EXHIBIT 1.1
FIRST NATIONAL MASTER NOTE TRUST
$[______ ______] CLASS A [FLOATING RATE] [___%] ASSET BACKED
NOTES, SERIES [200_-_]
$[_____________] CLASS B [FLOATING RATE] [___%] ASSET BACKED
NOTES, SERIES [200_-_]
$[_____________] CLASS C [FLOATING RATE] [___%] ASSET BACKED
NOTES, SERIES [200_-_]
UNDERWRITING AGREEMENT
________ [__], 200__
[ ]
As Representative of the Underwriters set forth herein
[ ]
As Representative of the Underwriters set forth herein
Ladies and Gentlemen:
1. Introductory. First National Funding LLC ("FNF LLC" or the
"Transferor"), a limited liability company formed under the laws of the State of
Nebraska, proposes to cause First National Master Note Trust (the "Issuer") to
issue and sell $[________] principal amount of Class A [Floating Rate] [___%]
Asset Backed Notes, Series [_______] (the "Class A Notes"), $[__________]
principal amount of Class B [Floating Rate] [__%] Asset Backed Notes, Series
[______] (the "Class B Notes") and $[__________] principal amount of Class C
[Floating Rate] [___%] Asset Backed Notes, Series [______] (the "Class C Notes",
and together with the Class A Notes and the Class B Notes, the "Notes") to the
Underwriters (as defined hereinafter) for whom you are acting as Representatives
(the "Representatives").
The Issuer is a Delaware statutory business trust formed pursuant to
(a) a Trust Agreement, dated as of [_________], 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 [_______], 2002. The Notes will be issued
pursuant to a Master Indenture, dated as of [_______], 2002 (the "Master
Indenture"), between the Issuer and The Bank of New York ("BONY"), as indenture
trustee (the "Indenture Trustee"), as supplemented by the Series [_____]
Indenture Supplement with respect to the Notes to be dated as of [__________],
[____] (the "Indenture Supplement," and together with the Master Indenture, the
"Indenture").
Initially, the primary asset of the Issuer will be a certificate (the
"Collateral Certificate") representing a beneficial interest in the assets held
in the First Bankcard Master Credit Card Trust (the "Certificate Trust"), issued
pursuant to the Second Amended and Restated Pooling and Servicing Agreement,
dated as of [ ], 2002 (as amended and supplemented, the "Pooling and Servicing
Agreement"), among FNF LLC, First National Bank of Omaha, a national banking
association (the "Bank"), as servicer (the "Servicer") and BONY, as trustee (the
"Certificate Trust Trustee"), and the Collateral Series Supplement, dated as of
[_________], 2002, to the Pooling and Servicing Agreement (the "Collateral
Supplement" and together with the Pooling and Servicing Agreement, the "Pooling
and Servicing Agreement"). The assets of the Certificate Trust include, among
other things, certain amounts due (the "Receivables") on a portfolio of Visa(R)
and MasterCard(R) revolving credit card accounts owned by the Bank (the
"Accounts").
The Receivables are transferred to the Certificate Trust pursuant to
the Pooling and Servicing Agreement. The Receivables transferred to the
Certificate Trust by the Transferor are acquired by the Transferor from the Bank
pursuant to a Receivables Purchase Agreement, dated as of [_______], 2002 (the
"Receivables Purchase Agreement"), between the Transferor and the Bank. The
Collateral Certificate will be transferred by the Transferor to the Issuer
pursuant to the Transfer and Servicing Agreement, dated as of [______], 2002
(the "Transfer and Servicing Agreement"), among the Transferor, the Bank, as
Servicer, and the Issuer.
The Bank has agreed to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the Transfer and
Servicing Agreement, the Master Indenture and each indenture supplement for each
series of Notes issued by the Issuer, pursuant to an Administration Agreement,
dated as of [______], 2002 (the "Administration Agreement"), between the Bank,
as administrator (in such capacity, the "Administrator"), and the Issuer. The
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and the
Administration Agreement are referred to herein, collectively, as the
"Transaction Documents."
This Underwriting Agreement is referred to herein as this "Agreement."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Transaction Documents.
The Transferor and the Bank hereby agree, severally and not jointly,
with the underwriters for the Class A Notes listed on Schedule A hereto (the
"Class A Underwriters") the underwriters for the Class B Notes listed on
Schedule A hereto (the "Class B Underwriters") and the underwriters for the
Class C Notes listed on Schedule A hereto (the "Class C Underwriters" and
together with the Class A Underwriters and the Class B Underwriters, the
"Underwriters") as follows:
2. Representations and Warranties of the Transferor and the Bank. Each
of the Transferor (the representations and warranties as to the Transferor being
given by the Transferor)
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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 (as hereinafter defined) and Prospectus (as hereinafter
defined), and to execute, deliver and perform its obligations under
this Agreement, the Transfer and Servicing Agreement, the Pooling and
Servicing Agreement, the Receivables Purchase Agreement and the Trust
Agreement and to authorize the issuance of the Notes and the Collateral
Certificate.
(b) The Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, and has all requisite power, authority and legal right to own
its property and conduct its credit card business as such properties
are presently owned and such business is presently conducted, and
conduct its business as described in the Registration Statement and
Prospectus, and to own the Accounts and to execute, deliver and perform
its obligations under this Agreement, the Receivables Purchase
Agreement, the Transfer and Servicing Agreement, the Pooling and
Servicing Agreement and the Administration Agreement.
(c) The execution, delivery and performance of each of the
Transaction Documents to which it is a party, and the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions contemplated hereby and thereby, and with respect to the
Transferor, the issuance of the Notes and the Collateral Certificate,
have been duly and validly authorized by the Transferor and the Bank,
as applicable, by all necessary action on the part of the Transferor
and the Bank, as applicable.
(d) This Agreement has been duly authorized, executed and
delivered by the Transferor and the Bank.
(e) Each of the Transaction Documents has been, or on or
before the Closing Date will be, executed and delivered by the
Transferor and/or the Bank, as applicable, and when executed and
delivered by the other parties thereto, will constitute a legal, valid
and binding agreement of the Transferor and/or the Bank, as applicable,
enforceable against the Transferor and/or the Bank, as applicable, in
accordance with its terms, except, in each case, to the extent that (i)
the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, receivership or other similar laws now or
hereafter in effect relating to creditors' or other obligees' rights
generally or the rights of creditors or other obligees of institutions
insured by the FDIC, (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) certain remedial
provisions of the Indenture may be unenforceable in whole or in part
under the UCC, but the inclusion of such provisions does not render the
other provisions of the Indenture invalid and notwithstanding that such
provisions may be unenforceable in whole or in part, the Indenture
Trustee, on
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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
Prospectus and Registration Statement, as amended or supplemented.
(g) The Collateral Certificate will be issued pursuant to the
terms of the Pooling and Servicing Agreement and, when executed by the
Certificate Trustee in accordance with the Pooling and Servicing
Agreement, will be validly issued and outstanding and will constitute
the legal, valid and binding obligations 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 will be in the form contemplated by the Pooling
and Servicing Agreement, and the Collateral Certificate and the Pooling
and Servicing Agreement will conform to the descriptions thereof
contained in the Prospectus and the Registration Statement, as amended
or supplemented.
(h) Neither the Transferor nor the Bank is in violation of any
Requirement of Law or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other instrument to which it is a party or by which it is
bound or to which any of its property is subject, which violation or
defaults separately or in the aggregate would have a material adverse
effect on the Issuer, the Certificate Trust, the Transferor or the
Bank.
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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 to the consummation of the transactions
contemplated hereunder and thereunder, or to the fulfillment of the
terms hereof and thereof have been or will have been obtained on or
before the Closing Date.
(k) The Bank has authorized the conveyance of the Receivables
to the Transferor and the Certificate Trust or, after the Certificate
Trust Termination Date, the Issuer, as applicable; the Transferor has
authorized the conveyance of the Receivables to the Certificate Trust
or, after the Certificate Trust Termination Date, the Issuer; the
Transferor has authorized the Certificate Trust to issue the Collateral
Certificate; and the Transferor has authorized the Issuer to issue and
sell the Notes.
(l) All actions required to be taken by the Transferor or the
Bank as a condition to the offer and sale of the Notes as described
herein or the consummation of any of the transactions described in the
Prospectus and the Registration Statement have been or, prior to the
Closing Date, will be taken.
(m) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies as to form
with the TIA and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
(n) 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
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earlier date, such representation or warranty is true and correct at
and as of such earlier date.
(o) 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 date, such representation or warranty
is true and correct at and as of such earlier date.
(p) The Transferor agrees it has not granted, assigned,
pledged or transferred and shall not grant, assign, pledge or transfer
to any Person a security interest in, or any other right, title or
interest in, the Receivables or the Collateral Certificate, except as
provided in the 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.
(q) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any
Person a security interest in, or any other right, title or interest
in, the Receivables, except as provided in the Pooling and Servicing
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.
(r) A registration statement on Form S-3 (Nos. 333-86574-00
and 333-86574-01), including a form of prospectus and such amendments
thereto as may have been filed prior to the date hereof, relating to
the Notes and the offering thereof in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed
with, and has been declared effective by, the Commission. If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective
by the Commission. For purposes of this Agreement, "Effective Time"
means the date and time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission, and "Effective Date" means the date of the
Effective Time. Such registration statement, as amended at the
Effective Time, is hereinafter referred to as the "Registration
Statement." The Transferor proposes to file with the Commission
pursuant to Rule 424(b) ("Rule 424(b)") under the Act a supplement (the
"Prospectus Supplement") to the prospectus included in the Registration
Statement (such prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with the
Commission pursuant to
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Rule 424(b), is hereinafter referred to as the "Base Prospectus")
relating to the Notes and the method of distribution thereof. The Base
Prospectus and the Prospectus Supplement, together with any amendment
thereof or supplement thereto, are hereinafter referred to as the
"Prospectus".
(s) On the Effective Date, the Registration Statement did or
will 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 or 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 not misleading, and
on the date of this Agreement, the Registration Statement and the
Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) the Registration Statement and the Prospectus
will conform, in all material respects with the requirements of the Act
and the Rules and Regulations and the TIA and the rules and regulations
thereunder and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from either of such documents
based upon written information furnished to the Transferor or the Bank
by the Underwriters specifically for use therein. Each of the
Transferor and the Bank hereby acknowledges that (i) the only
information provided by the Class A Underwriters for inclusion in the
Registration Statement and the Prospectus is set forth on the cover
page of the Prospectus Supplement in the table under the heading "Class
A Notes" and on the line across from "Price to public," in the table
listing the Class A Underwriters and the Principal Amount of Class A
Notes under the heading "Underwriting" in the Prospectus Supplement, in
the table following the third paragraph under the heading
"Underwriting" in the Prospectus Supplement in the column labeled
"Class A Notes", (the "Class A Underwriters' Information"), (ii) the
only information provided by the Class B Underwriters for inclusion in
the Registration Statement and the Prospectus is set forth on the cover
page of the Prospectus Supplement in the table under the heading "Class
B Notes" and on the line across from "Price to public," in the table
listing the Class B Underwriters and the Principal Amount of Class B
Notes and under the heading "Underwriting" in the Prospectus
Supplement, in the table following the third paragraph under the
heading "Underwriting" in the Prospectus Supplement in the column
labeled "Class B Notes", [and in the final paragraph under the heading
"Underwriting" in the Prospectus Supplement (the "Class B Underwriters'
Information")] and (iii) the only information provided by the Class C
Underwriters for inclusion in the Registration Statement and the
Prospectus is set forth on the cover page of the Prospectus Supplement
in the table under the heading "Class C Notes" and on the line across
from "Price to public," in the table listing the Class C Underwriters
and the Principal Amount of Class C Notes and under the heading
"Underwriting" in the Prospectus Supplement, in the table following the
third paragraph under the heading "Underwriting" in the Prospectus
Supplement in the column labeled "Class C Notes", [and in the final
paragraph under the heading "Underwriting" in the Prospectus Supplement
(the "Class C Underwriters' Information")].
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(t) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, there has not been any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations, of the Bank or the Transferor.
(u) The computer tape of the Receivables to be created as of
[______, __], and made available to the Representatives by the
Servicer, will be complete and accurate in all material respects as of
the date thereof.
(v) There are no actions, proceedings of investigations
pending or, to the best of its knowledge, threatened against or
affecting the Transferor or the Bank (or any basis therefor known to
the Transferor or the Bank) (i) asserting the invalidity of any of the
Transaction Documents, (ii) seeking to prevent the issuance of the
Notes or the consummation by the Transferor or the Bank of any of the
transactions contemplated by the Transaction Documents, or (iii) which,
individually or in the aggregate, if adversely decided, would
materially and adversely affect the business, financial condition or
results of operations of the Transferor, the Issuer, the Certificate
Trust or the Bank or of the Transferor's or the Bank's ability to
consummate the transactions contemplated by the Transaction Documents.
(w) 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.
(x) It is not necessary to qualify the Pooling and Servicing
Agreement or the Collateral Series Supplement under the Trust Indenture
Act of 1939.
(y) Neither the Bank, the Transferor, the issuance and sale of
the Notes nor the activities of the Certificate Trust or the Issuer
pursuant to the Transaction Documents will cause the Bank, the
Transferor, the Issuer or the Certificate Trust to be an "investment
company" or under the "control" of an "investment company" as such
terms are defined in the 1940 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 Class A
Underwriters, and the Class A Underwriters agree to purchase from the
Transferor, at a purchase price of [______]% of the principal amount
thereof, $[________] aggregate principal amount of the Class A Notes,
each Class A Underwriter to purchase the amounts shown on Schedule A
hereto.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class B
Underwriters, and the Class B Underwriters agree to purchase from
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the Transferor, at a purchase price of [______]% of the principal
amount thereof, $[__________] aggregate principal amount of the Class B
Notes, each Class B Underwriter to purchase the amounts shown on
Schedule A hereto.
(c) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Transferor agrees to sell to the Class C
Underwriters, and the Class C Underwriters agree to purchase from the
Transferor, at a purchase price of [______]% of the principal amount
thereof, $[__________] aggregate principal amount of the Class C Notes,
each Class C Underwriter to purchase the amounts shown on Schedule A
hereto.
(d) The Transferor will cause the Issuer to deliver the Notes
to the Underwriters against payment of the purchase price in
immediately available funds, drawn to the order of the Transferor, at
the office of [____________], in [____________] at 10:00 a.m., Chicago
time, on [____________], [____], such time being herein referred to as
the "Closing Date." Each of the Class A Notes, the Class B Notes and
the Class C Notes so to be delivered shall be represented by one or
more definitive notes registered in the name of Cede & Co., as nominee
for The Depository Trust Company. The Notes will be available for
inspection, checking and packaging by the Underwriters at the office at
which the Notes are to be delivered in Omaha, Nebraska no later than
4:00 p.m., Chicago time, on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Notes for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Transferor. The Transferor agrees with the
Underwriters that:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the
amount of Notes covered thereby and the terms thereof not otherwise
specified in the Base Prospectus, the price at which such Notes are to
be purchased by the Underwriters, the initial public offering price,
the selling concessions and allowances, and such other information as
the Transferor deems appropriate. The Transferor will transmit the
Prospectus, including such Prospectus Supplement, to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in
filing with the Commission pursuant to Rule 424(b). The Transferor will
not file any amendment of the Registration Statement with respect to
the Notes or supplement to the Prospectus unless a copy has been
furnished to the Representatives for their review a reasonable time
prior to the proposed filing thereof or to which 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)
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the institution by the Commission of any stop order proceeding in
respect of the Registration Statement, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Transferor promptly will notify the Representatives of such event
and prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Underwriters' consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
(c) As soon as practicable, the Transferor will cause the
Issuer to make generally available to the Noteholders an earnings
statement or statements of the Issuer covering a period of at least 12
months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(d) The Transferor will furnish to the Representatives and
their counsel, without charge, copies of the Registration Statement
(one of which will be signed and will include all exhibits), the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representatives reasonably request. The Transferor will pay the
expenses of printing or other production of all documents relating to
the offering of the Notes.
(e) The Transferor will endeavor to qualify the Notes for sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and the determination of the
eligibility for investment of the Notes under the laws of such
jurisdictions as the Representatives may designate and will continue
such qualifications in effect so long as required for the distribution
of the Notes; provided, however, that the Transferor shall not be
obligated to qualify to do business in any jurisdiction where such
qualification would subject the Transferor to general or unlimited
service of process in any jurisdiction where it is not now so subject.
The Transferor will promptly advise the Underwriters of the receipt by
the Transferor of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose.
(f) The Transferor will list the Notes on the [Luxembourg
Stock Exchange] and the Transferor will use its best efforts to
maintain such listing for as long as any of the Notes are outstanding;
provided, however, if such listing becomes impossible to maintain, the
Transferor will use its best efforts to obtain, and will thereafter use
its best efforts to maintain a quotation for, or listing of, the Notes
on such other exchange as is
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commonly used for the quotation or listing of debt securities as they
may, with the approval of the Representatives, decide.
(g) The Transferor will furnish from time to time copies of
the Prospectus and any and all documents, instruments, information and
undertakings (in addition to any already published or lodged with the
[Luxembourg Stock Exchange]) and publish all advertisements or other
material and comply with any other requirements of the [Luxembourg
Stock Exchange] that may be necessary in order to effect and maintain
such listing.
(h) The Transferor will, and will cause the Certificate Trust
and Issuer to, assist the Representatives in making arrangements with
DTC, Euroclear and Clearstream, Luxembourg concerning the issue of the
Notes, arranging with such clearing agency to permit the Notes to be
eligible for clearance and settlement through such clearing agency and
related matters.
(i) 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), (b) the Owner Trustee, the
Indenture Trustee and each Rating Agency pursuant to Section 3.05 of
the Transfer and Servicing Agreement and independent certified public
accountant's servicing reports furnished to the Indenture Trustee and
the Rating Agencies pursuant to Sections 3.06(a) and (b) of the
Transfer and Servicing Agreement, and (c) the Series [200_-_]
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 [200_-_] Noteholders
or the Rating Agencies, as the case may be.
(j) 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.
(k) 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
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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.
(l) 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.
(m) 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).
(n) 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.
(o) The Transferor will enter 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, offer, sell or contract
to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any asset-backed securities (other than the Notes).
(b) The Bank, as Servicer, shall cause its computer records
relating to the Receivables to be marked (i) prior to the Certificate
Trust Termination Date, in accordance with Section 2.01 of the Pooling
and Servicing Agreement to show the Certificate Trust's absolute
ownership of the Receivables, and from and after the Closing Date the
Bank shall not take any action inconsistent with the Certificate
Trust's ownership of such Receivables, other than as permitted by the
Pooling and Servicing Agreement, and (ii) as of and after the
Certificate Trust Termination Date, in accordance with Section 2.01 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,
-12-
the Bank shall not take any action inconsistent with the Issuer's
ownership of such Receivables, other than as permitted by the Transfer
and Servicing Agreement.
(c) The Bank will enter into the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, the Transfer and
Servicing Agreement and other instruments to which this Agreement and
the Receivables Purchase Agreement, the Pooling and Servicing
Agreement, and the Transfer and Servicing Agreement contemplate it will
be a party on or prior to the Closing Date.
7. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties by the Transferor and the Bank
herein, to the accuracy of the statements of officers of Transferor and the Bank
made pursuant to the provisions hereof, to the performance by the Transferor and
the Bank of their respective obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of this Agreement, the
Representatives shall have received an agreed upon procedures letter,
dated the date of this Agreement, of [_____________], confirming that
they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder, which
letter shall be substantially in the form heretofore agreed to and
otherwise in form and in substance satisfactory to the Representatives
and their counsel.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Transferor or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement
none of the following shall have occurred: (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Certificate Trust, the
Issuer, the Transferor, First National of Nebraska, Inc. or the Bank
which, in the judgment of the Representatives materially impairs the
investment quality of the Notes, (ii) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended, limited or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction 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;
(iii) a banking moratorium shall have been declared by Federal or state
authorities; (iv) 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
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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); (v) the United States shall have become engaged in
hostilities, there shall have been an escalation of hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or any other substantial
national or international calamity or emergency which, in the judgment
of the Representatives, the effect of such hostilities, escalation,
declaration or other calamity or emergency makes it impractical or
inadvisable to proceed with the completion and sale of and payment for
the Notes; and (vi) any material adverse change in the financial
markets for asset-backed securities in the United States if, in the
Representatives' judgment, the effect of which is to make it
impractical to proceed with completion of the sale of and payment for
the Notes.
(d) The Representatives shall have received an opinion or
opinions, dated the Closing Date, of Kutak Rock L.L.P., 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 collectively
referred to in this subsection (d) as a "FNBO Entity") is duly
qualified to do business and is in good standing under the
laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts
material business, and has full power and authority to own its
properties, to conduct its business as described in the
Registration Statement and the Prospectus, to enter into and
perform its obligations under the Transaction Documents to
which it is a party, and to consummate the transactions
contemplated thereby.
(ii) Each of the Transaction Documents and this
Agreement has been duly authorized, executed and delivered by
each FNBO Entity that is a party thereto.
(iii) Neither the execution and delivery of the
Transaction Documents and this Agreement by either FNBO Entity
that is party thereto nor the consummation of any of the
transactions contemplated therein nor the fulfillment of the
terms thereof, conflicts with or violates, results in a
material breach of or constitutes a default under (A) any
Requirements of Law applicable to such FNBO Entity, (B) any
term or provision of any order known to me 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 me to
which such FNBO Entity is a party or by which either of them
or any of their properties are bound.
-14-
(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 a
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 any
FNBO Entity to perform its obligations under the Transaction
Documents; and the statements included in the Prospectus
describing statutes, legal proceedings, contracts and other
documents relating to the FNBO Entities, the Accounts, the
Receivables, the business of the Bank, the Transferor, the
Certificate Trust and the Issuer fairly summarize the matters
therein described.
(v) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened under the Act.
(vi) 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 New York,
enforceable against each such Person in accordance with its
terms, subject to (A) the effect of bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation and
other similar laws affecting creditors' rights generally and
the rights of creditors of national banking associations
(including, without limitation, the determination pursuant to
12 U.S.C. ss. 1821(e) of any liability for the disaffirmance
or repudiation of any contract), (B) the effect of general
principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing
(regardless of whether considered and applied in a proceeding
in equity or at law), and also to the possible unavailability
of specific performance or injunctive relief, 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) 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. ss.
1821(e) of any liability for the disaffirmance or repudiation
of any contract), (B) the effect of general principles of
equity including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of
whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability
-15-
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.
(viii) 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, 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 Collateral Certificate is in due and proper
form and when executed, authenticated and delivered as
specified in the Pooling and Servicing Agreement and
Collateral Series Supplement, and when delivered against
payment of the consideration specified therein it will be
validly issued and outstanding, will constitute legal, valid
and binding obligations of the Certificate Trust, enforceable
against the Certificate Trust in accordance with its terms and
will be entitled to the benefits of the Pooling and Servicing
Agreement and Collateral Series Supplement, 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.
(x) The Registration Statement has become effective
under the Act, and the Prospectus has been filed with the
Commission pursuant to Rule 424(b) thereunder in the manner
and within the time period required by Rule 424(b). To the
best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened or contemplated by the Commission,
and the Registration Statement and the Prospectus, and each
amendment or
-16-
supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act.
(xi) The statements in the Base Prospectus under the
headings "Risk Factors--If a conservator or receiver were
appointed for First National Bank of Omaha, delays or
reductions in payment of your notes could occur," "Material
Legal Aspects of the Receivables," "ERISA Considerations" and
"Federal Income Tax Consequences" and the statements in the
Prospectus Supplement under the headings "Structural
Summary--Tax Status" and "--ERISA Considerations" to the
extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by us and
are correct in all material respects.
(xii) This Agreement, the Transaction Documents, the
Collateral Certificate and the Notes conform in all material
respects to the descriptions thereof contained in the
Prospectus.
(xiii) The 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 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.
(xiv) 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 Collateral
Certificate pursuant to the Pooling and Servicing Agreement
and Collateral Series Supplement will not be, required to be
registered under the Investment Company Act of 1940, as
amended.
(xv) Subject to the discussion in the Base Prospectus
under the heading "Federal Income Tax Consequences", the Notes
will properly be characterized as indebtedness and neither of
the Certificate Trust nor the Issuer will be treated as an
association (or publicly traded partnership) taxable as a
corporation, for U.S. federal income tax purposes; there is no
personal property tax imposed by the State of Nebraska or New
York upon or measured by the corpus of the Issuer or the
Certificate Trust; the characterization of the Issuer and the
Certificate Trust for federal income tax purposes will be
determinative of the characterization of the Issuer and the
Certificate Trust for Nebraska and New York income tax
purposes and assuming that the Issuer and the Certificate
Trust will not be taxed as associations or as publicly traded
partnerships for federal income tax purposes, the Issuer will
not be subject to Nebraska or New York income tax and the
Certificate Trust will not be subject to Nebraska or New York
income tax and Noteholders who are not otherwise subject to
Nebraska or New York income tax will not be subject to tax by
reason of their ownership of the Notes and the receipt of
income therefrom; and any income tax imposed by the State of
Nebraska or New York that might be applicable to the Issuer
would be based upon "federal taxable income," and for the
purposes of determining such income, the characterization of
such income for federal income tax purpose will be
-17-
determinative, whether the characterization of the transaction is
that of a sale or a loan.
(xvi) Assuming that the outstanding securities identified in
Annex I hereto (the "Outstanding Securities") would be
characterized as indebtedness or a partnership interest for such
purposes immediately prior to the issuance of the Notes, the
issuance of the Notes will not adversely affect the income tax
characterization of any presently outstanding Investor
Certificates or Certificate Owners of Outstanding Securities or
otherwise constitute an event in which a gain or loss would be
recognized by the holders thereof.
(xvii) 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, 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.
(xviii) Each of the Registration Statement, as of its
effective date, and the Prospectus, as of its date, complied as to
form in all material respects with the requirements of the Act and
the Rules and Regulations under the Act, except that in each case
such counsel need not express any opinion as to the financial and
statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement and, except as and, to the
extent set forth in paragraphs (x) and (xi), such counsel does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement
or the Prospectus.
(xix) 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 ss. 360.6 (the "Rule") would be applicable to the transfers
of Receivables by Bank to Transferor under the Receivables
Purchase Agreement and (b) under the Rule, the FDIC could not, by
exercise of its authority to disaffirm or repudiate contracts
under 12 U.S.C. ss. 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.
-18-
(xx) If the FDIC were to be appointed as a conservator or
receiver for Bank a court having jurisdiction over the
conservatorship or receivership would (a) hold the transfers of
Receivables by the Bank to the Transferor under the Receivables
Purchase Agreement to be a true conveyance and not a secured loan
or a grant of a security interest to secure a loan and (b)
determine that the rights, titles, powers, and privileges of the
FDIC as conservator or receiver of the Bank would not extend to
the Receivables.
(xxi) Certain matters regarding and related to the limited
liability company agreement of the Transferor.
(xxii) 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.
(xxiii) 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.
(xxiv) 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.
(xxv) When the Indenture Trustee has taken possession of the
Collateral Certificate issued by the Certificate Trust, the
Transaction Documents have been executed and delivered and the
Certificate Trust has received payment for the Collateral
Certificate, the Indenture Trustee will become the registered
holder of the Collateral Certificate, subject to no Liens of
record.
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor and the Bank and
their accountants, the Underwriters and counsel to the Underwriters
concerning the Registration Statement and the Prospectus and have
considered the matters to be stated therein and the matters stated
therein, although they are not independently verifying the accuracy,
completeness or fairness of such statements (except as stated in
paragraphs (x) and (xi) above) and based upon and subject to the
foregoing, nothing has come to such counsel's attention to cause such
counsel to believe that the Registration Statement (excluding any
exhibits filed therewith), at the time it became effective, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the
date hereof, contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that
such counsel has not been requested to, and does not, make any comment
in such opinion with respect to the financial statements, supporting
schedules and other financial or statistical information contained in
the Registration Statement or the Prospectus).
-19-
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, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Issuer, the Bank, the
Transferor and public officials.
(e) The Representatives shall have received from Mayer, Brown,
Rowe & Maw, special counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such matters relating
to this transaction as the Representatives may require, and the
Transferor shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate from
each of the Transferor and the Bank, dated the Closing Date, of a
Treasurer, Vice President or more senior officer of the Transferor or
the Bank, as the case may be, in which such officer, to the best of
his/her knowledge after reasonable investigation, shall state that (u)
the representations and warranties of the Transferor and the Bank, as
the case may be, in this Agreement are true and correct on and as of
the Closing Date, (v) the Transferor or the Bank, as the case may be,
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, (w) the representations and warranties of the Transferor or the
Bank, as the case may be, contained in this Agreement and the
Transaction Documents to which it is a party are true and correct as of
the dates specified herein and therein, (x) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened by
the Commission, (y) nothing has come to such officers' attention that
would lead such officers to believe that the Registration Statement or
the Prospectus, and any amendment or supplement thereto, as of its date
and as of the Closing Date, contained an untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (z) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Bank's credit card business
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(g) The Representative shall have received an opinion of [ ],
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 formed and validly existing as a
trust company in good standing under the laws of the State of [ ].
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby.
-20-
(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) Each of the Indenture, the Trust Agreement and the
Transfer and Servicing Agreement (collectively referred to in this
subsection (h) as the "Owner Trustee Trust Documents") has been
duly executed and delivered by the Owner Trustee, as Owner Trustee
on behalf of the Issuer.
(v) Neither the execution, delivery or performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, of the Owner Trustee Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
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, the State of [ ] or the United
States of America governing the banking or trust powers of the
Owner Trustee (other than the filing of the certificate of trust
with the Delaware Secretary of State, which certificate of trust
has been duly filed).
(vi) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, of the Owner Trustee Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
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, the State of [ ] or of the United States
of America governing the banking or trust powers of the Owner
Trustee or, to such counsel's knowledge, without independent
investigation, any indenture, mortgage, bank credit agreement,
note or bond purchase agreement, long-term lease, license or other
agreement or instrument to which it is a party or by which it is
bound or, to such counsel's knowledge, without independent
investigation, or any judgment or order applicable to the Owner
Trustee.
(vii) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or
governmental agency or commission of the State of Delaware or the
State of [ ] is required by or with respect to the Owner Trustee,
in its individual capacity or as Owner Trustee, as the case may
be, for the valid execution and delivery of the Owner Trustee
Trust Documents, or for the validity or enforceability thereof
(other than the filing of the certificate of trust, which
certificate of trust has been duly filed).
(viii) 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
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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 [ ],
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 business trust under the Delaware Business
Trust Act, 12 Del. C. 3801 et seq. (referred to in this subsection
(i) as the "Trust Act").
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Transferor and the Owner Trustee, enforceable
against the Transferor and the Owner Trustee, in accordance with
its terms.
(iii) Under the Trust Act and the Trust Agreement, the
execution and delivery of the Transfer and Servicing Agreement and
the Indenture, the issuance of the Notes, and the granting of the
Collateral to the Indenture Trustee as security for the Notes has
been duly authorized by all necessary trust action on the part of
the Issuer.
(iv) Under the Trust Act and the Trust Agreement, the Issuer
has (i) the trust 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 (i) 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.
-22-
(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 business
trust under the Act.
(x) With respect to the Issuer and the Receivables: (a) there
is no document, stamp, excise or other similar tax imposed by the
State of Delaware upon the perfection of a security interest in
the Collateral Certificate or the Receivables, in the transfer of
Collateral Certificate or the Receivables to or from the Issuer or
the Certificate Trust or upon the issuance of Collateral
Certificate or the Notes; (b) there is no personal property tax
imposed by the State of Delaware upon or measured by the corpus of
the Issuer or the Certificate Trust; (c) the characterization of
the Issuer and the Certificate Trust for federal income tax
purposes will be determinative of the characterization of the
Issuer and the Certificate Trust for Delaware income tax purposes
and assuming that the Issuer and the Certificate Trust will not be
taxed as associations or as publicly traded partnerships for
federal income tax purposes, the Issuer will not be subject to
Delaware income tax and the Certificate Trust will not be subject
to Delaware income tax and Noteholders who are not otherwise
subject to Delaware income tax will not be subject to tax by
reason of their ownership of the Notes and the receipt of income
therefrom; and (d) any income tax imposed by the State of Delaware
that might be applicable to the Issuer would be based upon
"federal taxable income," and for the purposes of determining such
income, the characterization of such income for federal income tax
purpose will be determinative, whether the characterization of the
transaction is that of a sale or a loan.
(xi) The Transferor is the sole beneficial owner of the
Issuer.
(i) The Representative shall have received an opinion of [ ],
counsel to the Indenture Trustee dated the Closing Date, satisfactory
in form and substance to the Representatives and their counsel, to the
effect that:
(i) The Indenture Trustee is organized and validly existing as
an [_____________________] in good standing under the laws of the
State of [New York] and is authorized and qualified to accept the
trusts imposed by the Indenture and to act as Indenture Trustee
under the Indenture.
(ii) The acknowledgment by the Indenture Trustee of the
Transfer and Servicing Agreement has been duly authorized,
executed and delivered by the Indenture Trustee. The Indenture
Trustee has duly authorized, executed and delivered the Indenture.
Assuming the due authorization, execution and delivery thereof by
the other parties thereto, the Indenture is the legal, valid and
binding
-23-
obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, subject to
bankruptcy and insolvency laws and general principles of equity.
(iii) The Indenture Trustee has duly executed and
authenticated the Notes.
(iv) The Indenture Trustee is duly authorized and empowered to
exercise trust powers under applicable law and to perform under
the Transaction Documents.
(v) None of (x) the execution and authentication of the Notes,
(y) the acknowledgment 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 or
the State of [New York] governing the banking or trust powers of
the Indenture Trustee or (B) the organizational documents of the
Indenture Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
or the State of [New York] having jurisdiction over the banking or
trust powers of the Indenture Trustee is required in connection
with the execution and delivery by the Indenture Trustee of the
Indenture or the performance by the Indenture Trustee of the terms
of the Indenture or the acknowledgment of the Transfer and
Servicing Agreement.
(j) The Representatives shall have received an opinion of [ ],
counsel to the Certificate Trustee dated the Closing Date, satisfactory
in form and substance to the Representatives and their counsel, to the
effect that:
(i) The Certificate Trustee is organized and validly existing
as an [New York] trust company in good standing under the laws of
the State of [New York] and is authorized and qualified to accept
the trusts imposed by the Pooling and Servicing Agreement and to
act as Certificate Trustee under the Pooling and Servicing
Agreement.
(ii) The Certificate 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 and the Collateral
Certificate are the legal, valid and binding obligations of the
Certificate Trustee, enforceable against the Certificate Trustee
in accordance with its terms, subject to bankruptcy and insolvency
laws and general principles of equity.
(iii) The Certificate Trustee has duly executed, authenticated
and delivered the Collateral Certificate.
-24-
(iv) The Certificate Trustee is duly authorized and empowered
to exercise trust powers under applicable law and to perform under
the Transaction Documents.
(v) None of (y) the execution and authentication of the
Collateral Certificate, and (z) the execution, delivery and
performance of the Pooling and Servicing Agreement by the
Certificate Trustee conflicts with or will result in a violation
of (A) any law or regulation of the United States of America or
the State of [New York] governing the banking or trust powers of
the Certificate Trustee or (B) the organizational documents of the
Certificate Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
or the State of [Illinois][New York] having jurisdiction over the
banking or trust powers of the Certificate Trustee is required in
connection with the execution and delivery by the Certificate
Trustee of the Pooling and Servicing Agreement or the performance
by the Certificate 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.
(l) The Representatives shall have received an opinion of Kutak
Rock LLP, special counsel to the Bank and the Transferor, dated the
Closing Date, satisfactory in form and substance to the Representatives
and their counsel, regarding certain securities law matters.
(m) The Representatives shall have received evidence satisfactory
to the Representatives that the Class A Notes shall have obtained two
of the following ratings, [Aaa] by Moody's Investors Service, Inc.,
[AAA] by Standard & Poor's Ratings Services and [AAA] by Fitch, Inc.;
that the Class B Notes shall have obtained two of the following
ratings, [A2] or higher by Moody's Investors Service, Inc., [A] or
higher by Standard & Poor's Ratings Services and [A] or higher by
Fitch, Inc. and that the Class C Notes shall have obtained two of the
following ratings: [Baa2] or higher by Moody's Investors Service, Inc.,
[BBB] or higher by Standard & Poor's Ratings Services and [BBB] or
higher by Fitch, Inc.
(n) The issuance of the Notes shall not have resulted in a
reduction or withdrawal by any rating agency of the current rating of
any outstanding securities issued or originated by the Bank, the
Certificate Trust or the Transferor.
(o) 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,
-25-
so material and adverse as to make it impractical or inadvisable to
market the Notes as contemplated by the Prospectus.
(p) After the date hereof, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement of the rating accorded any securities
of the Bank by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act.
(q) The Transferor will furnish the Representatives with such
conformed copies of the above and such other opinions, certificates,
information, letters and documents as the Representatives or their
counsel reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Representatives, this
Agreement and all obligations of the Representatives hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Certificate Trust in writing or by
telephone or telegraph confirmed in writing.
8. Reimbursement of Expenses. The Transferor agrees to pay all costs
and expenses in connection with the transaction herein contemplated (whether or
not consummated), including, without limiting the generality of the foregoing:
all costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) incident to the qualification of
the Notes for investment under the laws of such jurisdictions as either
Representative designates, (iii) for any filing fee of the National Association
of Securities Dealers, Inc. relating to the Notes, (iv) incident to the
preparation, printing (including word processing and duplication costs) and
delivery of the preliminary Prospectus ("Preliminary Prospectus") and the
Prospectus (including in each case all exhibits, amendments, attachments and
supplements thereto), (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Preliminary Prospectus, the Prospectus, the Transaction Documents and the
furnishing to the Representatives of copies of the Prospectus as herein
provided, (vi) constituting the fees and disbursements of the Representatives'
counsel and the Bank's and the Transferor's counsel and accountants, (vii)
payable to each Rating Agency in connection with the ratings of the Notes and
(viii) in connection with the structuring and marketing of the Notes (and any
other miscellaneous expenses in connection therewith); provided that the
Representatives shall not be obligated to pay any expenses of a defaulting
Representative.
9. Indemnification and Contribution.
(a) The Transferor and the Bank, jointly and severally, will
indemnify and hold harmless each Underwriter, the respective directors,
officers, employees and agents of each Underwriter and each Person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act (the "Indemnified Parties") from
-26-
and against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters or any of them may become subject,
under the Act, the 1934 Act, or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, or any related preliminary
prospectus or other information provided by the Transferor or the Bank
to any holder or prospective purchaser of the Notes, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each such Indemnified Party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that Transferor and the Bank will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with the Class A Underwriters'
Information or the Class B Underwriters' Information or the Class C
Underwriters' Information; provided further, that the Transferor and
the Bank will not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any preliminary
prospectus to the extent that any loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter sold Notes
to a Person as to whom it is established that there was not sent or
given, at or prior to written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required
by the Act if the Transferor or the Bank notified the Representative in
writing in accordance with Section 5(a) hereof and previously furnished
copies of the Prospectus (excluding documents incorporated by
reference) in the quantity requested in accordance with Section 5(d)
hereof to such Underwriter and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or omission of a
material fact contained in the preliminary prospectus and corrected in
the Prospectus or the Prospectus as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Transferor, its directors and officers
and each Person who controls the Transferor within the meaning of
Section 15 of the Act or Section 20 of the 1934 Act, against any
losses, claims, damages or liabilities to which the Transferor may
become subject, under the Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or
any related preliminary prospectus, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that, with respect to each of the Class A Underwriters, the
Class B Underwriters and the Class C
-27-
Underwriters, such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with the Class A Underwriters' Information, the Class B
Underwriters' Information or the Class C Underwriters' Information,
respectively, and will reimburse any actual legal or other expenses
reasonably incurred by the Transferor and the Bank in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that in no
case shall any Underwriter be responsible for any amount in excess of
the Underwriter's discounts or commission applicable to the Notes to be
sold by such Underwriter hereunder.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action or the assertion by
a third party of a claim, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party will not (i) relieve it from any liability which it
may have to any indemnified party except and to the extent of any
prejudice to such indemnifying party arising from such failure to
provide such notice and (ii) in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), provided, however, that if (x) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest which, if such
counsel had been retained, would have required such counsel to withdraw
from such representation, (y) the indemnified party shall have been
advised by counsel that there may be one or more legal defenses
available to it that are different from or additional to those
available to the indemnifying party or to other indemnified parties, or
(z) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after receipt by the indemnifying party of notice of
the institution of such action or proceeding, then, in each such case,
(1) the indemnifying party shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties,
(2) such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified
party or parties (provided that, if more than one indemnified party is
subject to the circumstances described in clause (y), then, to the
extent permitted by the rules of professional conduct applicable to
attorneys, all such indemnified parties shall be represented by one
such separate counsel) and (3) all costs and expenses of each such
indemnified party in connection with such action or proceeding shall be
paid by the indemnifying party pursuant to subsection (a) or (b) above,
and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under
this section for any legal or other expenses subsequently
-28-
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation unless, (i) the
indemnified party shall have employed separate counsel in accordance
with this sentence or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the
expense of the indemnifying party. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such
action and does not include a statement as to, or an admission of,
fault, culpability or failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Transferor and the Bank
on the one hand and the Underwriters on the other from the offering of
the Notes, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Transferor and the Bank on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations;
provided, however, that in no event shall any Underwriter be
responsible in the aggregate for any amount in excess of the
Underwriter's discount or commission applicable to the Notes to be sold
by such Underwriter hereunder. The relative benefits received by the
Transferor and the Bank on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) of the Notes
received by the Transferor bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Notes. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Transferor or the Bank or the Underwriters.
The Transferor, the Bank and the Representatives agree that is would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take into
account the equitable considerations referred to above. The amount paid
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Transferor and the Bank under this
Section shall be in addition to any liability which the Transferor or
the Bank may otherwise have and
-29-
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 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 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. Each Underwriter represents and
agrees that it has not and will not, directly or indirectly, offer, sell or
deliver any of the Notes or distribute the Prospectus or any other offering
materials relating to the Notes in or from any jurisdiction except under
circumstances that will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations thereof and that, to the
best of its knowledge and belief, will not impose any obligations on the
Transferor, the Bank or the Issuer except as set forth herein.
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:
-30-
[ ]
Attention: [ ]
[ ]
Attention: [ ]
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN AN ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTION DOCUMENTS OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
16. Representatives. The Representatives will act for the several
Underwriters in connection with this Agreement and the transactions contemplated
hereby and any action undertaken under this Agreement taken by the
Representatives will be binding upon the Underwriters.
-31-
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
--------------------------------------------
Name:
Title:
FIRST NATIONAL BANK OF OMAHA
By
--------------------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[ ]
as Representative of the
Underwriters set forth herein
By
------------------------------------------
Name:
Title:
[ ]
as Representative of the
Underwriters set forth herein
By
------------------------------------------
Name:
Title:
-32-
SCHEDULE A
Class A Notes
Underwriters Principal Amount of
- ------------ Class A Notes
-------------
$
-------------------
$
-------------------
Total $
===================
Class B Notes
Underwriters Principal Amount of
- ------------ Class B Notes
-------------
$
-------------------
$
-------------------
Total $
===================
Class C Notes
Underwriters Principal Amount of
- ------------ Class C Notes
-------------
$
-------------------
$
-------------------
Total $
===================
ANNEX I
List of Outstanding Securities
2