EXHIBIT 1.1
EXECUTION VERSION
FIRST NATIONAL MASTER NOTE TRUST
$415,000,000 CLASS A FLOATING RATE ASSET BACKED
NOTES, SERIES 2003-1
$38,750,000 CLASS B 2.76% ASSET BACKED
NOTES, SERIES 2003-1
$46,250,000 CLASS C FLOATING RATE ASSET BACKED
NOTES, SERIES 2003-1
UNDERWRITING AGREEMENT
March 13, 2003
Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
As Representative of the Underwriters set forth herein
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
As Representative of the Underwriters set forth herein
Ladies and Gentlemen:
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 $415,000,000 principal amount of Class
A Floating Rate Asset Backed Notes, Series 2003-1 (the "Class A
Notes"), $38,750,000 principal amount of Class B 2.76% Asset Backed
Notes, Series 2003-1 (the "Class B Notes") and $46,250,000 principal
amount of Class C Floating Rate Asset Backed Notes, Series 2003-1 (the
"Class C Notes", and together with the Class A Notes and the Class B
Notes, the "Notes") to the Underwriters (as defined hereinafter) for
whom you are acting as Representatives (the "Representatives").
The Issuer is a Delaware statutory business trust formed
pursuant to (a) a Trust Agreement, dated as of October 16, 2002 (the
"Trust Agreement"), between the Transferor and Wilmington Trust Company
("WTC"), as owner trustee (the "Owner Trustee") and (b) the filing of a
certificate of trust with the Secretary of State of Delaware on October
16, 2002. The Notes will be issued pursuant to a Master Indenture,
dated as of October 24, 2002 (the "Master Indenture"), between the
Issuer and The Bank of New York ("BONY"), as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series 0000-0 Xxxxxxxxx
Supplement with respect
to the Notes to be dated as of March 20, 2003 (the "Indenture
Supplement," and together with the Master Indenture, the "Indenture").
Initially, the primary asset of the Issuer will be a
certificate (the "Collateral Certificate") representing a beneficial
interest in the assets held in the First Bankcard Master Credit Card
Trust (the "Certificate Trust"), issued pursuant to the Second Amended
and Restated Pooling and Servicing Agreement, dated as of October 24,
2002 (as amended and supplemented, the "Pooling and Servicing
Agreement"), among FNF LLC, First National Bank of Omaha, a national
banking association (the "Bank"), as servicer (the "Servicer") and
BONY, as trustee (the "Certificate Trust Trustee"), and the Collateral
Series Supplement, dated as of October 24, 2002, to the Pooling and
Servicing Agreement (the "Collateral Supplement" and together with the
Pooling and Servicing Agreement, the "Pooling and Servicing
Agreement"). The assets of the Certificate Trust include, among other
things, certain amounts due (the "Receivables") on a portfolio of
Visa(R) and MasterCard(R) revolving credit card accounts owned by the
Bank (the "Accounts").
The Receivables are transferred to the Certificate Trust
pursuant to the Pooling and Servicing Agreement. The Receivables
transferred to the Certificate Trust by the Transferor are acquired by
the Transferor from the Bank pursuant to a Receivables Purchase
Agreement, dated as of October 24, 2002 (the "Receivables Purchase
Agreement"), between the Transferor and the Bank. The Collateral
Certificate was transferred by the Transferor to the Issuer pursuant to
the Transfer and Servicing Agreement, dated as of October 24, 2002 (the
"Transfer and Servicing Agreement"), among the Transferor, the Bank, as
Servicer, and the Issuer.
The Bank has agreed to provide notices and perform on behalf
of the Issuer certain other administrative obligations required by the
Transfer and Servicing Agreement, the Master Indenture and each
indenture supplement for each series of Notes issued by the Issuer,
pursuant to an Administration Agreement, dated as of October 24, 2002
(the "Administration Agreement"), between the Bank, as administrator
(in such capacity, the "Administrator"), and the Issuer. The Transfer
and Servicing Agreement, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and
the Administration Agreement are referred to herein, collectively, as
the "Transaction Documents."
This Underwriting Agreement is referred to herein as this
"Agreement." To the extent not defined herein, capitalized terms used
herein have the meanings assigned in the Transaction Documents.
The Transferor and the Bank hereby agree, severally and not
jointly, with the underwriters for the Class A Notes listed on Schedule
A hereto (the "Class A Underwriters") the underwriters for the Class B
Notes listed on Schedule A hereto (the "Class B Underwriters") and the
underwriters for the Class C Notes listed on Schedule A hereto (the
"Class C Underwriters" and together with the Class A Underwriters and
the Class B Underwriters, the "Underwriters") as follows:
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 and authenticated by
the Indenture Trustee in accordance with the Indenture and
delivered pursuant to the Indenture and this Agreement, will
be duly and validly executed, issued and outstanding and will
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance
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with their terms, subject to (A) the effect of bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally, (B) the effect of general principles of equity
including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of
whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability
under certain circumstances of provisions indemnifying a party
against liability or requiring contribution from a party for
liability where such indemnification or contribution is
contrary to public policy. The Notes will be in the form
contemplated by the Indenture, and the Notes and the Indenture
will conform to the descriptions thereof contained in the
Prospectus and the Registration Statement, as amended or
supplemented.
(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, (ii) breach or violate any
provision of the organizational documents applicable to the
Transferor or the Bank, (iii) violate any judgment, order or
decree of any court, arbitrator, administrative agency or
other governmental authority applicable to the Transferor or
the Bank, (iv) conflict with, or result in a breach of, or
constitute a default under, any indenture, contract,
agreement, mortgage, deed of trust or instrument to which it
is a party or by which it or its properties are bound, (v)
result in the acceleration of any obligation of the Transferor
or the Bank, or (vi) result in the creation or imposition of
any Lien
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upon any of its property or assets, except for those
encumbrances created under the Transaction Documents.
(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 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
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agreement) or the Receivables Purchase Agreement, as
applicable, and agrees to take all action required by the
Pooling and Servicing Agreement or the Receivables Purchase
Agreement, as applicable, in order to maintain the security
interests in the Receivables granted pursuant to the
Receivables Purchase Agreement, the Pooling and Servicing
Agreement and the Indenture, as applicable.
(q) A registration statement on Form S-3 (Nos. 000-00000-00 and
333-86574-01), including a form of prospectus and such
amendments thereto as may have been filed prior to the date
hereof, relating to the Notes and the offering thereof in
accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), has been filed with, and has been
declared effective by, the Commission. If any post-effective
amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared
effective by the Commission. For purposes of this Agreement,
"Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the
Effective Time. Such registration statement, as amended at the
Effective Time, is hereinafter referred to as the
"Registration Statement." The Transferor proposes to file with
the Commission pursuant to Rule 424(b) ("Rule 424(b)") under
the Act a supplement (the "Prospectus Supplement") to the
prospectus included in the Registration Statement (such
prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with
the Commission pursuant to Rule 424(b), is hereinafter
referred to as the "Base Prospectus") relating to the Notes
and the method of distribution thereof. The Base Prospectus
and the Prospectus Supplement, together with any amendment
thereof or supplement thereto, are hereinafter referred to as
the "Prospectus".
(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, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing
does not apply to statements in or omissions from either of
such documents based upon written information furnished to the
Transferor or the Bank by the Underwriters specifically for
use therein. Each of the Transferor and the Bank hereby
acknowledges that (i) the only information provided by the
Class A Underwriters for inclusion in the Registration
Statement and the Prospectus is set forth on the cover page of
the Prospectus Supplement in the table under the heading
"Class A Notes" and on the line across from "Price to public,"
in the table listing the Class A Underwriters and the
Principal Amount of Class A Notes under the heading
"Underwriting" in the Prospectus Supplement, in the table
following the third paragraph under the heading "Underwriting"
in the Prospectus Supplement on the line across from "Class A
Notes", in the table following the second paragraph under the
heading "Underwriting" in the Prospectus Supplement in the
column labeled "Class A Notes" and in the
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final paragraph under the heading "Underwriting" in the
Prospectus Supplement (the "Class A Underwriters'
Information"), (ii) the only information provided by the Class
B Underwriters for inclusion in the Registration Statement and
the Prospectus is set forth on the cover page of the
Prospectus Supplement in the table under the heading "Class B
Notes" and on the line across from "Price to public," in the
table listing the Class B Underwriters and the Principal
Amount of Class B Notes under the heading "Underwriting" in
the Prospectus Supplement, in the table following the third
paragraph under the heading "Underwriting" in the Prospectus
Supplement on the line across from "Class B Notes", in the
table following the second paragraph under the heading
"Underwriting" in the Prospectus Supplement in the column
labeled "Class B Notes" and in the final paragraph under the
heading "Underwriting" in the Prospectus Supplement (the
"Class B Underwriters' Information") and (iii) the only
information provided by the Class C Underwriters for inclusion
in the Registration Statement and the Prospectus is set forth
on the cover page of the Prospectus Supplement in the table
under the heading "Class C Notes" and on the line across from
"Price to public," in the table listing the Class C
Underwriters and the Principal Amount of Class C Notes under
the heading "Underwriting" in the Prospectus Supplement, in
the table following the third paragraph under the heading
"Underwriting" in the Prospectus Supplement on the line across
from "Class C Notes", in the table following the second
paragraph under the heading "Underwriting" in the Prospectus
Supplement in the column labeled "Class C Notes" and in the
final paragraph under the heading "Underwriting" in the
Prospectus Supplement (the "Class C Underwriters'
Information").
(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 March
6, 2003, and made available to the Representatives by the
Servicer, will be complete and accurate in all material
respects as of the date thereof.
(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 Trust
Indenture Act of 1939.
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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, $415,000,000 aggregate principal
amount of the Class A Notes, each Class A Underwriter to
purchase the amounts shown on Schedule A hereto.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class B
Underwriters, and the Class B Underwriters agree to purchase
from the Transferor, at a purchase price of 99.71022% of the
principal amount thereof, $38,750,000 aggregate principal
amount of the Class B Notes, each Class B Underwriter to
purchase the amounts shown on Schedule A hereto.
(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 99.70% of the
principal amount thereof, $46,250,000 aggregate principal
amount of the Class C Notes, each Class C Underwriter to
purchase the amounts shown on Schedule A hereto.
(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 March 20, 2003, such
time being herein referred to as the "Closing Date." Each of
the Class A Notes, the Class B Notes and the Class C Notes so
to be delivered shall be represented by one or more definitive
notes registered in the name of Cede & Co., as nominee for The
Depository Trust Company. The Notes will be available for
inspection, checking and packaging by the Underwriters at the
office at which the Notes are to be delivered in Omaha,
Nebraska no later than 4:00 p.m., Chicago time, on the
business day prior to the Closing Date.
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
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the Representatives shall reasonably object in writing. The
Transferor will advise the Representatives promptly of (i) the
effectiveness of any amendment or supplementation of the
Registration Statement or Prospectus, (ii) any request by the
Commission for any amendment or supplementation of the
Registration Statement or the Prospectus or for any additional
information, (iii) the receipt by the Transferor of any
notification with respect to the suspension of qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes and (iv) the
institution by the Commission of any stop order proceeding in
respect of the Registration Statement, and will use its best
efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(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.
(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.
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(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 2003-1 Noteholders pursuant to Sections 5.03(a)
and (d) of the Indenture Supplement, by first class mail
promptly after such certificates, statements and reports are
furnished to the Certificate Trustee, the Owner Trustee, the
Indenture Trustee, the Series 2003-1 Noteholders or the Rating
Agencies, as the case may be.
(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.
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(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.
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
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 the date of this Agreement, the Representatives
shall have received an agreed upon procedures letter of
Deloitte & Touche LLP, dated on or prior to the date of this
Agreement, confirming that they are independent public
accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder, which letter shall
be substantially in the form heretofore agreed to and
otherwise in form and in substance satisfactory to the
Representatives and their counsel.
(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
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Issuer, the Bank, the Transferor or First National of
Nebraska, Inc. or any of their Affiliates on any exchange or
in the over-the-counter market; (ii) a banking moratorium
shall have been declared by Federal or state authorities;
(iii) any downgrading in the rating of any debt securities of
the Certificate Trust, the Issuer, the Bank, the Transferor,
First National of Nebraska, Inc. or any of their Affiliates by
any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under
surveillance or review its rating of any such debt securities
(other than an announcement with positive implications of a
possible upgrading, and no implication of a possible
downgrading, of such rating); (iv) the United States shall
have become engaged in hostilities, there shall have been an
escalation of hostilities involving the United States or there
shall have been a declaration of a national emergency or war
by the United States or any other substantial national or
international calamity or emergency which, in the judgment of
the Representatives, the effect of such hostilities,
escalation, declaration or other calamity or emergency makes
it impractical or inadvisable to proceed with the completion
and sale of and payment for the Notes; and (v) any material
adverse change in the financial markets for asset-backed
securities in the United States if, in the Representatives'
judgment, the effect of which is to make it impractical to
proceed with completion of the sale of and payment for the
Notes.
(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
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.
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(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. ss.1821(e) of any liability for
the disaffirmance or repudiation of any contract),
(B) the effect of general principles of equity
including (without limitation) concepts of
materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a
proceeding in equity or at law), and also to the
possible unavailability of specific performance or
injunctive relief, (C) the unenforceability under
certain circumstances of provisions indemnifying a
party against liability or requiring contribution
from a party for liability where such indemnification
or contribution is contrary to public policy and (D)
certain remedial provisions of the Indenture may be
unenforceable in whole or in part under the UCC, but
the inclusion of such provisions does not render the
other provisions of the Indenture invalid and
notwithstanding that such provisions may be
unenforceable in whole or in part, the Indenture
Trustee, on behalf of the Noteholders, will be able
to enforce the remedies of a secured party under the
UCC.
(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 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,
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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.
(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 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
-14-
issuance of the Notes pursuant to the Indenture will
not be, required to be registered under the
Investment Company Act of 1940, as amended.
(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) Subject to the discussion in the Base Prospectus
under the heading "Federal Income Tax Consequences",
the Notes will properly be characterized as
indebtedness and neither the Certificate Trust nor
the Issuer will be treated as an association (or
publicly traded partnership) taxable as a
corporation, for U.S. federal income tax purposes.
(xv) Assuming that the outstanding securities identified
in Part A of Annex I hereto would be characterized as
indebtedness or a partnership interest for such
purposes immediately prior to the issuance of the
Notes, the issuance of the Notes will not adversely
affect the federal income tax characterization of any
outstanding Investor Certificates for each series
identified in Annex I hereto or in the case of the
outstanding securities identified in Part B of Annex
I hereto otherwise constitute an event in which a
gain or loss would be recognized by the holders
thereof.
(xvi) Each of the Indenture and the Administration
Agreement constitutes the legal, valid and binding
obligation of the Issuer under the laws of the State
of Nebraska, subject to (A) the effect of bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of
general principles of equity including (without
limitation) concepts of materiality, reasonableness,
good faith, fair dealing (regardless of whether
considered and applied in a proceeding in equity or
at law), and also to the possible unavailability of
specific performance or injunctive relief, (C) the
unenforceability under certain circumstances of
provisions indemnifying a party against liability or
requiring contribution from a party for liability
where such indemnification or contribution is
contrary to public policy and (D) certain remedial
provisions of the Indenture may be unenforceable in
whole or in part under the UCC, but the inclusion of
such provisions does not render the other provisions
of the Indenture invalid and notwithstanding that
such provisions may be unenforceable in whole or in
part, the Indenture Trustee, on behalf of the
Noteholders, will be able to enforce the remedies of
a secured party under the UCC.
(xvii) 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.
(xviii) If the FDIC were appointed as conservator or receiver
for the Bank (a) the FDIC regulation entitled
"Treatment by the Federal Deposit Insurance
Corporation as Conservator or Receiver of Financial
Assets Transferred by an Insured Depository
Institution in Connection with a Securitization or
Participation," 12 CFR Section 360.6 (the "Rule")
would be applicable to the transfers of Receivables
by Bank to Transferor under the Receivables Purchase
Agreement and (b) under the Rule, the FDIC could not,
by exercise of its authority to disaffirm or
repudiate contracts
-15-
under 12 U.S.C. Section 1821(e), reclaim or recover
the Receivables or the proceeds thereof from
Transferor, the Certificate Trust or the Issuer or
recharacterize the Receivables or the proceeds
thereof as property of Bank or the receivership for
Bank.
(xix) 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.
(xx) Certain matters regarding and related to the limited
liability company agreement of the Transferor.
(xxi) 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.
(xxii) 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.
(xxiii) 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.
(xxiv) The Indenture Trustee is the registered holder of the
Collateral Certificate, subject to no Liens of
record.
Such counsel also shall state that
they have participated in conferences with
representatives of the Transferor and the
Bank and their accountants, the Underwriters
and counsel to the Underwriters concerning
the Registration Statement and the
Prospectus and have considered the matters
to be stated therein and the matters stated
therein, although they are not independently
verifying the accuracy, completeness or
fairness of such statements (except as
stated in paragraphs (x) and (xi) above) and
based upon and subject to the foregoing,
nothing has come to such counsel's attention
to cause such counsel to believe that the
Registration Statement (excluding any
exhibits filed therewith), at the time it
became effective, contained any untrue
statement of a material fact or omitted to
state any material fact required to be
stated therein or necessary to make the
statements therein not misleading, or that
the Prospectus, as of the date hereof,
contains any untrue statement of a material
fact or omits to state any material fact
required to be stated therein or necessary
in order to make the statements therein, in
light of the circumstances under which they
were made, not misleading (it being
understood that such counsel has not been
requested to, and does not, make any comment
in such opinion with respect to the
financial statements, supporting schedules
and other financial or statistical
information contained in the Registration
Statement or the Prospectus).
-16-
In rendering such opinion, counsel
may rely (A) as to matters involving the
application of laws of any jurisdiction
other than the State of New York, State of
Nebraska and the United States, to the
extent deemed proper and stated in such
opinion, upon the opinion of other counsel
of good standing believed by such counsel to
be reliable and acceptable to the
Representative and its counsel, and (B) as
to matters of fact, on certificates of
responsible officers of the Issuer, the
Bank, the Transferor and public officials.
(e) The Representatives shall have received from Mayer, Brown,
Xxxx & Maw, special counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to such
matters relating to this transaction as the Representatives
may require, and the Transferor shall have furnished to such
counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(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 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, 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 and
to consummate the transactions contemplated thereby.
(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.
-17-
(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 banking or
trust powers of the Owner Trustee (other than the
filing of the certificate of trust with the Delaware
Secretary of State, which certificate of trust has
been duly filed).
(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, is in violation of the charter or bylaws of
the Owner Trustee or of any law, governmental rule or
regulation of the State of Delaware or of the United
States of America governing trust powers of the Owner
Trustee or, to such counsel's knowledge, without
independent investigation, any indenture, mortgage,
bank credit agreement, note or bond purchase
agreement, long-term lease, license or other
agreement or instrument to which it is a party or by
which it is bound or, to such counsel's knowledge,
without independent investigation, or any judgment or
order applicable to the Owner Trustee.
(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, 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
-18-
thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving
of notice to, the filing, registration or
qualification with, or the taking of any other action
in respect of, any governmental authority or agency
of the State of Delaware, other than the filing of
the certificate of trust with the Delaware Secretary
of State (which certificate of trust has been duly
filed) and the filing of any financing statements
with the Delaware Secretary of State in connection
with the Indenture.
(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, 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.
(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
-19-
regulation of the United States of America or the
State of New York governing the banking or trust
powers of the Indenture Trustee or (B) the
organizational documents of the Indenture Trustee.
(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, 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.
(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 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.
-20-
(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 the
preparation, issuance, execution, authentication and delivery of the
Notes, (ii) incident to the qualification of the Notes for investment
under the laws of such jurisdictions as either Representative
designates, (iii) for any filing fee of the National Association of
Securities Dealers, Inc. relating to the Notes, (iv) incident to the
preparation, printing (including word processing and duplication costs)
and delivery of the preliminary Prospectus ("Preliminary Prospectus")
and the Prospectus (including in each case all exhibits, amendments,
attachments and supplements thereto), (v) in connection with the
printing (including word processing and duplication costs) and delivery
of this Agreement, the Preliminary Prospectus, the Prospectus, the
Transaction Documents and the furnishing to the Representatives of
copies of the Prospectus as herein provided, (vi) constituting the fees
and disbursements of the Representatives' counsel and the Bank's and
the Transferor's counsel and accountants, (vii) payable to each Rating
Agency in connection with the ratings of
-21-
the Notes and (viii) in connection with the structuring and marketing
of the Notes (and any other miscellaneous expenses in connection
therewith); provided that the Representatives shall not be obligated to
pay any expenses of a defaulting Representative.
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 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
-22-
any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to
the extent, but only to the extent, that, with respect to each
of the Class A Underwriters, the Class B Underwriters and the
Class C Underwriters, such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with the Class A Underwriters'
Information, the Class B Underwriters' Information or the
Class C Underwriters' Information, respectively, and will
reimburse any actual legal or other expenses reasonably
incurred by the Transferor and the Bank in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that in no case shall any Underwriter be responsible
for any amount in excess of the Underwriter's discounts or
commission applicable to the Notes to be sold by such
Underwriter hereunder.
(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), provided, however, that if
(x) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel
with a conflict of interest which, if such counsel had been
retained, would have required such counsel to withdraw from
such representation, (y) the indemnified party shall have been
advised by counsel that there may be one or more legal
defenses available to it that are different from or additional
to those available to the indemnifying party or to other
indemnified parties, or (z) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
receipt by the indemnifying party of notice of the institution
of such action or proceeding, then, in each such case, (1) the
indemnifying party shall not have the right to direct the
defense of such action on behalf of such indemnified party or
parties, (2) such indemnified party or parties shall have the
right to select separate counsel to defend such action on
behalf of such indemnified party or parties (provided that, if
more than one indemnified party is subject to the
circumstances described in clause (y) , then, to the extent
permitted by the rules of professional conduct applicable to
attorneys, all such indemnified parties shall be represented
by one such separate counsel) and (3) all costs and expenses
of each such indemnified party in connection with such action
or proceeding shall be paid by the indemnifying party pursuant
to subsection (a) or (b) above, and after notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action,
the indemnifying
-23-
party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation unless,
(i) the indemnified party shall have employed separate counsel
in accordance with this sentence or (ii) the indemnifying
party has authorized in writing the employment of counsel for
the indemnified party at the expense of the indemnifying
party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that
are the subject matter of such action and does not include a
statement as to, or an admission of, fault, culpability or
failure to act by or on behalf of any indemnified party.
(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 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
-24-
each such Person shall have the same rights to contribution as
the Underwriter; and the obligations of any Underwriter under
this Section shall be in addition to any liability that such
Underwriter may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Transferor or
the Bank, to each officer of the Transferor or the Bank who
has signed the Registration Statement and to each Person, if
any, who controls the Transferor or the Bank within the
meaning of the Act or the 1934 Act and each director, officer,
employee, and agent of Transferor or Bank and each such Person
shall have the same rights to contribution as the Transferor
or Bank, as applicable.
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.
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
-25-
sale of the Notes may otherwise lawfully be communicated or
caused to be communicated; (iii) it will comply with all
applicable provisions of the FSMA with respect to anything
done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; and (iv) it will act in
accordance with the other United Kingdom selling restrictions
set out in the Prospectus Supplement.
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
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 of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
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
-26-
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]
-27-
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Transferor whereupon this letter and your
acceptance shall become a binding agreement among the Transferor, the Bank and
the Underwriters.
Very truly yours,
FIRST NATIONAL FUNDING LLC
By FIRST NATIONAL FUNDING
CORPORATION, its Managing Member
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
BANC OF AMERICA SECURITIES LLC
as Representative of the
Underwriters set forth herein
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
BANC ONE CAPITAL MARKETS, INC.
as Representative of the
Underwriters set forth herein
By /s/ Xxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
S-1
SCHEDULE A
Class A Notes
Principal Amount of
Underwriters Class A Notes
------------ -------------
Banc of America Securities LLC $166,000,000
Banc One Capital Markets, Inc. $166,000,000
ABN Amro Incorporated $83,000,000
Total $415,000,000
Class B Notes
Principal Amount of
Underwriters Class B Notes
------------ -------------
Banc of America Securities LLC $19,375,000
Banc One Capital Markets, Inc. $19,375,000
Total $38,750,000
Class C Notes
Principal Amount of
Underwriters Class C Notes
------------ -------------
Banc of America Securities LLC $23,125,000
Banc One Capital Markets, Inc. $23,125,000
Total $46,250,000
SCHEDULE B
Other Transactions
(1) First National Bank of Omaha ("FNBO") anticipates establishing a new
credit card master trust for the purpose of funding credit card
receivables arising under accounts under an affinity agreement, which
accounts were recently purchased by FNBO. FNBO will initially transfer
such receivables to a new special purpose entity established for the
purposes of that transaction, which in turn will transfer to the new
credit card master trust. The credit card master trust will issue variable
funding notes to a multi-seller conduit in order to fund the receivables
originated under such accounts from time to time. Neither the new special
purpose entity nor the new credit card master trust discussed in this
paragraph are entities that are or would be a party to any of the
Transaction Documents.
(2) There is a pending revolving conduit securitization of certain equipment
lease and loan contracts originated by First National Equipment Financing,
Inc., a wholly-owned subsidiary of FNBO ("FNEF"). The facility will be
structured in a manner intended to isolate the contracts from the
bankruptcy risk of FNEF and its affiliates. Accordingly, FNEF will sell
and contribute (in a transaction intended as a true conveyance for
bankruptcy purposes) all of its right, title and interest in the various
contracts and related security to a wholly-owned special purpose vehicle
("SPV1"), who then, for various accounting purposes, will further sell and
grant a security interest in such contracts and related rights to another
FNEF special purpose vehicle ("SPV2"). Pursuant to the terms of a
receivables purchase agreement, various groups of conduit and bank
transferees, will then provide financing to SPV2 in return for the
transfer by SPV2 to the agent under such receivables purchase agreement,
of a beneficial interest in all of SPV2's property (including such
contracts and related rights). FNEF is not a party to any of the
Transaction Documents.
(3) One or more existing purchasers of certificates issued by InfiBank Master
Credit Card Trust I (the "InfiBank Trust") will increase their investment
in the InfiBank Trust by increasing the amounts funded under their
certificates. The assets of the InfiBank Trust include credit card
receivables originated from time to time under accounts owned by InfiBank,
National Association, an affiliate of FNBO. From time to time FNBO and
InfiBank, National Association sell and contribute their interest in such
credit card receivables to InfiBank Funding, LLC, which in turn conveys
such credit card receivables to the InfiBank Trust.
ii
ANNEX I
A. 1. Series 2000-1
Collateral Interest
2. Series 2000-3
Collateral Interest
B. 1. Series 2000-1
Class A
2. Series 2000-3
Class A
3. Series 2000-2
CTO
Class A
Class B
4. Series 2001-1
CTO
Class A
Class B
5. Series 2002-1
Class A
Class B
Class C
6. Series 2002-2
Class A
Class B
iii
