initial public offering price, the selling concessions and allowances, and such
other information as the Transferor deems appropriate. The Transferor will
transmit the Prospectus, including such Prospectus Supplement, to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in filing
with the Commission pursuant to Rule 424(b). The Transferor will not file any
amendment of the Registration Statement with respect to the Notes or supplement
to the Prospectus unless a copy has been furnished to the Representatives for
their review a reasonable time prior to the proposed filing thereof or to which
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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 Registration Statement or Prospectus, (ii) any request by
the Commission for any amendment or supplementation of the Registration
Statement or the Prospectus or for any additional information, (iii) the receipt
by the Transferor of any notification with respect to the suspension of
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes and (iv) the institution by the
Commission of any stop order proceeding in respect of 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.
If at any time when a prospectus relating to the Notes is required to be
delivered under the Act, any event occurs as a result of which the Prospectus,
as then amended or supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Transferor promptly will notify the Representatives 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 7.
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.
The Transferor will furnish to the Representatives and their counsel, without
charge, 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
Representatives reasonably request. The Transferor will pay the expenses of
printing or other production of all documents relating to the offering of the
Notes.
The Transferor will endeavor to qualify the 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 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 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. The Transferor will promptly advise
the Underwriters of the receipt by the Transferor of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for such purpose.
The Transferor will, and will cause the Certificate Trust and Issuer to, assist
the Representatives in making arrangements with DTC, Euroclear and Clearstream,
Luxembourg concerning the issue of the Notes, arranging with such clearing
agency to permit the Notes to be eligible for clearance and settlement through
such clearing agency and related matters.
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So long as any Note is outstanding, the Transferor will furnish, or cause the
Servicer to furnish, to the Representatives copies of each certificate and the
annual statements of compliance delivered to (a) the Certificate Trustee and
each Rating Agency pursuant to Sections 3.04(b) and 3.05 of the Pooling and
Servicing Agreement and independent certified public accountant's servicing
reports furnished to the Certificate Trustee and each Rating Agency pursuant to
Sections 3.06(a) and (b) of the Pooling and Servicing Agreement, (b) the Owner
Trustee, the Indenture Trustee and each Rating Agency pursuant to Section 3.05
of the Transfer and Servicing Agreement and independent certified public
accountant's servicing reports furnished to the Indenture Trustee and the Rating
Agencies pursuant to Sections 3.06(a) and (b) of the Transfer and Servicing
Agreement, and (c) the Series 2003-1 Noteholders pursuant to Sections 5.03(a)
and (d) of the Indenture Supplement, by first class mail promptly after such
certificates, statements and reports are furnished to the Certificate Trustee,
the Owner Trustee, the Indenture Trustee, the Series 2003-1 Noteholders or the
Rating Agencies, as the case may be.
So long as any Note is outstanding, the Transferor will furnish, or cause the
Servicer to furnish, to the Representatives, 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 Pooling and Servicing Agreement and Transfer and Servicing
Agreement) to the Certificate Trustee, the Owner Trustee, the Indenture Trustee
or the Noteholders, or filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) any order of the
Commission under the Act or the Exchange Act applicable to the Issuer, to the
Certificate Trust, 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, the Certificate Trust, or the Transferor and (iii) from time to time,
such other information concerning the Issuer or the Certificate Trust as the
Representatives may reasonably request.
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 necessary to satisfy such
condition.
In connection with any disposition of the Definitive Notes pursuant to a
transaction made in compliance with all applicable transfer restrictions
contemplated herein and in the Indenture, the Transferor will cause the Issuer
to reissue notes evidencing such Definitive Notes as required pursuant to the
Indenture.
Until 30 days following the Closing Date, none of the Transferor or any trust or
other entity originated, directly or indirectly, by the Transferor (including,
without limitation, the Certificate Trust or the Issuer) will, without the prior
written consent of the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Notes).
After the Certificate Trust Termination Date, the Transferor shall cause its
computer records relating to the Receivables to be marked in accordance with
Section 2.01(c) of the Transfer and Servicing Agreement to show the Issuer's
absolute ownership of the Receivables, and from and after the Certificate Trust
Termination Date the Transferor shall not take any action inconsistent with the
Issuer's ownership of the Receivables, other than as permitted by the Transfer
and Servicing Agreement.
-10-
The Transferor will enter into or has entered into the Pooling and Servicing
Agreement, the Transfer and Servicing Agreement and other instruments to which
this Agreement and the Pooling and Servicing Agreement and the Transfer and
Servicing Agreement contemplate it will be a party on or prior to the Closing
Date. The Transferor will cause the Certificate Trust and the Issuer to enter
into any instruments to which this Agreement or any Transaction Document
contemplates that either will be a party on or prior to the Closing Date.
Certain Agreements of the Bank.
Except as disclosed on Schedule B hereto, until 30 days following the Closing
Date, none of the Bank or any trust or other entity originated, directly or
indirectly, by the Bank (including, without limitation, the Transferor) will,
without the prior written consent of the Representatives, which shall not be
unreasonably withheld, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any asset-backed securities
(other than the Notes).
The Bank will enter into the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Transfer and Servicing Agreement and other instruments
to which this Agreement and the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, and the Transfer and Servicing Agreement contemplate it
will be a party on or prior to the Closing Date.
Conditions of the Obligations of the Underwriters. The obligation of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy
of the representations and warranties by the Transferor and the Bank herein, to
the accuracy of the statements of officers of Transferor and the Bank made
pursuant to the provisions hereof, to the performance by the Transferor and the
Bank of their respective obligations hereunder and to the following additional
conditions precedent:
On or prior to the date of this Agreement, the Representatives shall have
received an agreed upon procedures letter of Deloitte & Touche LLP, dated on or
prior to the date of this Agreement, confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder, which letter shall be substantially in the form
heretofore agreed to and otherwise in form and in substance satisfactory to the
Representatives and their counsel.
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.
Subsequent to the execution and delivery of this Agreement none of the following
shall have occurred: (i) 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 or any
suspension of trading of any securities of the Certificate Trust, the
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Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of
their Affiliates on any exchange or in the over-the-counter market; (ii) a
banking moratorium shall have been declared by Federal or state authorities;
(iii) any downgrading in the rating of any debt securities of the Certificate
Trust, the Issuer, the Bank, the Transferor, First National of Nebraska, Inc. or
any of their Affiliates by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (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 Representatives, the effect
of such hostilities, escalation, declaration or other calamity or emergency
makes it impractical or inadvisable to proceed with the completion and sale of
and payment for the Notes; and (v) any material adverse change in the financial
markets for asset-backed securities in the United States if, in the
Representatives' judgment, the effect of which is to make it impractical to
proceed with completion of the sale of and payment for the Notes.
The Representatives shall have received an opinion or opinions, dated the
Closing Date, of Xxxxx Xxxx LLP, special counsel to the Transferor and the Bank,
satisfactory in form and substance to the Representatives and their counsel to
the effect that:
The Transferor is a limited liability company in good standing, duly organized
and validly existing under the laws of the State of Nebraska; 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 referred to in this subsection (d) as a "FNBO
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.
Each of the Transaction Documents and this Agreement has been duly authorized,
executed and delivered by each FNBO Entity that is a party thereto.
Neither the execution and delivery of the Transaction Documents and this
Agreement by either FNBO 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 FNBO
Entity, (B) any term or provision of any order known to such firm to be
currently applicable to such FNBO Entity of any court, regulatory body,
administrative agency or governmental body having jurisdiction over such FNBO
Entity or (C) any term or provision of any indenture or other agreement or
instrument known to such firm to which such FNBO Entity is a party or by which
either of them or any of their properties are bound and, as to FNBO, which has
been identified to us as material to the business or operations of FNBO.
-12-
Except as otherwise disclosed in the Prospectus (and any supplement thereto) or
the Registration Statement, there is no pending or, to the best of such firm's
knowledge, threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator with respect to the
Certificate Trust, the Issuer, the Collateral Certificate, the Notes or any of
the Transaction Documents or any of the transactions contemplated therein with
respect to an FNBO 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, the Certificate Trust or the Issuer or upon
the ability of either FNBO Entity to perform its obligations under the
Transaction Documents.
Each of the Transaction Documents to which an FNBO Entity is a party constitutes
the legal, valid and binding agreement of such Person under the laws of
Nebraska, enforceable against each such Person in accordance with its terms,
subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting creditors' rights
generally and the rights of creditors of national banking associations
(including, without limitation, the determination pursuant to 12 U.S.C.
ss.1821(e) of any liability for the disaffirmance or repudiation of any
contract), (B) the effect of general principles of equity including (without
limitation) concepts of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability of specific performance or
injunctive relief, (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 and (D) certain remedial provisions of the Indenture may be
unenforceable in whole or in part under the UCC, but the inclusion of such
provisions does not render the other provisions of the Indenture invalid and
notwithstanding that such provisions may be unenforceable in whole or in part,
the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the
remedies of a secured party under the UCC.
This Agreement constitutes the legal, valid and binding obligation of the
Transferor and the Bank under the laws of the State of New York, enforceable
against the Transferor and the Bank in accordance with its terms, subject to (A)
the effect of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights generally and the
rights of creditors of national banking associations (including, without
limitation, the determination pursuant to 12 U.S.C. 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.
The Notes are in due and proper form and when executed, authenticated and
delivered as specified in the Indenture, and when delivered against payment of
the consideration specified in this Agreement, they will be validly issued and
outstanding, will constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms and will be
entitled to the benefits of the Indenture, subject to (A) the effect of
bankruptcy,
-13-
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, (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 and (D)
certain remedial provisions of the Indenture may be unenforceable in whole or in
part under the UCC, but the inclusion of such provisions does not render the
other provisions of the Indenture invalid and notwithstanding that such
provisions may be unenforceable in whole or in part, the Indenture Trustee, on
behalf of the Noteholders, will be able to enforce the remedies of a secured
party under the UCC.
The Collateral Certificate is in due and proper form, validly issued and
outstanding and constitutes the legal, valid and binding obligation of the
Certificate Trust, enforceable against the Certificate Trust in accordance with
its terms and is entitled to the benefits of the Pooling and Servicing
Agreement, 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 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.
The statements in the Base Prospectus under the headings "Risk Factors--If a
conservator or receiver were appointed for First National Bank of Omaha, or if
we become a debtor in a bankruptcy case, 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.
The Transaction Documents (other than Trust Agreement and Administration
Agreement), the Collateral Certificate and the Notes conform in all material
respects to the descriptions thereof contained in the Prospectus.
The Master 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 Indenture Supplement is not required to be qualified under the TIA. The
Issuer is not now, and immediately following the
-14-
issuance of the Notes pursuant to the Indenture will not be, required to be
registered under the Investment Company Act of 1940, as amended.
The Pooling and Servicing Agreement need not be qualified under the TIA. The
Certificate Trust 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.
Subject to the discussion in the Base Prospectus under the heading "Federal
Income Tax Consequences", the Notes will properly be characterized as
indebtedness and neither the Certificate Trust nor the Issuer will be treated as
an association (or publicly traded partnership) taxable as a corporation, for
U.S. federal income tax purposes.
Assuming that the outstanding securities identified in Part A of Annex I hereto
would be characterized as indebtedness or a partnership interest for such
purposes immediately prior to the issuance of the Notes, the issuance of the
Notes will not adversely affect the federal income tax characterization of any
outstanding Investor Certificates for each series identified in Annex I hereto
or in the case of the outstanding securities identified in Part B of Annex I
hereto otherwise constitute an event in which a gain or loss would be recognized
by the holders thereof.
Each of the Indenture and the Administration Agreement constitutes the legal,
valid and binding obligation of the Issuer under the laws of the State of
Nebraska, 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, (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 and (D) certain remedial provisions of
the Indenture may be unenforceable in whole or in part under the UCC, but the
inclusion of such provisions does not render the other provisions of the
Indenture invalid and notwithstanding that such provisions may be unenforceable
in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will
be able to enforce the remedies of a secured party under the UCC.
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 (x) and (xi), such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus.
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 Bank to Transferor under the Receivables Purchase Agreement and (b) under the
Rule, the FDIC could not, by exercise of its authority to disaffirm or repudiate
contracts
-15-
under 12 U.S.C. Section 1821(e), reclaim or recover the Receivables or the
proceeds thereof from Transferor, the Certificate Trust or the Issuer or
recharacterize the Receivables or the proceeds thereof as property of Bank or
the receivership for Bank.
If the FDIC were to be appointed as a conservator or receiver for Bank pursuant
to Section 11(c) of FDIA a court having jurisdiction over the conservatorship or
receivership would, in a properly presented case, (a) hold the transfers of
Receivables by the Bank to the Transferor under the Receivables Purchase
Agreement to be a true conveyance or a capital contribution 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.
Certain matters regarding and related to the limited liability company agreement
of the Transferor.
Certain matters relating to the characterization of the Receivables under the
UCC and to the transfer of the Receivables from the Transferor to the
Certificate Trust under the Pooling and Servicing Agreement.
Certain matters relating to the characterization of the Collateral Certificate
under the UCC and to the transfer of the Collateral Certificate from the
Transferor to the Issuer under the Transfer and Servicing Agreement.
Certain matters with respect to the attachment and perfection of the ownership
interests and security interests granted under the Transaction Documents in the
Receivables, the Collateral Certificate and the proceeds thereof, including that
such assets are not subject to other Liens of record.
The Indenture Trustee is the registered holder of the Collateral Certificate,
subject to no Liens of record.
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 paragraphs (x) and (xi) 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 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).
-16-
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, State of Nebraska 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, on
certificates of responsible officers of the Issuer, the Bank, the
Transferor and public officials.
The Representatives shall have received from Mayer, Brown, Xxxx & Maw, special
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to such matters relating to this transaction as the Representatives
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.
The Representatives shall have received a certificate from each of the
Transferor and the Bank, dated the Closing Date, of a Treasurer, Vice President
or more senior officer of the Transferor or the Bank, as the case may be, in
which such officer, to the best of his/her knowledge after reasonable
investigation, shall state that (u) the representations and warranties of the
Transferor and the Bank, as the case may be, in this Agreement are true and
correct on and as of the Closing Date, (v) the Transferor or the Bank, as the
case may be, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing Date,
(w) the representations and warranties of the Transferor or the Bank, as the
case may be, contained in this Agreement and the 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.
The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
counsel to the Owner Trustee, dated the Closing Date, satisfactory in form and
substance to the Representative and its counsel, to the effect that:
The Owner Trustee is duly incorporated and validly existing as a banking
corporation in good standing under the laws of the State of Delaware.
The Owner Trustee has the power and authority to execute, deliver and perform
the Trust Agreement and to consummate the transactions contemplated thereby.
The Trust Agreement has been duly authorized, executed and delivered by the
Owner Trustee and constitutes a legal, valid and binding obligation of the Owner
Trustee, enforceable against the Owner Trustee in accordance with its terms.
-17-
Neither the execution, delivery or performance by the Owner Trustee of the Trust
Agreement, nor the consummation of the transactions by the Owner Trustee,
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 the Owner Trustee (other
than the filing of the certificate of trust with the Delaware Secretary of
State, which certificate of trust has been duly filed).
Neither the execution, delivery and performance, by the Owner Trustee, of the
Trust Agreement, nor the consummation of the transactions by the Owner Trustee,
is in violation of the charter or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Delaware or of the United States
of America governing trust powers of the Owner Trustee 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 the Owner Trustee.
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.
The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & 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:
The Issuer has been duly formed and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del. C. 3801 et seq.
(referred to in this subsection (h) as the "Trust Act").
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.
Under the Trust Act and the Trust Agreement, the execution and delivery of the
Transfer and Servicing Agreement and the Indenture, 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.
Under the Trust Act and the Trust Agreement, the Issuer has (i) the power and
authority to execute, deliver and perform its obligations under the
Administrative Agreement, the Indenture and the Transfer and Servicing Agreement
(collectively referred to in this subsection (h) as the "Trust Documents") and
the Notes, and (ii) duly authorized, executed and delivered such agreements and
obligations.
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
-18-
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 financing statements with the
Delaware Secretary of State in connection with the Indenture.
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.
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.
Under Section 3808(a) and (b) of the Act, the Issuer may not be terminated or
revoked by the holder of the beneficial interest in the Issuer, and the
dissolution, termination or bankruptcy of the holder of the beneficial interest
in the Issuer shall not result in the termination or dissolution of the Issuer,
except to the extent otherwise provided in the Trust Agreement.
The Owner Trustee is not required to hold legal title to the Trust Estate in
order for the Issuer to qualify as a statutory trust under the Act.
The Representative shall have received an opinion of Xxxxxxx and Xxxxxx, counsel
to the Indenture Trustee dated the Closing Date, satisfactory in form and
substance to the Representatives and their counsel, to the effect that:
The Indenture Trustee is organized and validly existing as a New York banking
corporation in good standing under the laws of the State of New York and is
authorized and qualified to accept the trusts imposed by the Indenture and to
act as Indenture Trustee under the Indenture.
The acknowledgment by the Indenture Trustee of the Transfer and Servicing
Agreement 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.
The Indenture Trustee has duly executed and authenticated the Notes.
The Indenture Trustee is duly authorized and empowered to exercise trust powers
under applicable law and to perform under the Transaction Documents.
None of (x) the execution and authentication of the Notes, (y) the
acknowledgement of the Transfer and Servicing Agreement 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
-19-
regulation of the United States of America or the State of New York governing
the banking or trust powers of the Indenture Trustee or (B) the organizational
documents of the Indenture Trustee.
No approval, authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of New York having
jurisdiction over the banking or trust powers of the Indenture Trustee is
required in connection with the execution and delivery by the Indenture Trustee
of the Indenture or the performance by the Indenture Trustee of the terms of the
Indenture or the acknowledgement of the Transfer and Servicing Agreement.
The Representatives shall have received an opinion of Xxxxxxx and Xxxxxx,
counsel to the Certificate Trust Trustee dated the Closing Date, satisfactory in
form and substance to the Representatives and their counsel, to the effect that:
The Certificate Trustee is organized and validly existing as an New York banking
corporation in good standing under the laws of the State of New York and is
authorized and qualified to accept the trusts imposed by the Pooling and
Servicing Agreement and to act as Certificate Trust Trustee under the Pooling
and Servicing Agreement.
The Certificate Trust Trustee has duly authorized, executed and delivered the
Pooling and Servicing Agreement. Assuming the due authorization, execution and
delivery thereof by the other parties thereto, the Pooling and Servicing
Agreement is the legal, valid and binding obligation of the Certificate Trust
Trustee, enforceable against the Certificate Trust Trustee in accordance with
its terms, subject to bankruptcy and insolvency laws and general principles of
equity.
The Certificate Trust Trustee has duly executed, authenticated and delivered the
Collateral Certificate.
The Certificate Trust Trustee is duly authorized and empowered to exercise trust
powers under applicable law and to perform under the Transaction Documents.
None of (y) the execution and authentication of the Collateral Certificate, and
(z) the execution, delivery and performance of the Pooling and Servicing
Agreement by the Certificate Trust Trustee conflicts with or will result in a
violation of (A) any law or regulation of the United States of America or the
State of New York governing the banking or trust powers of the Certificate Trust
Trustee or (B) the organizational documents of the Certificate Trust Trustee.
No approval, authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of New York having
jurisdiction over the banking or trust powers of the Certificate Trust Trustee
is required in connection with the execution and delivery by the Certificate
Trust Trustee of the Pooling and Servicing Agreement or the performance by the
Certificate Trust Trustee of the terms of the Pooling and Servicing Agreement.
The Representatives shall have received reliance letters addressed to the
Representatives, dated as of the Closing Date, allowing the Representatives to
rely on each opinion of counsel delivered to a Rating Agency, the Indenture
Trustee, the Certificate Trustee, the Transferor or the Bank in connection with
the issuance of the Notes and not addressed to the Representatives.
-20-
The Representatives shall have received evidence satisfactory to the
Representatives that the Class A Notes shall have obtained the following
ratings, Aaa by Xxxxx'x Investors Service, Inc. and AAA by Standard & Poor's
Ratings Services; that the Class B Notes shall have obtained the following
ratings, A2 or higher by Xxxxx'x Investors Service, Inc. and A or higher by
Standard & Poor's Ratings Services and that the Class C Notes shall have
obtained the following ratings: Baa2 or higher by Xxxxx'x Investors Service,
Inc. and BBB or higher by Standard & Poor's Ratings Services.
After the date hereof, there shall not have been any change or any development
involving a prospective change in or affecting the business or properties of the
Bank or the Transferor the effect of which is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to market the Notes as contemplated by the Prospectus.
The issuance of the Notes shall not have resulted in a reduction or withdrawal
by any rating agency of the current rating of any outstanding securities issued
or originated by the Bank, the Certificate Trust or the Transferor. After the
date hereof, there shall not have occurred any downgrading, nor shall any notice
have been given of (i) any intended or potential downgrading or (ii) any review
or possible change that does not indicate an improvement of the rating accorded
any securities of the Bank by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act.
The Transferor will furnish the Representatives with such conformed copies of
the above and such other opinions, certificates, information, letters and
documents as the Representatives or their counsel reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Representatives, this
Agreement and all obligations of the Representatives hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Certificate Trust in writing or by
telephone or telegraph confirmed in writing.
Reimbursement of Expenses. The Transferor agrees to pay all costs and expenses
in connection with the transaction herein contemplated (whether or not
consummated), including, without limiting the generality of the foregoing: all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) incident to the qualification of
the Notes for investment under the laws of such jurisdictions as either
Representative designates, (iii) for any filing fee of the National Association
of Securities Dealers, Inc. relating to the Notes, (iv) incident to the
preparation, printing (including word processing and duplication costs) and
delivery of the preliminary Prospectus ("Preliminary Prospectus") and the
Prospectus (including in each case all exhibits, amendments, attachments and
supplements thereto), (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Preliminary Prospectus, the Prospectus, the Transaction Documents and the
furnishing to the Representatives of copies of the Prospectus as herein
provided, (vi) constituting the fees and disbursements of the Representatives'
counsel and the Bank's and the Transferor's counsel and accountants, (vii)
payable to each Rating Agency in connection with the ratings of
-21-
the Notes and (viii) in connection with the structuring and marketing of the
Notes (and any other miscellaneous expenses in connection therewith); provided
that the Representatives shall not be obligated to pay any expenses of a
defaulting Representative.
Indemnification and Contribution.
The Transferor and the Bank, jointly and severally, will indemnify and hold
harmless each Underwriter, the respective directors, officers, employees and
agents of 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 (the
"Indemnified Parties") 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, the 1934 Act, or other federal or state statutory
law or regulation, at common law 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 other information
provided by the Transferor or the Bank to any holder or prospective purchaser of
the Notes, 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, in light of the circumstances under which they were
made, not misleading, and will reimburse each such Indemnified Party for any
legal or other expenses reasonably incurred by them 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 or the Class C 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
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.
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Transferor, its directors and officers and each Person who controls
the Transferor 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 may become subject, under the Act, the 1934 Act, or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon
-22-
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that, with
respect to each of the Class A Underwriters, the Class B Underwriters and the
Class C 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, the Class B Underwriters' Information or
the Class C 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; provided, however, that in no
case shall any Underwriter be responsible for any amount in excess of the
Underwriter's discounts or commission applicable to the Notes to be sold by such
Underwriter hereunder.
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 (i) 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 and (ii) in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in subsection (a) or (b) above. 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), provided,
however, that if (x) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest which, if such counsel had been retained, would have required such
counsel to withdraw from such representation, (y) the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it that are different from or additional to those available to the
indemnifying party or to other indemnified parties, or (z) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action or proceeding,
then, in each such case, (1) the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or
parties, (2) such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties (provided that, if more than one indemnified party is subject to the
circumstances described in clause (y) , then, to the extent permitted by the
rules of professional conduct applicable to attorneys, all such indemnified
parties shall be represented by one such separate counsel) and (3) all costs and
expenses of each such indemnified party in connection with such action or
proceeding shall be paid by the indemnifying party pursuant to subsection (a) or
(b) above, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
-23-
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
unless, (i) the indemnified party shall have employed separate counsel in
accordance with this sentence or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. 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.
If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Transferor and
the Bank on the one hand and the Underwriters on the other from the offering of
the Notes, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Transferor and the Bank on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations; provided, however, that in no event shall any Underwriter be
responsible in the aggregate for any amount in excess of the Underwriter's
discount or commission applicable to the Notes to be sold by such Underwriter
hereunder. The relative benefits received by the Transferor and the Bank on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) of the Notes received by the Transferor bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Notes. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Transferor or the Bank or the Underwriters. The Transferor, the
Bank and the Representatives agree that is would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take into account the equitable considerations referred
to above. 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). 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.
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 or the 1934 Act and
each director, officer, employee, and agent of an Underwriter and
-24-
each such Person shall have the same rights to contribution as the Underwriter;
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 or the Bank 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 or the 1934 Act and each director, officer,
employee, and agent of Transferor or Bank and each such Person shall have the
same rights to contribution as the Transferor or Bank, as applicable.
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
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 8 and
the respective obligations of the Transferor, the Bank and the Underwriters
pursuant to Section 9 shall remain in effect.
Obligations of the Underwriters. (a) Each Underwriter represents and agrees that
it has not and will not, directly or indirectly, offer, sell or deliver any of
the Notes or distribute the Prospectus or any other offering materials relating
to the Notes in or from any jurisdiction except under circumstances that will,
to the best of its knowledge and belief, result in compliance with any
applicable laws and regulations thereof and that, to the best of its knowledge
and belief, will not impose any obligations on the Transferor, the Bank or the
Issuer except as set forth herein.
(b) Each Underwriter further represents, warrants and agrees that
(i) it will not offer or sell prior to the expiry of a period of six
months from the Closing Date specified in the Prospectus Supplement, any
Notes 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
Public Offers of Securities Regulations 1995, as amended; (ii) it will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 ("FSMA")) received by it in
connection with the issue or sale of any Notes in circumstances which
section 21(1) of the FSMA does not apply to the Issuer and shall procure
that the Notes are not offered or sold in the United Kingdom other than to
persons authorized under the FSMA or to persons otherwise having
professional experience in matters relating to investments and qualifying
as investment professionals under Article 19 of the Financial Services and
Markets Xxx 0000 (Financial Promotion) Order 2001, as amended or to
persons qualifying as high net worth persons under Article 49 of that
Order or to any other Person to whom the Notes may otherwise lawfully be
offered or to whom an invitation or inducement to engage in investment
activity in connection with the issue or
-25-
sale of the Notes may otherwise lawfully be communicated or caused to be
communicated; (iii) it will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Notes in, from
or otherwise involving the United Kingdom; and (iv) it will act in
accordance with the other United Kingdom selling restrictions set out in
the Prospectus Supplement.
Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Notes agreed to be purchased by such Underwriter
or Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such nondefaulting
Underwriters do not purchase all the Notes, this Agreement will terminate
without liability to any nondefaulting Underwriter, the Transferor or the Bank.
In the event of a default by any Underwriter as set forth in this Section 12,
the Closing Date shall be postponed for such period, not exceeding seven days,
as the Representatives 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.
Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to:
Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
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.
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 (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW), AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN AN ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
-26-
WITH THIS AGREEMENT AND THE TRANSACTION DOCUMENTS OR ANY MATTER ARISING
HEREUNDER OR THEREUNDER.
Representatives. The Representatives 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.
[Signatures Follow on Next Page]
-27-
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,
FIRST NATIONAL FUNDING LLC
By FIRST NATIONAL FUNDING
CORPORATION, its Managing Member
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
BANC OF AMERICA SECURITIES LLC
as Representative of the
Underwriters set forth herein
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
BANC ONE CAPITAL MARKETS, INC.
as Representative of the
Underwriters set forth herein
By /s/ Xxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
S-1
SCHEDULE A
Class A Notes
Principal Amount of
Underwriters Class A Notes
------------ -------------
Banc of America Securities LLC $166,000,000
Banc One Capital Markets, Inc. $166,000,000
ABN Amro Incorporated $83,000,000
Total $415,000,000
Class B Notes
Principal Amount of
Underwriters Class B Notes
------------ -------------
Banc of America Securities LLC $19,375,000
Banc One Capital Markets, Inc. $19,375,000
Total $38,750,000
Class C Notes
Principal Amount of
Underwriters Class C Notes
------------ -------------
Banc of America Securities LLC $23,125,000
Banc One Capital Markets, Inc. $23,125,000
Total $46,250,000
SCHEDULE B
Other Transactions
(1) First National Bank of Omaha ("FNBO") anticipates establishing a new
credit card master trust for the purpose of funding credit card
receivables arising under accounts under an affinity agreement, which
accounts were recently purchased by FNBO. FNBO will initially transfer
such receivables to a new special purpose entity established for the
purposes of that transaction, which in turn will transfer to the new
credit card master trust. The credit card master trust will issue variable
funding notes to a multi-seller conduit in order to fund the receivables
originated under such accounts from time to time. Neither the new special
purpose entity nor the new credit card master trust discussed in this
paragraph are entities that are or would be a party to any of the
Transaction Documents.
(2) There is a pending revolving conduit securitization of certain equipment
lease and loan contracts originated by First National Equipment Financing,
Inc., a wholly-owned subsidiary of FNBO ("FNEF"). The facility will be
structured in a manner intended to isolate the contracts from the
bankruptcy risk of FNEF and its affiliates. Accordingly, FNEF will sell
and contribute (in a transaction intended as a true conveyance for
bankruptcy purposes) all of its right, title and interest in the various
contracts and related security to a wholly-owned special purpose vehicle
("SPV1"), who then, for various accounting purposes, will further sell and
grant a security interest in such contracts and related rights to another
FNEF special purpose vehicle ("SPV2"). Pursuant to the terms of a
receivables purchase agreement, various groups of conduit and bank
transferees, will then provide financing to SPV2 in return for the
transfer by SPV2 to the agent under such receivables purchase agreement,
of a beneficial interest in all of SPV2's property (including such
contracts and related rights). FNEF is not a party to any of the
Transaction Documents.
(3) One or more existing purchasers of certificates issued by InfiBank Master
Credit Card Trust I (the "InfiBank Trust") will increase their investment
in the InfiBank Trust by increasing the amounts funded under their
certificates. The assets of the InfiBank Trust include credit card
receivables originated from time to time under accounts owned by InfiBank,
National Association, an affiliate of FNBO. From time to time FNBO and
InfiBank, National Association sell and contribute their interest in such
credit card receivables to InfiBank Funding, LLC, which in turn conveys
such credit card receivables to the InfiBank Trust.
ii
ANNEX I
A. 1. Series 2000-1
Collateral Interest
2. Series 2000-3
Collateral Interest
B. 1. Series 2000-1
Class A
2. Series 2000-3
Class A
3. Series 2000-2
CTO
Class A
Class B
4. Series 2001-1
CTO
Class A
Class B
5. Series 2002-1
Class A
Class B
Class C
6. Series 2002-2
Class A
Class B
iii
