FIRST NATIONAL MASTER NOTE TRUST $349,550,000 CLASS A SERIES 2007-2 ASSET BACKED NOTES UNDERWRITING AGREEMENT
EXHIBIT 1.1
FIRST NATIONAL MASTER NOTE TRUST
November 20, 2007
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
each acting on behalf of itself and
as Representative of the several
Underwriters named in Schedule A hereto
(together, the “Representatives”)
as Representative of the several
Underwriters named in Schedule A hereto
(together, the “Representatives”)
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
$349,550,000 principal amount of Class A Series 2007-2 Asset Backed Notes (the “Notes”), to
the Underwriters (as defined hereinafter) for whom you are acting as Representatives.
The Issuer is a Delaware statutory trust formed pursuant to (a) a Trust Agreement, dated as of
October 16, 2002 (the “Trust Agreement”), between the Transferor and Wilmington Trust
Company (“WTC”), as owner trustee (the “Owner Trustee”) and (b) the filing of a
certificate of trust with the Secretary of State of Delaware on October 16, 2002. The Notes will
be issued pursuant to a Master Indenture, dated as of October 24, 2002 (as amended, the “Master
Indenture”), between the Issuer and The Bank of New York Trust Company, N.A. (successor to The
Bank of New York) (“BNYTC”), 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
the Closing Date (as defined below) (the “Indenture Supplement,” and together with the
Master Indenture, the “Indenture”).
The primary asset of the Issuer is a certificate (the “Collateral Certificate”)
representing a beneficial interest in the assets held in the 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 BNYTC (successor
to The Bank of New York), 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® and
MasterCard® 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 (as amended, 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 (as amended, 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 has prepared and filed with the Securities and Exchange Commission (the
“Commission”) in accordance with the provisions of the Securities Act of 1933 (the
“Act”), a registration statement on Form S-3 (having the registration number 333-140273),
including a form of prospectus and a form of prospectus supplement 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 Act. If any post-effective amendment to such registration
statement has been filed with respect thereto, prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective by the Commission. 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, including all material incorporated
by
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reference therein and including all information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B under the Act, is referred to in this
Agreement as the “Registration Statement.” The Registration Statement has been declared
effective by the Commission not more than three years prior to the date hereof.
The Transferor proposes to file with the Commission pursuant to Rule 424(b) under the Act
(“Rule 424(b)”) 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, together with the information referred to under the
caption “Static Pool Information” in the Prospectus Supplement regardless of whether it is
deemed a part of the Prospectus Supplement, are hereinafter referred to as the
“Prospectus”.
At or prior to 2:04 p.m. (New York City Time) on November 20, 2007 (the time the first
Contract of Sale (as defined below) was entered into as designated by the Representatives (the
“Time of Sale”), the Transferor also had prepared a Preliminary Prospectus dated November
19, 2007 with respect to such Notes (together with the Additional Information, the “Time of
Sale Information”). “Preliminary Prospectus” means, with respect to any date or time
referred to herein, the most recent preliminary Prospectus (as amended or supplemented, if
applicable), which has been prepared and delivered by the Transferor to the Representatives in
accordance with the provisions hereof, together with the information referred to under the caption
“Static Pool Information” therein regardless of whether it is deemed a part of the
Registration Statement or the Prospectus. “Additional Information” means information that
is included in any road show presentation the Transferor has approved.
If, subsequent to the Time of Sale and prior to the Closing Date, the Time of Sale Information
included an untrue statement of material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading and the Transferor and the Bank have prepared and delivered to the Underwriters a
Corrected Prospectus (as defined below), and as a result investors in the Notes elect to terminate
their existing “Contracts of Sale” (within the meaning of Rule 159 under the Act) for any
Notes, then “Time of Sale Information” will refer to the information conveyed to investors
at the time of entry into the first such new Contract of Sale in an amended Preliminary Prospectus
approved by the Transferor and the Representatives that corrects such material misstatements or
omissions (a “Corrected Prospectus”), together with the Additional Information, and
“Time of Sale” will refer to the time and date on which such new Contracts of Sale were
entered into.
As used herein, references to any “Free Writing Prospectus” shall mean a “free writing
prospectus” as defined in Rule 405 of the Act.
The Transferor and the Bank hereby agree, severally and not jointly, with the underwriters for
the Notes listed on Schedule A hereto (the “Underwriters”) as follows:
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2. Representations and Warranties of the Transferor and the Bank. Each of the
Transferor (the representations and warranties as to the Transferor being given by the Transferor)
and the Bank (the representations and warranties as to the Bank being given by the Bank) represents
and warrants to, and agrees with, the Underwriters that:
(a) The Transferor is duly organized, validly existing and in good standing as a
limited liability company under the laws of the State of 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, the
Preliminary Prospectus and the Prospectus, 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, the Preliminary Prospectus 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
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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 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 Preliminary Prospectus, 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
Preliminary Prospectus, 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.
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(i) None of the issuance and sale of the Notes, the issuance of the Collateral
Certificate or the execution and delivery by the Transferor or the Bank of this Agreement or
any 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 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 Preliminary Prospectus, 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.
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(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 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) (i) The conditions to the use of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415
under the Act, have been satisfied with respect to the Registration Statement. No stop
order suspending the effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the Commission.
(ii) As of the Closing Date, the Registration Statement, the Preliminary
Prospectus and the Prospectus, except with respect to any modification as to which
the Representatives have been notified, shall be in all substantive respects in the
form furnished to the Representatives or its counsel before such date.
(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. The Preliminary Prospectus, as of its date, as of the Time of Sale
and on the date of this Agreement conforms, and at the time of filing of the
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Preliminary Prospectus pursuant to Rule 424(b), the Preliminary 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 it does not include,
nor will include, any untrue statement of a material fact nor 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
the Preliminary Prospectus in reliance upon and in conformity with Underwriters’ Information
(as defined below). 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. Neither of such documents, as of its date, as of the date of this
Agreement and as of the Closing Date, 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 Underwriters’ Information (as defined below). Each of the Transferor and the Bank
hereby acknowledges that the statements set forth (i) on the cover page of the Prospectus
Supplement on the line across from “Price to public,” (ii) in the table listing the Class A
Underwriters and the Principal Amount of Class A Notes under the heading “Underwriting” in
the Prospectus Supplement, (iii) in the table following the second paragraph under the
heading “Underwriting” in the Prospectus Supplement and the Preliminary Prospectus
Supplement and (iv) in the penultimate paragraph under the heading “Underwriting” in the
Prospectus Supplement and the Preliminary Prospectus Supplement (such information, the
“Underwriters’ Information”) constitute the only information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus or the Preliminary
Prospectus.
(s) The Time of Sale Information at the Time of Sale did not, and at the Closing Date
will not, include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood that no
representation or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear only in the final
Prospectus); provided, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information contained
in or omitted from either the Registration Statement or the Prospectus based upon
Underwriters’ Information.
(t) Other than with respect to the Preliminary Prospectus, the Prospectus and any
Additional Information approved by the Representatives, each of the Transferor, the Bank and
the Issuer (including its agents and representatives) has not made, used, authorized or
approved and will not make, use, authorize or approve any “written communication”
(as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of
any offer to buy the Notes. The Transferor will file with the Commission any Free Writing
Prospectus used by the Transferor, the Bank or the Issuer if such filing is required by Rule
433(d) of the Act. If required by Rule 433(c)(2)(i) of the Act, each
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Free Writing Prospectus used by the Transferor, the Bank or the Issuer shall contain a
legend substantially in the form of and in compliance with Rule 433(c)(2)(i) of the Act, and
shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(u) Since the respective dates as of which information is given in the Registration
Statement, the Preliminary Prospectus 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.
(v) The computer tape of the Receivables to be created as of October 31, 2007, and made
available to the Representatives by the Servicer, will be complete and accurate in all
material respects as of the date thereof.
(w) There are no actions, proceedings or 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.
(x) 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.
(y) It is not necessary to qualify the Pooling and Servicing Agreement or the
Collateral Series Supplement under the TIA.
(z) The Transferor was not, on the date on which the first bona fide offer of the Notes
sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule
405 under the Act.
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 Underwriters, and the Underwriters, severally and not jointly, agree to purchase from
the Transferor, at a purchase price of 99.80% of the principal amount thereof, $349,550,000
aggregate principal amount of the Notes, each Underwriter to purchase the amounts shown on
Schedule A hereto.
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(b) The Transferor will cause the Issuer to deliver the Notes to the Underwriters
against payment of the purchase price in immediately available funds, drawn to the order of
the Transferor, at the office of Xxxxx Xxxx LLP, in Omaha, Nebraska at 10:00 a.m., Chicago
time, on November 29, 2007, such time being herein referred to as the “Closing
Date.” Each of the 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.
(c) Notwithstanding the foregoing, the obligation of the Transferor to sell the Notes
to the Underwriters shall be subject to the Transferor receiving letters from the applicable
Rating Agency stating that the notes designated in the Indenture Supplement as the “Class B
Asset Backed Notes, Series 2007-2” (the “Class B Notes”) shall have received ratings
of “A” and “A2,” from Standard & Poor’s Ratings Services and Xxxxx’x Investors Service,
Inc., respectively, and the notes designated in the Indenture Supplement as the “Class C
Asset Backed Notes, Series 2007-2” (the “Class C Notes”) shall have received ratings
of “BBB” and “Baa2,” from Standard & Poor’s Ratings Services and Xxxxx’x Investors Service,
Inc., respectively.
4. Offering by Underwriters.
(a) It is understood that after the Effective Date, each Underwriter proposes to offer
the Notes for sale to the public (which may include selected dealers) as set forth in the
Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in
connection with its use of Free Writing Prospectuses, including but not limited to Rules 164
and 433 of the Act.
(c) Other than the Preliminary Prospectus, Prospectus, the Additional Information and
other information approved by the Transferor, each Underwriter represents, warrants and
agrees with the Transferor and the Bank that it has not made, used, prepared, authorized,
approved or referred to and will not make, use, prepare, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Act) that constitutes an offer to
sell or solicitation of an offer to buy the Notes, including, but not limited to, any “ABS
informational and computational materials” as defined in Item 1101(a) of Regulation AB under
the Act. Notwithstanding the foregoing, the Transferor agrees that the Underwriters may
disseminate information on Bloomberg to prospective investors relating solely to (i)
information of the type identified in Rule 134 of the Act, (ii) information included in the
Preliminary Prospectus, (iii) the status of allocations and subscriptions of the Notes,
expected pricing parameters of the Notes and the yields and weighted average lives of the
Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule
433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing
Prospectus”); provided that in the case of
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the foregoing clauses (i) through (iv), other than the final pricing terms, such
Underwriter Free Writing Prospectus would not be required to be filed with the Commission.
(d) Each Underwriter severally represents, warrants and agrees with the Transferor, the
Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the
date such Underwriter Free Writing Prospectus was conveyed or delivered to any
prospective purchaser of the Notes, include any untrue statement of a material fact
or omit any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that no Underwriter makes such representation, warranty or agreement to the
extent such misstatements or omissions were the result of any inaccurate information
which was included in the Preliminary Prospectus, the Prospectus or any written
information furnished to the related Underwriter by the Transferor, the Issuer or
the Bank expressly for use therein, which information was not corrected by
information subsequently provided by the Transferor, the Issuer or the Bank to the
related Underwriter within a reasonable period of time prior to the time of use of
such Underwriter Free Writing Prospectus;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing
Prospectus prepared by it shall contain a legend substantially in the form of and in
compliance with Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any
requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be
delivered to the Transferor no later than the date of first use and, unless
otherwise agreed to by the Transferor and the related Underwriter, such delivery
shall occur no later than the close of business for the Bank (Central Time) on the
date of first use; provided, however, if the date of first use is not a Business
Day, such delivery shall occur no later than the close of business for the Bank
(Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter represents and agrees (i) that it did not enter into any Contract
of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any time that such
Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with
respect to the Notes, deliver to each investor to whom Notes are sold by it during the
period prior to the filing of the final Prospectus (as notified to such Underwriter by the
Transferor or by the Bank), prior to the applicable time of any such Contract of Sale with
respect to such investor, the Preliminary Prospectus.
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(f) In the event the Bank, the Transferor or any Underwriter becomes aware that, as of
the Time of Sale, any Time of Sale Information contains or contained any untrue statement of
material fact or omits or omitted to state any material fact necessary in order to make the
statements contained therein in light of the circumstances under which they were made, not
misleading (“Defective Information”), such Underwriter, the Bank or the Transferor,
as applicable, shall promptly notify the Representatives and, in the case of any Underwriter
giving such notice, the Transferor, of such untrue statement or omission no later than one
Business Day after discovery and the Transferor shall prepare and deliver to the
Underwriters a Corrected Prospectus. Each Underwriter shall deliver such Corrected
Prospectus to any person with whom a Contract of Sale was entered into based on such
Defective Information, and such Underwriter shall provide any such person with adequate
disclosure of the person’s rights under the existing Contract of Sale and a meaningful
ability to elect to terminate or not terminate the prior Contract of Sale and to elect to
enter into or not enter into a new Contract of Sale based on the information set forth in
the Corrected 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 transmit
the Prospectus to the Commission pursuant to Rule 424(b) by a means reasonably calculated to
result in filing with the Commission pursuant to Rule 424(b). The Transferor will not file
any amendment of the Registration Statement with respect to the Notes or supplement to the
Prospectus unless a copy has been furnished to the Representatives for their review a
reasonable time prior to the proposed filing thereof or to which the Representatives shall
reasonably object in writing. The Transferor will advise the Representatives promptly of
(i) the effectiveness of any amendment or supplementation of the Registration Statement or
Prospectus, (ii) any request by the Commission for any amendment or supplementation of the
Registration Statement or the Prospectus or for any additional information, (iii) the
receipt by the Transferor of any notification with respect to the suspension of
qualification of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purposes and (iv) the institution by the Commission of any stop
order proceeding in respect of the Registration Statement, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(b) If at any time when a prospectus relating to the Notes is required to be delivered
under the Act, any event occurs as a result of which the Preliminary Prospectus or 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 Preliminary Prospectus or 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
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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; provided, that this covenant may be satisfied by posting the
monthly investor reports for the Trust for each month in such 12-month period on a publicly
available website.
(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 Preliminary Prospectus and 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, concerning the
issue of the Notes, arranging with such clearing agency to permit the Notes to be eligible
for clearance and settlement through such clearing agency and related matters.
(g) So long as any Note is outstanding, the Transferor will furnish, or cause the
Servicer to furnish, to the Representatives copies of each certificate and the annual
statements of compliance delivered to (a) the Certificate Trustee and each Rating Agency
pursuant to Sections 3.04(b) and 3.05 of the Pooling and Servicing Agreement and independent
certified public accountant’s servicing reports furnished to the Certificate Trustee and
each Rating Agency pursuant to Sections 3.06(a) and (b) of the Pooling and Servicing
Agreement, (b) the Owner Trustee, the Indenture Trustee and each Rating Agency pursuant to
Section 3.05 of the Transfer and Servicing Agreement and independent certified public
accountant’s servicing reports furnished to the Indenture Trustee and the Rating Agencies
pursuant to Sections 3.06(a) and (b) of the Transfer and
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Servicing Agreement, and (c) the Series 2007-2 Noteholders pursuant to Sections 5.03(a)
and (d) of the Indenture Supplement, by first class mail promptly after such certificates,
statements and reports are furnished to the Certificate Trustee, the Owner Trustee, the
Indenture Trustee, the Series 2007-2 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,
the Class B Notes and the Class C 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) Until 30 days following the Closing Date, none of the Bank or any trust or other
entity originated, directly or indirectly, by the Bank (including, without limitation, the
Transferor) will, without the prior written consent of the Representatives, which shall not
be unreasonably withheld, offer, sell or contract to sell, or otherwise dispose of, directly
or indirectly, or announce the offering of, any asset-backed securities (other than the
Notes, the Class B Notes and the Class C Notes).
(b) The Bank has entered into the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Transfer and Servicing Agreement and will have entered into other
instruments to which this Agreement and the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, and the Transfer and Servicing Agreement contemplate it will be a party
on or prior to the Closing Date.
7. Conditions of the Obligations of the Underwriters. The obligation of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy of the
representations and warranties by the Transferor and the Bank herein, to the accuracy of the
statements of officers of the Transferor and the Bank made pursuant to the provisions hereof, to
the performance by the Transferor and the Bank of their respective obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to each of the date of this Agreement and the Closing Date, the
Representatives shall have received an agreed upon procedures letter or letters of Deloitte
& Touche LLP, dated on or prior to the date of the Preliminary Prospectus Supplement and the
Prospectus Supplement, as applicable, 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) Each of the Preliminary Prospectus and the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Transferor or the Representatives, shall be
contemplated by the Commission.
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(c) Subsequent to the execution and delivery of this Agreement none of the following
shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been suspended, limited or
minimum prices shall have been established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or governmental authority
having jurisdiction or any suspension of trading of any securities of the Certificate Trust,
the Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of their
Affiliates on any exchange or in the over-the-counter market; (ii) a banking moratorium
shall have been declared by Federal or state authorities; (iii) any downgrading in the
rating of any debt securities of the Certificate Trust, the Issuer, the Bank, the
Transferor, First National of Nebraska, Inc. or any of their Affiliates by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under surveillance or
review its rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible downgrading, of such
rating); (iv) the United States shall have become engaged in hostilities, there shall have
been an escalation of hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or any other substantial
national or international calamity or emergency which, in the judgment of the
Representatives, makes it impractical or inadvisable to proceed with the completion and sale
of and payment for the Notes; and (v) any material adverse change in the financial markets
for asset-backed securities in the United States which, in the Representatives’ judgment,
makes it impractical to proceed with completion of the sale of and payment for the Notes.
(d) The Representatives shall have received an opinion or opinions, dated the Closing
Date, of Xxxxx Xxxx LLP, special counsel to the Transferor and the Bank, satisfactory in
form and substance to the Representatives and their counsel to the effect that:
(i) The Transferor is a limited liability company in good standing, duly
organized and validly existing under the laws of the State of Nebraska; the Bank is
a national banking association in good standing, duly organized and validly existing
under the laws of the United States of America; and each of the Transferor and the
Bank (each referred to in this subsection (d) as an “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, the Preliminary
Prospectus 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.
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(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.
(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. §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.
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(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. §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,
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,
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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
Preliminary Prospectus and the Prospectus have 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 such firm’s 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 Preliminary
Prospectus Supplement and 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, the Collateral Certificate and the Notes
conform in all material respects to the descriptions thereof contained in the
Preliminary Prospectus and the Prospectus.
(xii) The Master Indenture has been duly qualified under the TIA and complies
as to form with the TIA and the rules and regulations of the Commission thereunder.
The Indenture Supplement is not required to be qualified under the TIA. The Issuer
is not now, and immediately following the issuance of the Notes pursuant to the
Indenture will not be, required to be registered under the Investment Company Act of
1940, as amended.
(xiii) The Pooling and Servicing Agreement need not be qualified under the TIA.
The Certificate Trust is not now, and immediately following the issuance of the
Notes pursuant to the Indenture, will not be required to be registered under the
Investment Company Act of 1940, as amended.
(xiv) For federal income tax purposes: (i) the Notes will be characterized as
debt; (ii) neither the Certificate Trust nor the Note Trust will be classified as an
association or publicly traded partnership taxable as a corporation for federal
income tax purposes; (iii) the issuance of the Notes will not adversely affect the
tax characterization as debt of any outstanding series of notes issued by the Note
Trust with respect to which an opinion of counsel was delivered at their time of
issuance that such notes would be characterized as debt and will not adversely
affect the federal income tax characterization of any outstanding series
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of investor certificates issued by the Certificate Trust; and (iv) the issuance of
the Notes will not otherwise constitute an event in which a gain or loss would be
recognized by any holders of any outstanding series of notes issued by the Note
Trust or any outstanding series of investor certificates issued by the Certificate
Trust.
(xv) Each of the Indenture and the Administration Agreement constitutes the
legal, valid and binding obligation of the Issuer under the laws of the State of
Nebraska, subject to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws affecting
creditors’ rights generally, (B) the effect of general principles of equity
including (without limitation) concepts of materiality, reasonableness, good faith,
fair dealing (regardless of whether considered and applied in a proceeding in equity
or at law), and also to the possible unavailability of specific performance or
injunctive relief, (C) the unenforceability under certain circumstances of
provisions indemnifying a party against liability or requiring contribution from a
party for liability where such indemnification or contribution is contrary to public
policy and (D) certain remedial provisions of the Indenture may be unenforceable in
whole or in part under the UCC, but the inclusion of such provisions does not render
the other provisions of the Indenture invalid and notwithstanding that such
provisions may be unenforceable in whole or in part, the Indenture Trustee, on
behalf of the Noteholders, will be able to enforce the remedies of a secured party
under the UCC.
(xvi) Each of the Registration Statement, as of its effective date, the
Preliminary Prospectus and the Prospectus, each 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, the Preliminary Prospectus or the
Prospectus.
(xvii) If the FDIC were appointed as conservator or receiver for the Bank (a)
the FDIC regulation entitled “Treatment by the Federal Deposit Insurance Corporation
as Conservator or Receiver of Financial Assets Transferred by an Insured Depository
Institution in Connection with a Securitization or Participation,” 12 CFR §360.6
(the “Rule”) would be applicable to the transfers of Receivables by Bank to
Transferor under the Receivables Purchase Agreement, (b) under the Rule, the FDIC
could not, by exercise of its authority to disaffirm or repudiate contracts under 12
U.S.C. §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, and (c)
neither the FDIC (acting for itself as a creditor or as a representative of the Bank
or its shareholders or creditors) nor any creditor of
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the Bank would have the right, under any bankruptcy or insolvency law
applicable in the conservatorship or receivership of the Bank, other than Section
11(c) of the Federal Deposit Insurance Act, as amended, 12 U.S.C. § 1811 et seq.
(the “FDIA”), to avoid transfers of Receivables by the Bank to the
Transferor, to recover the Receivables, or to require the Receivables to be turned
over to the FDIC or such creditor and (d) there is no power, other than powers
referred to in the Rule, that is exercisable by the FDIC as conservator or receiver
for the Bank that would permit the FDIC as such conservator or receiver to reclaim
or recover the Receivables from the Transferor or the Certificate Trust or to
recharacterize the Receivables transferred by the Bank to the Transferor as property
of the Bank or of the conservatorship or receivership for the Bank.
(xviii) Certain matters regarding and related to the limited liability company
agreement of the Transferor.
(xix) 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.
(xx) 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.
(xxi) 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.
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, the Preliminary
Prospectus 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 Preliminary Prospectus,
as of its date, as of the Time of Sale and as of the Closing Date, or the Prospectus, as of
the date hereof and as of the Closing Date, 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, the Preliminary Prospectus or the Prospectus).
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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 Xxxxx Xxxxx LLP, special counsel for
the Underwriters, a negative assurance letter, 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, the
Preliminary Prospectus 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 Preliminary 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 Preliminary Prospectus and the Prospectus or as described in
such certificate.
(g) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., counsel to the Owner Trustee, dated the Closing Date, satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly existing as a banking
corporation in good standing under the laws of the State of Delaware.
(ii) The Owner Trustee has the power and authority to execute, deliver and
perform the Trust Agreement.
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(iii) The Trust Agreement has been duly authorized, executed and delivered by
the Owner Trustee and constitutes a legal, valid and binding obligation of the Owner
Trustee, enforceable against the Owner Trustee in accordance with its terms.
(iv) Neither the execution, delivery or performance by the Owner Trustee of
the Trust Agreement, nor the consummation of the transactions by the Owner Trustee
contemplated thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the United States of
America governing the trust powers of the Owner Trustee (other than the filing of
the certificate of trust with the Delaware Secretary of State).
(v) Neither the execution, delivery and performance, by the Owner Trustee, of
the Trust Agreement, nor the consummation of the transactions by the Owner Trustee
contemplated thereby, is in violation of the charter or bylaws of the Owner Trustee
or of any law, governmental rule or regulation of the State of Delaware or of the
United States of America governing trust powers of the Owner Trustee or, to such
counsel’s knowledge, without independent investigation, any indenture, mortgage,
bank credit agreement, note or bond purchase agreement, long-term lease, license or
other agreement or instrument to which it is a party or by which it is bound or, to
such counsel’s knowledge, without independent investigation, of any judgment or
order applicable to the Owner Trustee.
(vi) To such counsel’s knowledge, without independent investigation, there are
no pending or threatened actions, suits or proceedings affecting the Owner Trustee
before any court or other governmental authority which, if adversely determined,
would materially and adversely affect the ability of the Owner Trustee to carry out
the transactions contemplated by the Trust Agreement.
(h) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel to the Issuer, dated the Closing Date, satisfactory in form
and substance to the Representative and its counsel, to the effect that:
(i) The Issuer has been duly formed and is validly existing in good standing as
a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. 3801 et seq.
(referred to in this subsection (h) as the “Trust Act”).
(ii) The Trust Agreement is a legal, valid and binding obligation of the
Transferor and the Owner Trustee, enforceable against the Transferor and the Owner
Trustee, in accordance with its terms.
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(iii) Under the Trust Act and the Trust Agreement, the execution and delivery
of the Transfer and Servicing Agreement and the Indenture, the issuance of the
Notes, and the granting of the Collateral to the Indenture Trustee as security for
the Notes has been duly authorized by all necessary trust action on the part of the
Issuer.
(iv) Under the Trust Act and the Trust Agreement, the Issuer has (i) the power
and authority to execute, deliver and perform its obligations under the
Administrative Agreement, the Indenture and the Transfer and Servicing Agreement
(collectively referred to in this subsection (h) as the “Trust Documents”)
and the Notes, and (ii) duly authorized, executed and delivered such agreements and
obligations.
(v) Neither the execution, delivery and performance by the Issuer of the Trust
Documents or the Notes, nor the consummation by the Issuer of any of the
transactions by the Issuer contemplated thereby, requires the consent or approval
of, the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware, other
than the filing of the certificate of trust with the Delaware Secretary of State
which certificate of trust has been duly filed and the filing of any financing
statements with the Delaware Secretary of State in connection with the Indenture.
(vi) Neither the execution, delivery and performance by the Issuer of the Trust
Documents, nor the consummation by the Issuer of the transactions contemplated
thereby, is in violation of the Trust Agreement or of any law, rule, or regulation
of the State of Delaware applicable to the Issuer.
(vii) Under Section 3805(b) of the Act, no creditor of the holder of the
beneficial interest in the Trust shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the property of the
Issuer except in accordance with the terms of the Trust Agreement.
(viii) Under Section 3808(a) and (b) of the Act, the Issuer may not be
terminated or revoked by the holder of the beneficial interest in the Issuer, and
the dissolution, termination or bankruptcy of the holder of the beneficial interest
in the Issuer shall not result in the termination or dissolution of the Issuer,
except to the extent otherwise provided in the Trust Agreement.
(ix) The Owner Trustee is not required to hold legal title to the Trust Estate
in order for the Issuer to qualify as a statutory trust under the Act.
(i) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP,
counsel to the Indenture Trustee dated the Closing Date, satisfactory in form and substance
to the Representatives and their counsel, to the effect that:
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(i) The Indenture Trustee is organized and validly existing as a national
banking association in good standing under the laws of the United States of America
and is authorized and qualified to accept the trusts imposed by the Indenture and to
act as Indenture Trustee under the Indenture.
(ii) The acknowledgment by the Indenture Trustee of the Transfer and Servicing
Agreement has been duly authorized, executed and delivered by the Indenture Trustee.
The Indenture Trustee has duly authorized, executed and delivered the Indenture.
Assuming the due authorization, execution and delivery thereof by the other parties
thereto, the Indenture is the legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with its terms,
subject to bankruptcy and insolvency laws and general principles of equity.
(iii) The Indenture Trustee has duly executed and authenticated the Notes.
(iv) The Indenture Trustee is duly authorized and empowered to exercise trust
powers under applicable law and to perform under the Transaction Documents to which
it is a party, or which it has acknowledged.
(v) None of (x) the execution and authentication of the Notes, (y) the
acknowledgement of the Transfer and Servicing Agreement or (z) the execution,
delivery and performance of the Indenture by the Indenture Trustee conflicts with or
will result in a violation of (A) any law or regulation of the United States of
America 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 having jurisdiction over the
banking or trust powers of the Indenture Trustee is required in connection with the
execution and delivery by the Indenture Trustee of the Indenture or the performance
by the Indenture Trustee of the terms of the Indenture or the acknowledgement of the
Transfer and Servicing Agreement.
(j) The Representatives shall have received an opinion of Xxxxxxx and Xxxxxx LLP,
counsel to the Certificate Trust Trustee dated the Closing Date, satisfactory in form and
substance to the Representatives and their counsel, to the effect that:
(i) The Certificate Trustee is organized and validly existing as a national
banking association in good standing under the laws of the United States of America
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.
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(ii) The Certificate Trust Trustee has duly authorized, executed and delivered
the Pooling and Servicing Agreement. Assuming the due authorization, execution and
delivery thereof by the other parties thereto, the Pooling and Servicing Agreement
is the legal, valid and binding obligation of the Certificate Trust Trustee,
enforceable against the Certificate Trust Trustee in accordance with its terms,
subject to bankruptcy and insolvency laws and general principles of equity.
(iii) The Certificate Trust Trustee has duly executed, authenticated and
delivered the Collateral Certificate.
(iv) The Certificate Trust Trustee is duly authorized and empowered to exercise
trust powers under applicable law and to perform under the Transaction Documents to
which it is a party or which it has acknowledged.
(v) None of (y) the execution and authentication of the Collateral Certificate,
and (z) the execution, delivery and performance of the Pooling and Servicing
Agreement by the Certificate Trust Trustee conflicts with or will result in a
violation of (A) any law or regulation of the United States of America 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 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.
(l) The Representatives shall have received evidence satisfactory to the
Representatives that the Notes shall have obtained the following ratings, Aaa by Xxxxx’x
Investors Service, Inc. and AAA 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
Preliminary Prospectus and the Prospectus.
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(n) The Representatives shall have received opinions, dated as of the Closing Date, of
Xxxxx Xxxx LLP, special counsel to the Transferor and the Bank in Nebraska, Illinois and New
York, and Davenport, Evans, Xxxxxxx & Xxxxx, L.L.P., special counsel to the Transferor and
the Bank in South Dakota, with respect to such state tax matters as the Representatives
shall reasonably request in a manner consistent with prior public note issuances by the
Issuer.
(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 and the Prospectus,
including any Corrected Prospectus, and, 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
(including any Corrected Prospectus), the Transaction Documents and the furnishing to the
Representatives of copies of the Preliminary Prospectus and the Prospectus (including any Corrected
Prospectus) as herein provided, (vi) constituting the fees and disbursements of the
Representatives’ counsel and the Bank’s and the Transferor’s counsel and accountants, (vii) payable
to each Rating Agency in connection with the ratings of the Notes and (viii) in connection with the
structuring and marketing of the Notes (and any other miscellaneous expenses in connection
therewith); provided that the Representatives shall not be obligated to pay any expenses of a
defaulting Representative.
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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 (i) the
Registration Statement, (ii) the Preliminary Prospectus, (iii) the Prospectus or (iv) any
Additional Information, 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
Underwriters’ Information; provided further, that such indemnity with
respect to any Corrected Statement (as defined below) in such Prospectus shall not inure to
the benefit of any Underwriter (or related Indemnified Party) from whom the person asserting
any loss, claim, damage or liability purchased the Notes that are the subject thereof if (i)
the untrue statement or omission of a material fact contained in a Prospectus was corrected
(a “Corrected Statement”) in a Corrected Prospectus, (ii) the Transferor gave such
Underwriter prompt written notice of the need for a Corrected Prospectus, and (iii) the
Transferor furnished sufficient copies of such Corrected Prospectus to such Underwriter
sufficiently prior to the delivery of the confirmation of the sale of such Notes so as to
allow a reasonable time for such Underwriter to deliver such Corrected Prospectus to such
investor, but such Underwriter did not furnish such Corrected Prospectus to such investor
prior to the delivery of such confirmation. This indemnity agreement will be in addition to
any liability which the Transferor or the Bank may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Transferor, its directors and officers and each Person who controls the Transferor
within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, against any
losses, claims, damages or liabilities to which the Transferor may become subject, under the
Act, the 1934 Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus or the Preliminary
Prospectus, or arise out of or are based upon the omission
-28-
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 such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the Underwriters’
Information; 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
material 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 party will not be liable to such
-29-
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 such 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 it 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.
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(e) The obligations of the Transferor and the Bank under this Section shall be in
addition to any liability which the Transferor or the Bank may otherwise have and shall
extend, upon the same terms and conditions, to each Person, if any, who controls any
Underwriter within the meaning of the Act or the 1934 Act and each director, officer,
employee, and agent of an Underwriter and each such Person shall have the same rights to
contribution as the Underwriter; and the obligations of any Underwriter under this Section
shall be in addition to any liability that such Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Transferor or the Bank,
to each officer of the Transferor or the Bank who has signed the Registration Statement and
to each Person, if any, who controls the Transferor or the Bank within the meaning of the
Act or the 1934 Act and each director, officer, employee, and agent of Transferor or Bank
and each such Person shall have the same rights to contribution as the Transferor or Bank,
as applicable.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Transferor and the Bank or
their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriters, the Transferor, the Bank or any of their respective
representatives, officers or directors or any controlling person, and will survive delivery of and
payment for the Notes. If this Agreement is terminated or if for any reason other than default by
the Underwriters the purchase of the Notes by the Underwriters is not consummated, the Transferor
and the Bank shall remain responsible for the expenses to be paid by them pursuant to Section 8 and
the respective obligations of the Transferor, the Bank and the Underwriters pursuant to Section 9
shall remain in effect.
11. Obligations of the Underwriters.
(a) Each Underwriter (severally and not jointly) 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.
(b) Each Underwriter further represents, warrants and agrees that (i) it has
communicated and 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 Xxx 0000 (“FSMA”)) received by it in connection with
the issue or sale of any Notes in circumstances under which Section 21(1) of the FSMA does
not apply to the Issuer; and (ii) it has complied and 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.
-31-
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:
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx Xxxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx Xxxxxxxxx
X.X. Xxxxxx Securities Inc.
ABS & MBS Originations
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: R. Xxxx Xxxxxxxxx
ABS & MBS Originations
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: R. Xxxx Xxxxxxxxx
14. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN AN ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTION DOCUMENTS OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
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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.
17. Absence of Fiduciary Relationship. The Transferor and the Bank acknowledge and
agree that:
(a) the Underwriters have been retained solely to act as underwriters in connection
with the sale of the Notes and that no fiduciary, advisory or agency relationship between
the Transferor, the Bank and the Underwriters has been created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether the Underwriters have
advised or are advising the Transferor or the Bank on other matters;
(b) the price of the Notes set forth in this Agreement was established by the
Transferor and the Bank following discussions and arms-length negotiations with the
Underwriters, the Transferor and the Bank are capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) they have been advised that the Underwriters and their affiliates are engaged in a
broad range of transactions which may involve interests that differ from those of the
Transferor and the Bank and that the Underwriters have no obligation to disclose such
interests and transactions to the Transferor or the Bank by virtue of any fiduciary,
advisory or agency relationship; and
(d) they waive, to the fullest extent permitted by law, any claims they may have
against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty
and agree that the Underwriters shall have no liability (whether direct or indirect) to the
Transferor or the Bank in respect of such a fiduciary duty claim or to any person asserting
a fiduciary duty claim on behalf of or in right of the Transferor or the Bank, including
stockholders, employees or creditors of the Transferor and the Bank.
[Signatures Follow on Next Page]
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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 | /c/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President | |||
| FIRST NATIONAL BANK OF OMAHA |
||||
| By | /c/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Senior Vice President | |||
| The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof GREENWICH CAPITAL MARKETS, INC. as Representative of the Underwriters set forth herein |
||||||
| By | /c/ Xxxxxxx Xxxxxxx | |||||
| Name: | Xxxxxxx Xxxxxxx | |||||
| Title: | Senior Vice President | |||||
| X.X. XXXXXX SECURITIES INC. as Representative of the Underwriters set forth herein |
||||||
| By | /c/ Xxxx X. Xxxxx | |||||
| Name: | Xxxx X. Xxxxx | |||||
| Title: | Executive Director | |||||
S-1
SCHEDULE A
Class A Notes
| Principal Amount of | ||||
| Underwriters | Class A Notes | |||
Greenwich Capital Markets, Inc. |
$ | 116,517,000 | ||
X.X. Xxxxxx Securities Inc. |
$ | 116,517,000 | ||
Banc of America Securities LLC |
$ | 116,516,000 | ||
Total |
$ | 349,550,000 | ||
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