EXHIBIT 1.1
EXECUTION COPY
FIRST NATIONAL MASTER NOTE TRUST
$332,000,000 CLASS A FLOATING RATE ASSET BACKED
NOTES, SERIES 2002-1
$31,000,000 CLASS B FLOATING RATE ASSET BACKED
NOTES, SERIES 2002-1
$37,000,000 CLASS C FLOATING RATE ASSET BACKED
NOTES, SERIES 2002-1
UNDERWRITING AGREEMENT
October 16, 2002
Banc One Capital Markets, Inc.
One Bank One Plaza, 7th Floor
Chicago, IL 60670]
As Representative of the Underwriters set forth herein
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street, 10th Floor
Charlotte, NC 28255
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 $332,000,000 principal amount of Class A Floating Rate Asset
Backed Notes, Series 2002-1 (the "Class A Notes"), $31,000,000 principal amount
of Class B Floating Rate Asset Backed Notes, Series 2002-1 (the "Class B Notes")
and $37,000,000 principal amount of Class C Floating Rate Asset Backed Notes,
Series 2002-1 (the "Class C Notes", and together with the Class A Notes and the
Class B Notes, the "Notes") to the Underwriters (as defined hereinafter) for
whom you are acting as Representatives (the "Representatives").
The Issuer is a Delaware statutory business trust formed pursuant to (a) a
Trust Agreement, dated as of October 16, 2002 (the "Trust Agreement"), between
the Transferor and Wilmington Trust Company ("WTC"), as owner trustee (the
"Owner Trustee") and (b) the filing of a certificate of trust with the Secretary
of State of Delaware on October 16, 2002. The Notes will be issued pursuant to a
Master Indenture, to be dated as of October 24, 2002 (the "Master Indenture"),
between the Issuer and The Bank of New York ("BONY"), as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series 2002-1 Indenture Supplement
with respect
to the Notes to be dated as of October 24, 2002 (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, to
be dated as of October 24, 2002 (as amended and supplemented, the "Pooling and
Servicing Agreement"), among FNF LLC, First National Bank of Omaha, a national
banking association (the "Bank"), as servicer (the "Servicer") and BONY, as
trustee (the "Certificate Trust Trustee"), and the Collateral Series Supplement,
to be dated as of October [ ], 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, to be dated as of October 24, 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, to be dated as of October 24,
2002 (the "Transfer and Servicing Agreement"), among the Transferor, the Bank,
as Servicer, and the Issuer.
The Bank has agreed to provide notices and perform on behalf of the Issuer
certain other administrative obligations required by the Transfer and Servicing
Agreement, the Master Indenture and each indenture supplement for each series of
Notes issued by the Issuer, pursuant to an Administration Agreement, to be dated
as of October 24, 2002 (the "Administration Agreement"), between the Bank, as
administrator (in such capacity, the "Administrator"), and the Issuer. The
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and the
Administration Agreement are referred to herein, collectively, as the
"Transaction Documents."
This Underwriting Agreement is referred to herein as this "Agreement." To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Transaction Documents.
The Transferor and the Bank hereby agree, severally and not jointly, with
the underwriters for the Class A Notes listed on Schedule A hereto (the "Class A
Underwriters") the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters") and the underwriters for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriters" and together with the
Class A Underwriters and the Class B Underwriters, the "Underwriters") as
follows:
2. Representations and Warranties of the Transferor and the Bank. Each of
the Transferor (the representations and warranties as to the Transferor being
given by the Transferor)
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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 behalf of the Noteholders, will be able to enforce the
remedies of a secured party under the UCC.
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(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.
(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
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or the Bank of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or thereunder, nor
the fulfillment of the terms hereof or thereof does or will (i) violate
any Requirement of Law presently in effect, applicable to it or its
properties or by which it or its properties are or may be bound or
affected, (ii) breach or violate any provision of the organizational
documents applicable to the Transferor or the Bank, (iii) violate any
judgment, order or decree of any court, arbitrator, administrative agency
or other governmental authority applicable to the Transferor or the Bank,
(iv) conflict with, or result in a breach of, or constitute a default
under, any indenture, contract, agreement, mortgage, deed of trust or
instrument to which it is a party or by which it or its properties are
bound, (v) result in the acceleration of any obligation of the Transferor
or the Bank, or (vi) result in the creation or imposition of any Lien upon
any of its property or assets, except for those encumbrances created under
the Transaction Documents.
(j) All approvals, authorizations, consents, orders and other
actions of any Person or of any court or other governmental body or
official required in connection with the execution and delivery by the
Transferor or the Bank of this Agreement or the Transaction Documents to
which it is a party or the consummation of the transactions contemplated
hereunder and thereunder, or the fulfillment of the terms hereof and
thereof have been or will have been obtained on or before the Closing
Date.
(k) All actions required to be taken by the Transferor or the Bank
as a condition to the offer and sale of the Notes as described herein or
the consummation of any of the transactions described in the Prospectus
and the Registration Statement have been or, prior to the Closing Date,
will be taken.
(l) 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.
(m) The representations and warranties made by the Transferor in the
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Trust Agreement and the Receivables Purchase Agreement or made in any
Officer's Certificate of the Transferor delivered pursuant to any
Transaction Document to which it is a party will be true and correct at
the time made and on and as of the Closing Date as if set forth herein,
except that to the extent that any such representation or warranty
expressly relates to an earlier or later date, such representation or
warranty is true and correct at and as of such earlier or later date.
(n) The representations and warranties made by the Bank in the
Receivables Purchase Agreement, and in its capacity as Servicer and
Administrator, in the Transfer and Servicing Agreement, the Pooling and
Servicing Agreement and the Administration Agreement, respectively, or
made in any Officer's Certificate of the Bank delivered pursuant to any
Transaction Document to which it is a party will be true and correct at
the time made and on and as of the Closing Date as if set forth herein,
except that to the extent that any such representation or warranty
expressly relates to an earlier or later date, such representation or
warranty is true and correct at and as of such earlier or later date.
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(o) The Transferor agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person
a security interest in, or any other right, title or interest in, the
Receivables or the Collateral Certificate, except as provided in the
Pooling and Servicing Agreement and the Transfer and Servicing Agreement,
and agrees to take all action required by the Pooling and Servicing
Agreement and the Transfer and Servicing Agreement in order to maintain
the security interest in the Receivables and the Collateral Certificate
granted pursuant to the Pooling and Servicing Agreement, the Transfer and
Servicing Agreement and the Indenture, as applicable.
(p) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person
a security interest in, or any other right, title or interest in, the
Receivables, except as provided in the Pooling and Servicing Agreement
(and the predecessor agreement) or the Receivables Purchase Agreement, as
applicable, and agrees to take all action required by the Pooling and
Servicing Agreement or the Receivables Purchase Agreement, as applicable,
in order to maintain the security interests in the Receivables granted
pursuant to the Receivables Purchase Agreement, the Pooling and Servicing
Agreement and the Indenture, as applicable.
(q) 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 Rule 424(b), is hereinafter referred to as the
"Base Prospectus") relating to the Notes and the method of distribution
thereof. The Base Prospectus and the Prospectus Supplement, together with
any amendment thereof or supplement thereto, are hereinafter referred to
as the "Prospectus".
(r) On the Effective Date, the Registration Statement did 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
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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", and in the
final paragraph under the heading "Underwriting" in the Prospectus
Supplement (the "Class A Underwriters' Information"), (ii) the only
information provided by the Class B Underwriters for inclusion in the
Registration Statement and the Prospectus is set forth on the cover page
of the Prospectus Supplement in the table under the heading "Class B
Notes" and on the line across from "Price to public," in the table listing
the Class B Underwriters and the Principal Amount of Class B Notes 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").
(s) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise set
forth therein, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Bank or the Transferor.
(t) The computer tape of the Receivables to be created as of October
14, 2002, and made available to the Representatives by the Servicer, will
be complete and accurate in all material respects as of the date thereof.
(u) There are no actions, proceedings of investigations pending or,
to the best of its knowledge, threatened against or affecting the
Transferor or the Bank (or any basis therefor known to the Transferor or
the Bank) (i) asserting the invalidity of any of the
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Transaction Documents, (ii) seeking to prevent the issuance of the Notes
or the consummation by the Transferor or the Bank of any of the
transactions contemplated by the Transaction Documents, or (iii) which,
individually or in the aggregate, if adversely decided, would materially
and adversely affect the business, financial condition or results of
operations of the Transferor, the Issuer, the Certificate Trust or the
Bank or of the Transferor's or the Bank's ability to consummate the
transactions contemplated by the Transaction Documents.
(v) None of the Issuer, the Certificate Trust, the Transferor, the
Bank, any Affiliates thereof or any of their Agents has taken any action
that would require registration of the Issuer, the Certificate Trust, the
Transferor or the Bank under the Investment Company Act of 1940, nor will
the Issuer, the Certificate Trust, the Transferor, the Bank, any
Affiliates thereof or any of their Agents act, nor have they authorized or
will they authorize any person to act, in such a manner.
(w) It is not necessary to qualify the Pooling and Servicing
Agreement or the Collateral Series Supplement under the Trust Indenture
Act of 1939.
3. Purchase, Sale, Payment and Delivery of the Notes.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Transferor agrees to sell to the Class A Underwriters, and the
Class A Underwriters agree to purchase from the Transferor, at a purchase
price of 99.775% of the principal amount thereof, $332,000,000 aggregate
principal amount of the Class A Notes, each Class A Underwriter to
purchase the amounts shown on Schedule A hereto.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Transferor agrees to sell to the Class B Underwriters, and the
Class B Underwriters agree to purchase from the Transferor, at a purchase
price of 99.725% of the principal amount thereof, $31,000,000 aggregate
principal amount of the Class B Notes, each Class B Underwriter to
purchase the amounts shown on Schedule A hereto.
(c) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Transferor agrees to sell to the Class C Underwriters, and the
Class C Underwriters agree to purchase from the Transferor, at a purchase
price of 99.700% of the principal amount thereof, $37,000,000 aggregate
principal amount of the Class C Notes, each Class C Underwriter to
purchase the amounts shown on Schedule A hereto.
(d) The Transferor will cause the Issuer to deliver the Notes to the
Underwriters against payment of the purchase price in immediately
available funds, drawn to the order of the Transferor, at the office of
Kutak Rock LLP, in Omaha, Nebraska at 10:00 a.m., Chicago time, on October
24, 2002, 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.
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The Notes will be available for inspection, checking and packaging by the
Underwriters at the office at which the Notes are to be delivered in
Omaha, Nebraska no later than 4:00 p.m., Chicago time, on the business day
prior to the Closing Date.
4. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Notes for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Transferor. The Transferor agrees with the
Underwriters that:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount
of Notes covered thereby and the terms thereof not otherwise specified in
the Base Prospectus, the price at which such Notes are to be purchased by
the Underwriters, the initial public offering price, the selling
concessions and allowances, and such other information as the Transferor
deems appropriate. The Transferor will transmit the Prospectus, including
such Prospectus Supplement, to the Commission pursuant to Rule 424(b) by a
means reasonably calculated to result in filing with the Commission
pursuant to Rule 424(b). The Transferor will not file any amendment of the
Registration Statement with respect to the Notes or supplement to the
Prospectus unless a copy has been furnished to the Representatives for
their review a reasonable time prior to the proposed filing thereof or to
which the Representatives shall reasonably object in writing. The
Transferor will advise the Representatives promptly of (i) the
effectiveness of any amendment or supplementation of the Registration
Statement or Prospectus, (ii) any request by the Commission for any
amendment or supplementation of the Registration Statement or the
Prospectus or for any additional information, (iii) the receipt by the
Transferor of any notification with respect to the suspension of
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes and (iv) the
institution by the Commission of any stop order proceeding in respect of
the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Transferor promptly will notify the Representatives of such event and
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Underwriters' consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 7.
(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
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satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Commission promulgated thereunder.
(d) The Transferor will furnish to the Representatives and their
counsel, without charge, copies of the Registration Statement (one of
which will be signed and will include all exhibits), the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representatives reasonably
request. The Transferor will pay the expenses of printing or other
production of all documents relating to the offering of the Notes.
(e) The Transferor will endeavor to qualify the Notes for sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and the determination of the
eligibility for investment of the Notes under the laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect so long as required for the distribution of the
Notes; provided, however, that the Transferor shall not be obligated to
qualify to do business in any jurisdiction where such qualification would
subject the Transferor to general or unlimited service of process in any
jurisdiction where it is not now so subject. The Transferor will promptly
advise the Underwriters of the receipt by the Transferor of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose.
(f) The Transferor will, and will cause the Certificate Trust and
Issuer to, assist the Representatives in making arrangements with DTC,
Euroclear and Clearstream, Luxembourg concerning the issue of the Notes,
arranging with such clearing agency to permit the Notes to be eligible for
clearance and settlement through such clearing agency and related matters.
(g) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representatives copies of each
certificate and the annual statements of compliance delivered to (a) the
Certificate Trustee and each Rating Agency pursuant to Sections 3.04(b)
and 3.05 of the Pooling and Servicing Agreement and independent certified
public accountant's servicing reports furnished to the Certificate Trustee
and each Rating Agency pursuant to Sections 3.06(a) and (b), (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 2002-1 Noteholders
pursuant to Sections 5.03(a) and (d) of the Indenture Supplement, by first
class mail promptly after such certificates, statements and reports are
furnished to the Certificate Trustee, the Owner Trustee, the Indenture
Trustee, the Series 2002-1 Noteholders or the Rating Agencies, as the case
may be.
(h) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representatives, by first-class
mail as soon as practicable (i) all documents concerning the Receivables,
the Collateral Certificate or the Notes distributed by the Transferor or
the Servicer (under each of the Pooling and Servicing Agreement and
Transfer and Servicing Agreement) to the Certificate Trustee, the Owner
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Trustee, the Indenture Trustee or the Noteholders, or filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) any order of the Commission under the Act or
the Exchange Act applicable to the Issuer, to the Certificate Trust, or to
the Transferor, or pursuant to a "no-action" letter obtained from the
staff of the Commission by the Transferor and affecting the Issuer, the
Certificate Trust, or the Transferor and (iii) from time to time, such
other information concerning the Issuer or the Certificate Trust as the
Representatives may reasonably request.
(i) To the extent, if any, that any of the ratings provided with
respect to the Notes by any Rating Agency are conditional upon the
furnishing of documents or the taking of any other actions by the
Transferor, the Transferor shall furnish such documents and take any such
other actions as are necessary to satisfy such condition.
(j) In connection with any disposition of the Definitive Notes
pursuant to a transaction made in compliance with all applicable transfer
restrictions contemplated herein and in the Indenture, the Transferor will
cause the Issuer to reissue notes evidencing such Definitive Notes as
required pursuant to the Indenture.
(k) Until 30 days following the Closing Date, none of the Transferor
or any trust or other entity originated, directly or indirectly, by the
Transferor (including, without limitation, the Certificate Trust or the
Issuer) will, without the prior written consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any asset-backed securities
(other than the Notes).
(l) After the Certificate Trust Termination Date, the Transferor
shall cause its computer records relating to the Receivables to be marked
in accordance with Section 2.01(c) of the Transfer and Servicing Agreement
to show the Issuer's absolute ownership of the Receivables, and from and
after the Certificate Trust Termination Date the Transferor shall not take
any action inconsistent with the Issuer's ownership of the Receivables,
other than as permitted by the Transfer and Servicing Agreement.
(m) The Transferor will enter into the Pooling and Servicing
Agreement, the Transfer and Servicing Agreement and other instruments to
which this Agreement and the Pooling and Servicing Agreement and the
Transfer and Servicing Agreement contemplate it will be a party on or
prior to the Closing Date. The Transferor will cause the Certificate Trust
and the Issuer to enter into any instruments to which this Agreement or
any Transaction Document contemplates that either will be a party on or
prior to the Closing Date.
6. Certain Agreements of the Bank.
(a) Until 30 days following the Closing Date, none of the Bank or
any trust or other entity originated, directly or indirectly, by the Bank
(including, without limitation, the Transferor) will, without the prior
written consent of the Representatives, which shall not be unreasonably
withheld, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any asset-backed
securities (other than the Notes).
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(b) The Bank will enter into the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Transfer and Servicing Agreement and
other instruments to which this Agreement and the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, and the Transfer and
Servicing Agreement contemplate it will be a party on or prior to the
Closing Date.
7. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties by the Transferor and the Bank
herein, to the accuracy of the statements of officers of Transferor and the Bank
made pursuant to the provisions hereof, to the performance by the Transferor and
the Bank of their respective obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of this Agreement, the Representatives
shall have received an agreed upon procedures letter of Deloitte & Touche
LLP, dated on or prior to the date of this Agreement, confirming that they
are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder, which letter shall
be substantially in the form heretofore agreed to and otherwise in form
and in substance satisfactory to the Representatives and their counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement; and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Transferor or the Representatives, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement none
of the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended, limited or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction or any suspension of trading
of any securities of the Certificate Trust, the Issuer, the Bank, the
Transferor or First National of Nebraska, Inc. or any of their Affiliates
on any exchange or in the over-the-counter market; (ii) a banking
moratorium shall have been declared by Federal or state authorities; (iii)
any downgrading in the rating of any debt securities of the Certificate
Trust, the Issuer, the Bank, the Transferor, First National of Nebraska,
Inc. or any of their Affiliates by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iv) the United
States shall have become engaged in hostilities, there shall have been an
escalation of hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
any other substantial national or international calamity or emergency
which, in the judgment of the Representatives, the effect of such
hostilities, escalation, declaration or other calamity or emergency makes
it impractical or inadvisable to proceed
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with the completion and sale of and payment for the Notes; and (v) any
material adverse change in the financial markets for asset-backed
securities in the United States if, in the Representatives' judgment, the
effect of which is to make it impractical to proceed with completion of
the sale of and payment for the Notes.
(d) The Representatives shall have received an opinion or opinions,
dated the Closing Date, of Kutak Rock LLP, special counsel to the
Transferor and the Bank, satisfactory in form and substance to the
Representatives and their counsel to the effect that:
(i) The Transferor is a limited liability company in good
standing, duly organized and validly existing under the laws of the
State of Nebraska; the Bank is a national banking association in
good standing, duly organized and validly existing under the laws of
the United States of America; and each of the Transferor and the
Bank (each referred to in this subsection (d) as a "FNBO Entity") is
duly qualified to do business and is in good standing under the laws
of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business,
and has full power and authority to own its properties, to conduct
its business as described in the Registration Statement and the
Prospectus, to enter into and perform its obligations under the
Transaction Documents to which it is a party, and to consummate the
transactions contemplated thereby.
(ii) Each of the Transaction Documents and this Agreement has
been duly authorized, executed and delivered by each FNBO Entity
that is a party thereto.
(iii) Neither the execution and delivery of the Transaction
Documents and this Agreement by either FNBO Entity that is party
thereto nor the consummation of any of the transactions contemplated
therein nor the fulfillment of the terms thereof, conflicts with or
violates, results in a material breach of or constitutes a default
under (A) any Requirements of Law applicable to such FNBO Entity,
(B) any term or provision of any order known to such firm to be
currently applicable to such FNBO Entity of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over such FNBO Entity or (C) any term or provision of any indenture
or other agreement or instrument known to such firm to which such
FNBO Entity is a party or by which either of them or any of their
properties are bound and, as to FNBO, which has been identified to
us as material to the business or operations of FNBO.
(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
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Collateral Certificate, the Certificate Trust or the Issuer or upon
the ability of either FNBO Entity to perform its obligations under
the Transaction Documents.
(v) Each of the Transaction Documents to which an FNBO Entity
is a party constitutes the legal, valid and binding agreement of
such Person under the laws of Nebraska, enforceable against each
such Person in accordance with its terms, subject to (A) the effect
of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally and the rights of creditors of national banking
associations (including, without limitation, the determination
pursuant to 12 U.S.C.Section 1821(e) of any liability for the
disaffirmance or repudiation of any contract), (B) the effect of
general principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing (regardless
of whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability of specific
performance or injunctive relief, (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability where
such indemnification or contribution is contrary to public policy
and (D) certain remedial provisions of the Indenture may be
unenforceable in whole or in part under the UCC, but the inclusion
of such provisions does not render the other provisions of the
Indenture invalid and notwithstanding that such provisions may be
unenforceable in whole or in part, the Indenture Trustee, on behalf
of the Noteholders, will be able to enforce the remedies of a
secured party under the UCC.
(vi) This Agreement constitutes the legal, valid and binding
obligation of the Transferor and the Bank under the laws of the
State of New York, enforceable against the Transferor and the Bank
in accordance with its terms, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally and the rights of creditors of national banking
associations (including, without limitation, the determination
pursuant to 12 U.S.C. Section 1821(e) of any liability for the
disaffirmance or repudiation of any contract), (B) the effect of
general principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing (regardless
of whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability where
such indemnification or contribution is contrary to public policy.
(vii) The Notes are in due and proper form and when executed,
authenticated and delivered as specified in the Indenture, and when
delivered against payment of the consideration specified in this
Agreement, they will be validly issued and outstanding, will
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms and
will be entitled to the benefits of the Indenture, subject to (A)
the effect of
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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.
(viii) The Collateral Certificate is in due and proper form
and when executed, authenticated and delivered as specified in the
Pooling and Servicing Agreement, 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, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally, (B) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good
faith, fair dealing (regardless of whether considered and applied in
a proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, and (C)
the unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring contribution
from a party for liability where such indemnification or
contribution is contrary to public policy.
(ix) The Registration Statement has become effective under the
Act, and the Prospectus has been filed with the Commission pursuant
to Rule 424(b) thereunder in the manner and within the time period
required by Rule 424(b). To the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
are pending or threatened or contemplated by the Commission.
(x) The statements in the Base Prospectus under the headings
"Risk Factors -- If a conservator or receiver were appointed for
First National Bank of Omaha, or if we become a debtor in a
bankruptcy case, delays or reductions in payment of your notes could
occur," "Material Legal Aspects of the Receivables," "ERISA
Considerations" and "Federal Income Tax Consequences" and the
statements in the Prospectus Supplement under the headings
"Structural Summary -- Tax Status" and " -- ERISA Considerations" to
the extent that they constitute matters of law or legal conclusions
with respect thereto, have been reviewed by us and are correct in
all material respects.
(xi) The Transaction Documents (other than Trust Agreement and
Administration Agreement), the Collateral Certificate and the Notes
conform in all material respects to the descriptions thereof
contained in the Prospectus.
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(xii) 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.
(xiii) The Pooling and Servicing Agreement need not be
qualified under the TIA. The Certificate Trust is not now, and
immediately following the issuance of the Collateral Certificate
pursuant to the Pooling and Servicing Agreement will not be,
required to be registered under the Investment Company Act of 1940,
as amended.
(xiv) Subject to the discussion in the Base Prospectus under
the heading "Federal Income Tax Consequences", the Notes will
properly be characterized as indebtedness and neither the
Certificate Trust nor the Issuer will be treated as an association
(or publicly traded partnership) taxable as a corporation, for U.S.
federal income tax purposes.
(xv) Assuming that the outstanding securities identified in
Part A of Annex I hereto would be characterized as indebtedness or a
partnership interest for such purposes immediately prior to the
issuance of the Notes, the issuance of the Notes will not adversely
affect the federal income tax characterization of any outstanding
Investor Certificates for each series identified in Annex I hereto
or in the case of the outstanding securities identified in Part B of
Annex I hereto otherwise constitute an event in which a gain or loss
would be recognized by the holders thereof.
(xvi) Each of the Indenture and the Administration Agreement
constitutes the legal, valid and binding obligation of the Issuer
under the laws of the State of Nebraska, subject to (A) the effect
of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally, (B) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good
faith, fair dealing (regardless of whether considered and applied in
a proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, 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.
(xvii) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations under the Act, except that in each case such counsel
need not express any opinion as to the financial and statistical
data included therein or excluded therefrom or the exhibits to the
Registration Statement and, except as and, to the extent set forth
in paragraphs (x) and (xi), such counsel does not assume any
responsibility for the accuracy,
-16-
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus.
(xviii) If the FDIC were appointed as conservator or receiver
for the Bank (a) the FDIC regulation entitled "Treatment by the
Federal Deposit Insurance Corporation as Conservator or Receiver of
Financial Assets Transferred by an Insured Depository Institution in
Connection with a Securitization or Participation," 12 CFR
Section 360.6 (the "Rule") would be applicable to the transfers of
Receivables by Bank to Transferor under the Receivables Purchase
Agreement and (b) under the Rule, the FDIC could not, by exercise of
its authority to disaffirm or repudiate contracts under 12 U.S.C.
Section 1821(e), reclaim or recover the Receivables or the proceeds
thereof from Transferor, the Certificate Trust or the Issuer or
recharacterize the Receivables or the proceeds thereof as property
of Bank or the receivership for Bank.
(xix) If the FDIC were to be appointed as a conservator or
receiver for Bank pursuant to Section 11(c) of FDIA a court having
jurisdiction over the conservatorship or receivership would, in a
properly presented case, (a) hold the transfers of Receivables by
the Bank to the Transferor under the Receivables Purchase Agreement
to be a true conveyance or a capital contribution and not a secured
loan or a grant of a security interest to secure a loan and (b)
determine that the rights, titles, powers, and privileges of the
FDIC as conservator or receiver of the Bank would not extend to the
Receivables.
(xx) Certain matters regarding and related to the limited
liability company agreement of the Transferor.
(xxi) Certain matters relating to the characterization of the
Receivables under the UCC and to the transfer of the Receivables
from the Transferor to the Certificate Trust under the Pooling and
Servicing Agreement.
(xxii) Certain matters relating to the characterization of the
Collateral Certificate under the UCC and to the transfer of the
Collateral Certificate from the Transferor to the Issuer under the
Transfer and Servicing Agreement.
(xxiii) Certain matters with respect to the attachment and
perfection of the ownership interests and security interests granted
under the Transaction Documents in the Receivables, the Collateral
Certificate and the proceeds thereof, including that such assets are
not subject to other Liens of record.
(xxiv) 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
-17-
and counsel to the Underwriters concerning the Registration Statement and
the Prospectus and have considered the matters to be stated therein and
the matters stated therein, although they are not independently verifying
the accuracy, completeness or fairness of such statements (except as
stated in paragraphs (x) and (xi) above) and based upon and subject to the
foregoing, nothing has come to such counsel's attention to cause such
counsel to believe that the Registration Statement (excluding any exhibits
filed therewith), at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of the date hereof, contains
any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel has not been
requested to, and does not, make any comment in such opinion with respect
to the financial statements, supporting schedules and other financial or
statistical information contained in the Registration Statement or the
Prospectus).
In rendering such opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, State of Nebraska and the United States, to the extent deemed
proper and stated in such opinion, upon the opinion of other counsel of
good standing believed by such counsel to be reliable and acceptable to
the Representative and its counsel, and (B) as to matters of fact, on
certificates of responsible officers of the Issuer, the Bank, the
Transferor and public officials.
(e) The Representatives shall have received from Mayer, Brown, 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
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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 Richards,
Layton & Finger, counsel to the Owner Trustee, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel,
to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of
the State of Delaware.
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid
and binding obligation of the Owner Trustee, enforceable against the
Owner Trustee in accordance with its terms.
(iv) Neither the execution, delivery or performance by the
Owner Trustee, of the Trust Agreement, nor the consummation of the
transactions by the Owner Trustee, contemplated thereby, requires
the consent or approval of, the withholding of objection on the part
of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of,
any governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of
the Owner Trustee (other than the filing of the certificate of trust
with the Delaware Secretary of State, which certificate of trust has
been duly filed).
(v) Neither the execution, delivery and performance by the
Owner Trustee, of the Trust Agreement, nor the consummation of the
transactions by the Owner Trustee, is in violation of the charter or
bylaws of the Owner Trustee or of any law, governmental rule or
regulation of the State of Delaware or of the United States of
America governing trust powers of the Owner Trustee or, to such
counsel's knowledge, without independent investigation, any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument
to which it is a party or by which it is bound or, to such counsel's
knowledge, without independent investigation, or any judgment or
order applicable to the Owner Trustee.
(vi) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
governmental authority which, if adversely determined, would
materially and adversely affect the ability of the Owner Trustee to
carry out the transactions contemplated by the Trust Agreement.
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(h) The Representative shall have received an opinion of Richards,
Layton & Finger, special Delaware counsel to the Issuer, dated the Closing
Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Issuer has been duly formed and is validly existing in
good standing as a statutory trust under the Delaware Statutory
Trust Act, 12 Del. C. 3801 et seq. (referred to in this subsection
(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 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.
(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
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the Issuer shall not result in the termination or dissolution of the
Issuer, except to the extent otherwise provided in the Trust
Agreement.
(ix) The Owner Trustee is not required to hold legal title to
the Trust Estate in order for the Issuer to qualify as a statutory
trust under the Act.
(i) The Representative shall have received an opinion of Chapman and
Cutler, counsel to the Indenture Trustee dated the Closing Date,
satisfactory in form and substance to the Representatives and their
counsel, to the effect that:
(i) The Indenture Trustee is organized and validly existing as
a New York banking corporation in good standing under the laws of
the State of New York and is authorized and qualified to accept the
trusts imposed by the Indenture and to act as Indenture Trustee
under the Indenture.
(ii) The acknowledgment by the Indenture Trustee of the
Transfer and Servicing Agreement has been duly authorized, executed
and delivered by the Indenture Trustee. The Indenture Trustee has
duly authorized, executed and delivered the Indenture. Assuming the
due authorization, execution and delivery thereof by the other
parties thereto, the Indenture is the legal, valid and binding
obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, subject to
bankruptcy and insolvency laws and general principles of equity.
(iii) The Indenture Trustee has duly executed and
authenticated the Notes.
(iv) The Indenture Trustee is duly authorized and empowered to
exercise trust powers under applicable law and to perform under the
Transaction Documents.
(v) None of (x) the execution and authentication of the Notes,
(y) the 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 Chapman
and Cutler, counsel to the Certificate Trust Trustee dated the Closing
Date, satisfactory in form and substance to the Representatives and their
counsel, to the effect that:
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(i) The Certificate Trustee is organized and validly existing
as an New York banking corporation in good standing under the laws
of the State of New York and is authorized and qualified to accept
the trusts imposed by the Pooling and Servicing Agreement and to act
as Certificate Trust Trustee under the Pooling and Servicing
Agreement.
(ii) The Certificate Trust Trustee has duly authorized,
executed and delivered the Pooling and Servicing Agreement. Assuming
the due authorization, execution and delivery thereof by the other
parties thereto, the Pooling and Servicing Agreement is the legal,
valid and binding obligation of the Certificate Trust Trustee,
enforceable against the Certificate Trust Trustee in accordance with
its terms, subject to bankruptcy and insolvency laws and general
principles of equity.
(iii) The Certificate Trust Trustee has duly executed,
authenticated and delivered the Collateral Certificate.
(iv) The Certificate Trust Trustee is duly authorized and
empowered to exercise trust powers under applicable law and to
perform under the Transaction Documents.
(v) None of (y) the execution and authentication of the
Collateral Certificate, and (z) the execution, delivery and
performance of the Pooling and Servicing Agreement by the
Certificate Trust Trustee conflicts with or will result in a
violation of (A) any law or regulation of the United States of
America or the State of New York governing the banking or trust
powers of the Certificate Trust Trustee or (B) the organizational
documents of the Certificate Trust Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Certificate Trust Trustee is required in connection
with the execution and delivery by the Certificate Trust Trustee of
the Pooling and Servicing Agreement or the performance by the
Certificate Trust Trustee of the terms of the Pooling and Servicing
Agreement.
(k) The Representatives shall have received reliance letters
addressed to the Representatives, dated as of the Closing Date, allowing
the Representatives to rely on each opinion of counsel delivered to a
Rating Agency, the Indenture Trustee, the Certificate Trustee, the
Transferor or the Bank in connection with the issuance of the Notes and
not addressed to the Representatives.
(l) The Representatives shall have received evidence satisfactory to
the Representatives that the Class A Notes shall have obtained the
following ratings, Aaa by Moody's Investors Service, Inc. and AAA by
Standard & Poor's Ratings Services; that the Class B Notes shall have
obtained the following ratings, A2 or higher by Moody's Investors Service,
Inc. and A or higher by Standard & Poor's Ratings Services and that
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the Class C Notes shall have obtained the following ratings: Baa2 or
higher by Moody's Investors Service, Inc. and BBB or higher by Standard &
Poor's Ratings Services.
(m) After the date hereof, there shall not have been any change or
any development involving a prospective change in or affecting the
business or properties of the Bank or the Transferor the effect of which
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to market the Notes as contemplated by
the Prospectus.
(n) The issuance of the Notes shall not have resulted in a reduction
or withdrawal by any rating agency of the current rating of any
outstanding securities issued or originated by the Bank, the Certificate
Trust or the Transferor. After the date hereof, there shall not have
occurred any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible change
that does not indicate an improvement of the rating accorded any
securities of the Bank by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Act.
(o) The Transferor will furnish the Representatives with such
conformed copies of the above and such other opinions, certificates,
information, letters and documents as the Representatives or their counsel
reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Representatives, this
Agreement and all obligations of the Representatives hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Certificate Trust in writing or by
telephone or telegraph confirmed in writing.
8. Reimbursement of Expenses. The Transferor agrees to pay all costs and
expenses in connection with the transaction herein contemplated (whether or not
consummated), including, without limiting the generality of the foregoing: all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) incident to the qualification of
the Notes for investment under the laws of such jurisdictions as either
Representative designates, (iii) for any filing fee of the National Association
of Securities Dealers, Inc. relating to the Notes, (iv) incident to the
preparation, printing (including word processing and duplication costs) and
delivery of the preliminary Prospectus ("Preliminary Prospectus") and the
Prospectus (including in each case all exhibits, amendments, attachments and
supplements thereto), (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Preliminary Prospectus, the Prospectus, the Transaction Documents and the
furnishing to the Representatives of copies of the Prospectus as herein
provided, (vi) constituting the fees and disbursements of the Representatives'
counsel and the Bank's and the Transferor's counsel and accountants, (vii)
payable to each Rating Agency in connection with the ratings of the Notes and
(viii) in connection with the structuring and marketing of the Notes (and any
other miscellaneous expenses in connection therewith);
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provided that the Representatives shall not be obligated to pay any expenses of
a defaulting Representative.
9. Indemnification and Contribution.
(a) The Transferor and the Bank, jointly and severally, will
indemnify and hold harmless each Underwriter, the respective directors,
officers, employees and agents of each Underwriter and each Person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act (the "Indemnified Parties") from and against
any losses, claims, damages or liabilities, joint or several, to which the
Underwriters or any of them may become subject, under the Act, the 1934
Act, or other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or other information
provided by the Transferor or the Bank to any holder or prospective
purchaser of the Notes, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse each such Indemnified Party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that Transferor and the Bank will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the Class A
Underwriters' Information or the Class B Underwriters' Information or the
Class C Underwriters' Information; provided further, that the Transferor
and the Bank will not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any preliminary
prospectus to the extent that any loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Notes to a
Person as to whom it is established that there was not sent or given, at
or prior to written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as
then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by the Act if the
Transferor or the Bank notified the Representative in writing in
accordance with Section 5(a) hereof and previously furnished copies of the
Prospectus (excluding documents incorporated by reference) in the quantity
requested in accordance with Section 5(d) hereof to such Underwriter and
the loss, claim, damage or liability of such Underwriter results from an
untrue statement or omission of a material fact contained in the
preliminary prospectus and corrected in the Prospectus or the Prospectus
as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Transferor, its directors and officers and each
Person who controls the Transferor within the meaning of Section 15 of the
Act or Section 20 of the 1934 Act, against any losses, claims, damages or
liabilities to which the Transferor may become
-24-
subject, under the Act, the 1934 Act, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that, with respect to each of the
Class A Underwriters, the Class B Underwriters and the Class C
Underwriters, such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with the Class A Underwriters' Information, the Class B Underwriters'
Information or the Class C Underwriters' Information, respectively, and
will reimburse any actual legal or other expenses reasonably incurred by
the Transferor and the Bank in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that in no case shall any Underwriter be
responsible for any amount in excess of the Underwriter's discounts or
commission applicable to the Notes to be sold by such Underwriter
hereunder.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action or the assertion by a
third party of a claim, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under subsection (a)
or (b) above, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not (i)
relieve it from any liability which it may have to any indemnified party
except and to the extent of any prejudice to such indemnifying party
arising from such failure to provide such notice and (ii) in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
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
-25-
indemnified party is subject to the circumstances described in clause (y),
then, to the extent permitted by the rules of professional conduct
applicable to attorneys, all such indemnified parties shall be represented
by one such separate counsel) and (3) all costs and expenses of each such
indemnified party in connection with such action or proceeding shall be
paid by the indemnifying party pursuant to subsection (a) or (b) above,
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation unless, (i) the indemnified party shall
have employed separate counsel in accordance with this sentence or (ii)
the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action and does not include a statement as to, or an
admission of, fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Transferor and the Bank on the one hand and the
Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Transferor and the Bank on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations; provided, however, that in no event shall any
Underwriter be responsible in the aggregate for any 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,
-26-
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Transferor and the Bank under this
Section shall be in addition to any liability which the Transferor or the
Bank may otherwise have and shall extend, upon the same terms and
conditions, to each Person, if any, who controls any Underwriter within
the meaning of the Act or the 1934 Act and each director, officer,
employee, and agent of an Underwriter and 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. (a) Each Underwriter represents and
agrees that it has not and will not, directly or indirectly, offer, sell or
deliver any of the Notes or distribute the Prospectus or any other offering
materials relating to the Notes in or from any jurisdiction except under
circumstances that will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations thereof and that, to the
best of its knowledge and belief, will not impose any obligations on the
Transferor, the Bank or the Issuer except as set forth herein.
(b) Each Underwriter further represents and agrees that (i) it will not
offer or sell any Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing, or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, as amended;
(ii) it will only communicate or cause to be communicated any invitation
or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and
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Markets Act 2000 ("FSMA")) received by it in connection with the issue or
sale of any Notes in circumstances which section 21(1) of the FSMA does
not apply to the Issuer and shall procure that the Notes are not offered
or sold in the United Kingdom other than to persons authorized under the
FSMA or to persons otherwise having professional experience in matters
relating to investments and qualifying as investment professionals under
Article 19 of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2001, as amended or to persons qualifying as high net
worth persons under Article 49 of that Order; (iii) it will comply with
all applicable provisions of the FSMA with respect to anything done by it
in relation to the Notes in, from or otherwise involving the United
Kingdom; and (iv) it will act in accordance with the other United Kingdom
selling restrictions set out in the Prospectus Supplement.
12. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Notes, and if such
nondefaulting Underwriters do not purchase all the Notes, this Agreement will
terminate without liability to any nondefaulting Underwriter, the Transferor or
the Bank. In the event of a default by any Underwriter as set forth in this
Section 12, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter for its liability, if any, to the Transferor
and the Bank and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
13. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to:
Banc One Capital Markets, Inc.
One Bank One Plaza, 7th Floor
Chicago, IL 60670
Attention: Andy Cherna
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street, 10th Floor
Charlotte, NC 28255
Attention: Jim Mackey
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
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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.
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If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Transferor whereupon this letter and your
acceptance shall become a binding agreement among the Transferor, the Bank and
the Underwriters.
Very truly yours,
FIRST NATIONAL FUNDING LLC
By FIRST NATIONAL FUNDING
CORPORATION, its Managing Member
By /s/ Matthew W. Lawver
--------------------------------
Name: Matthew W. Lawver
Title: Senior Vice President
FIRST NATIONAL BANK OF OMAHA
By /s/ Matthew W. Lawver
--------------------------------
Name: Matthew W. Lawver
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof BANC ONE CAPITAL MARKETS, INC.
as Representative of the
Underwriters set forth herein
By /s/ Daniel P. McGarvey
----------------------------------
Name: Daniel P. McGarvey
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
as Representative of the
Underwriters set forth herein
By /s/ James G. Mackey
----------------------------
Name: James G. Mackey
Title: Principal
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SCHEDULE A
Class A Notes
Principal Amount of
Underwriters Class A Notes
- ------------ -------------
Banc One Capital Markets, Inc. $124,500,000
Banc of America Securities LLC $124,500,000
ABN Amro Incorporated $83,000,000
Total $332,000,000
Class B Notes
Principal Amount of
Underwriters Class B Notes
- ------------ -------------
Banc One Capital Markets, Inc. $15,500,000
Banc of America Securities LLC $15,500,000
Total $31,000,000
Class C Notes
Principal Amount of
Underwriters Class C Notes
- ------------ -------------
Banc One Capital Markets, Inc. $18,500,000
Banc of America Securities LLC $18,500,000
Total $37,000,000
ANNEX I
A. 1. Series 1997-2
Class A
Collateral Interest
2. Series 2000-1
Collateral Interest
3. Series 2000-3
Collateral Interest
B. 1. Series 2000-1
Class A
2. Series 2000-3
Class A
3. Series 2000-2
CTO
Class A
Class B
4. Series 2001-1
CTO
Class A
Class B
2