EXECUTION COPY
EXHIBIT 1.1
FIRST NATIONAL MASTER NOTE TRUST
$411,250,000 CLASS A FLOATING RATE ASSET BACKED
NOTES, SERIES 2003-2
$40,000,000 CLASS B 3.08% ASSET BACKED
NOTES, SERIES 2003-2
$48,750,000 CLASS C 3.70% ASSET BACKED
NOTES, SERIES 2003-2
UNDERWRITING AGREEMENT
November 4, 2003
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
As Representative of the Underwriters set forth herein
Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
As Representative of the Underwriters set forth herein
Ladies and Gentlemen:
1. 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 $411,250,000 principal amount of Class A Floating Rate Asset
Backed Notes, Series 2003-2 (the "Class A Notes"), $40,000,000 principal amount
of Class B 3.08% Asset Backed Notes, Series 2003-2 (the "Class B Notes") and
$48,750,000 principal amount of Class C 3.70% Asset Backed Notes, Series 2003-2
(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 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 November 17, 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:
2. Representations and Warranties of the Transferor and the Bank.
Each of the Transferor (the representations and warranties as to the Transferor
being given by the Transferor) and the Bank (the representations and warranties
as to the Bank being given by the Bank) represents and warrants to, and agrees
with, the Underwriters that:
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(a) 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.
(b) The Bank is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, and has all requisite power, authority and legal right
to own its property and conduct its credit card business as such
properties are presently owned and such business is presently
conducted, and conduct its business as described in the Registration
Statement 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.
(c) The execution, delivery and performance of each of
the Transaction Documents to which it is a party, and the incurrence of
the obligations herein and therein set forth and the consummation of
the transactions contemplated hereby and thereby, and with respect to
the Transferor, the issuance of the Notes and the Collateral
Certificate, have been duly and validly authorized by the Transferor
and the Bank, as applicable, by all necessary action on the part of the
Transferor and the Bank, as applicable.
(d) This Agreement has been duly authorized, executed and
delivered by the Transferor and the Bank.
(e) Each of the 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.
(f) The Notes have been duly authorized and will be
issued pursuant to the terms of the Indenture and, when executed by the
Owner Trustee on behalf of the Issuer
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and authenticated by the Indenture Trustee in accordance with the
Indenture and delivered pursuant to the Indenture and this Agreement,
will be duly and validly executed, issued and outstanding and will
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms, subject
to (A) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting creditors'
rights generally, (B) the effect of general principles of equity
including (without limitation) concepts of materiality, reasonableness,
good faith, fair dealing (regardless of whether considered and applied
in a proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, and (C)
the unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring contribution from a
party for liability where such indemnification or contribution is
contrary to public policy. The Notes will be in the form contemplated
by the Indenture, and the Notes and the Indenture will conform to the
descriptions thereof contained in the Prospectus and the Registration
Statement, as amended or supplemented.
(g) 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.
(h) Neither the Transferor nor the Bank is in violation
of any Requirement of Law or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other instrument to which it is a party or by
which it is bound or to which any of its property is subject, which
violation or defaults separately or in the aggregate would have a
material adverse effect on the Issuer, the Certificate Trust, the
Transferor or the Bank.
(i) None of the issuance and sale of the Notes, the
issuance of the Collateral Certificate or the execution and delivery by
the Transferor or the Bank of this Agreement or any Transaction
Document to which it is a party, nor the incurrence by the Transferor
or the Bank of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or thereunder,
nor the fulfillment of the terms hereof or thereof does or will (i)
violate any Requirement of Law presently in effect, applicable to it or
its properties or by which it or its properties are or may be bound or
affected,
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(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 upon any of its property or assets, except for those
encumbrances created under the Transaction Documents.
(j) All approvals, authorizations, consents, orders and
other actions of any Person or of any court or other governmental body
or official required in connection with the execution and delivery by
the Transferor or the Bank of this Agreement or the Transaction
Documents to which it is a party or 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) The Transferor agrees it has not granted, assigned,
pledged or transferred and shall not grant, assign, pledge or transfer
to any Person a security interest in, or any other right, title or
interest in, the Receivables or the Collateral Certificate, except as
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provided in the 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.
(p) 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 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.
(q) A registration statement on Form S-3 (Nos.
000-000000-00 and 333-106732-01), 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".
(r) 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,
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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 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").
(s) 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.
(t) The computer tape of the Receivables to be created as
of October 1, 2003, and made available to the Representatives by the
Servicer, will be complete and accurate in all material respects as of
the date thereof.
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(u) 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.
(v) 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.
(w) It is not necessary to qualify the Pooling and
Servicing Agreement or the Collateral Series Supplement under the TIA.
3. Purchase, Sale, Payment and Delivery of the Notes.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class A
Underwriters, and the Class A Underwriters agree to purchase from the
Transferor, at a purchase price of 99.775% of the principal amount
thereof, $411,250,000 aggregate principal amount of the Class A Notes,
each Class A Underwriter to purchase the amounts shown on Schedule A
hereto.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class B
Underwriters, and the Class B Underwriters agree to purchase from the
Transferor, at a purchase price of 99.72393% of the principal amount
thereof, $40,000,000 aggregate principal amount of the Class B Notes,
each Class B Underwriter to purchase the amounts shown on Schedule A
hereto.
(c) 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 99.69535% of the principal amount
thereof, $48,750,000 aggregate principal amount of the Class C Notes,
each Class C Underwriter to purchase the amounts shown on Schedule A
hereto.
(d) 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 November 17, 2003 such time being herein
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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.
4. 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.
5. Certain Agreements of the Transferor. The Transferor agrees
with the Underwriters that:
(a) Immediately following the execution of this
Agreement, the Transferor will prepare a Prospectus Supplement setting
forth the amount of 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 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.
(b) If at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would
include 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.
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(c) As soon as practicable, the Transferor will cause the
Issuer to make generally available to the Noteholders an earnings
statement or statements of the Issuer covering a period of at least 12
months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(d) 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.
(e) 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.
(f) 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.
(g) 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 2003-2 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 2003-2
Noteholders or the Rating Agencies, as the case may be.
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(h) 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.
(i) To the extent, if any, that any of the ratings
provided with respect to the Notes by any Rating Agency are conditional
upon the furnishing of documents or the taking of any other actions by
the Transferor, the Transferor shall furnish such documents and take
any such other actions as are necessary to satisfy such condition.
(j) 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.
(k) 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).
(l) 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.
(m) 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.
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6. Certain Agreements of the Bank.
(a) 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).
(b) 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.
7. 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 the Transferor and
the Bank made pursuant to the provisions hereof, to the performance by the
Transferor and the Bank of their respective obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to each of the date of this Agreement and
the Closing Date, the Representatives shall have received an agreed
upon procedures letter of Deloitte & Touche LLP, dated on or prior to
the date of the Preliminary Prospectus Supplement or Prospectus
Supplement, respectively, 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.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement; and, prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Transferor or the
Representatives, shall be contemplated by the Commission.
(c) 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 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
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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, 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 which, in the Representatives'
judgment, makes it impractical to proceed with completion of the sale
of and payment for the Notes.
(d) 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:
(i) 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.
(ii) Each of the Transaction Documents and this
Agreement has been duly authorized, executed and delivered by
each FNBO Entity that is a party thereto.
(iii) 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
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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.
(iv) Except as otherwise disclosed in the
Prospectus (and any supplement thereto) or the Registration
Statement, there is no pending or, to the best of 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.
(v) 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. 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,
(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.
(vi) 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
-14-
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.
(vii) 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, 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.
(viii) 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.
(ix) 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.
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(x) 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.
(xi) The Transaction Documents (other than the
Trust Agreement and Administration Agreement), the Collateral
Certificate and the Notes conform in all material respects to
the descriptions thereof contained in the Prospectus.
(xii) 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
issuance of the Notes pursuant to the Indenture will not be,
required to be registered under the Investment Company Act of
1940, as amended.
(xiii) 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.
(xiv) For federal income tax purposes: (i) the
Notes will be characterized as debt; (ii) neither the
Certificate Trust nor the Note Trust will be classified as an
association or publicly traded partnership taxable as a
corporation for federal income tax purposes; (iii) assuming
that the outstanding securities listed in Annex I (the "Prior
Opinion Obligations") are characterized as debt, and the
Series 2000-1 Collateral Interest and the Series 2000-3
Collateral Interest are characterized as debt or partnership
interests, for federal income tax purposes immediately prior
to the issuance of the Notes, the issuance of the Notes will
not adversely affect the federal income tax characterization
of the Prior Opinion Obligations, the Series 2000-1 Collateral
Interest or the Series 2000-3 Collateral Interest; and (iv)
the issuance of the Notes will not otherwise constitute an
event in which a gain or loss would be recognized by any
holders of Prior Opinion Obligations.
(xv) 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
-16-
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.
(xvi) 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.
(xvii) 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
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.
(xviii) 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.
(xix) Certain matters regarding and related to the
limited liability company agreement of the Transferor.
(xx) 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.
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(xxi) 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.
(xxii) 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.
(xxiii) 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).
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.
(e) The Representatives shall have received from Mayer,
Brown, Xxxx & Maw LLP, special counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to such
matters relating to this transaction as the 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.
(f) 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
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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.
(g) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, dated
the Closing Date, satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and
validly existing as a banking corporation in good standing
under the laws of the State of Delaware.
(ii) The Owner Trustee has the power and
authority to execute, deliver and perform the Trust Agreement.
(iii) 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.
(iv) 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 trust powers of the Owner
Trustee (other than the filing of the certificate of trust
with the Delaware Secretary of State).
(v) Neither the execution, delivery and
performance, by the Owner Trustee, of the Trust Agreement, nor
the consummation of the transactions by the Owner Trustee
contemplated thereby, 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
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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, of any judgment or order applicable
to the Owner Trustee.
(vi) To such counsel's knowledge, without
independent investigation, there are no pending or threatened
actions, suits or proceedings affecting the Owner Trustee
before any court or other governmental authority which, if
adversely determined, would materially and adversely affect
the ability of the Owner Trustee to carry out the transactions
contemplated by the Trust Agreement.
(h) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Issuer, dated the Closing Date, satisfactory in form and substance to
the Representative and its counsel, to the effect that:
(i) The Issuer has been duly formed and is
validly existing in good standing as a statutory trust under
the Delaware Statutory Trust Act, 12 Del. C. 3801 et seq.
(referred to in this subsection (h) as the "Trust Act").
(ii) The Trust Agreement is a legal, valid and
binding obligation of the Transferor and the Owner Trustee,
enforceable against the Transferor and the Owner Trustee, in
accordance with its terms.
(iii) Under the Trust Act and the Trust Agreement,
the execution and delivery of the Transfer and Servicing
Agreement 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.
(iv) 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.
(v) Neither the execution, delivery and
performance by the Issuer of the Trust Documents or the Notes,
nor the consummation by the Issuer of any of the transactions
by the Issuer contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware,
other than the filing of the certificate of trust with the
Delaware Secretary of State which certificate of trust has
been duly filed and the filing of any financing statements
with the Delaware Secretary of State in connection with the
Indenture.
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(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(i) The Representative shall have received an opinion of
Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee dated the
Closing Date, satisfactory in form and substance to the Representatives
and their counsel, to the effect that:
(i) 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.
(ii) 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.
(iii) The Indenture Trustee has duly executed and
authenticated the Notes.
(iv) The Indenture Trustee is duly authorized and
empowered to exercise trust powers under applicable law and to
perform under the Transaction Documents to which it is a
party, or which it has acknowledged.
(v) 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
regulation of the United States of
-21-
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.
(vi) 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.
(j) The Representatives shall have received an opinion of
Xxxxxxx and Xxxxxx LLP, 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:
(i) 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.
(ii) 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.
(iii) The Certificate Trust Trustee has duly
executed, authenticated and delivered the Collateral
Certificate.
(iv) The Certificate Trust Trustee is duly
authorized and empowered to exercise trust powers under
applicable law and to perform under the Transaction Documents
to which it is a party or which it has acknowledged.
(v) 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.
(vi) 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
-22-
performance by the Certificate Trust Trustee of the terms of
the Pooling and Servicing Agreement.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
8. 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
-23-
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 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.
9. Indemnification and Contribution.
(a) 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
-24-
supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Act if the Transferor or
the Bank notified the Representative in writing in accordance with
Section 5(a) hereof and previously furnished copies of the Prospectus
(excluding documents incorporated by reference) in the quantity
requested in accordance with Section 5(d) hereof to such Underwriter
and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in
the preliminary prospectus and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless the Transferor, 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 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.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action or the
assertion by a third party of a claim, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not (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),
-25-
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 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.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Transferor and the Bank
on the one hand and the Underwriters on the other from the offering of
the 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
-26-
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.
(e) The obligations of the Transferor and the Bank under
this Section shall be in addition to any liability which the Transferor
or the Bank may otherwise have and shall extend, upon the same terms
and conditions, to each Person, if any, who controls any Underwriter
within the meaning of the Act or the 1934 Act and each director,
officer, employee, and agent of an Underwriter and 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.
10. 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.
-27-
11. 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 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.
12. 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
-28-
for its liability, if any, to the Transferor and the Bank and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
13. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to:
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
14. 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.
15. 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 WITH THIS AGREEMENT AND THE
TRANSACTION DOCUMENTS OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
16. 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]
-29-
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: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
BANC ONE CAPITAL MARKETS, INC.
as Representative of the
Underwriters set forth herein
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
BANC OF AMERICA SECURITIES LLC
as Representative of the
Underwriters set forth herein
By /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
S-1
SCHEDULE A
Class A Notes
Principal Amount of
Underwriters Class A Notes
------------ -------------
Banc One Capital Markets, Inc. $160,625,000
Banc of America Securities LLC $160,625,000
ABN Amro Incorporated $ 90,000,000
Total $411,250,000
Class B Notes
Principal Amount of
Underwriters Class B Notes
------------ -------------
Banc One Capital Markets, Inc. $20,000,000
Banc of America Securities LLC $20,000,000
Total $40,000,000
Class C Notes
Principal Amount of
Underwriters Class C Notes
------------ -------------
Banc One Capital Markets, Inc. $24,375,000
Banc of America Securities LLC $24,375,000
Total $48,750,000
i
SCHEDULE B
Other Transactions
Up to $350,000,000 Series 2003-3 asset backed notes to be privately
placed with one or more conduit commercial paper issuers.
ii
ANNEX I
FIRST BANKCARD MASTER CREDIT CARD TRUST
Class A Variable Funding Certificates, Series 2000-1
Class A Floating Rate Asset Backed Certificates, Series 2000-2
Class B Floating Rate Asset Backed Certificates, Series 2000-2
Floating Rate Collateralized Trust Obligations, Series 2000-2
Class A Variable Funding Certificates, Series 2000-3
Class A Floating Rate Asset Backed Certificates, Series 2001-1
Class B Floating Rate Asset Backed Certificates, Series 2001-1
Floating Rate Collateralized Trust Obligations, Series 2001-1
FIRST NATIONAL MASTER NOTE TRUST
Class A Floating Rate Asset Backed Notes, Series 2002-1
Class B Floating Rate Asset Backed Notes, Series 2002-1
Class C Floating Rate Asset Backed Notes, Series 2002-1
Class A Floating Rate Asset Backed Notes, Series 2002-2
Class B Floating Rate Asset Backed Notes, Series 2002-2
Class A Floating Rate Asset Backed Notes, Series 2003-1
Class B 2.76% Asset Backed Notes, Series 2003-1
Class C Floating Rate Asset Backed Notes, Series 2003-1
iii
