EXHIBIT 1.1
FIRST NATIONAL MASTER NOTE TRUST
$[ ] CLASS A [FLOATING RATE] [ %] ASSET BACKED
NOTES, SERIES [20 - ]
$[ ] CLASS B [FLOATING RATE] [__%] ASSET BACKED
NOTES, SERIES [20 - ]
$[ ] CLASS C [FLOATING RATE] ASSET BACKED
NOTES, SERIES [200_-_]
UNDERWRITING AGREEMENT
[ ] [ ], 200_
[ ]
[ ]
[ ]
As Representative of the Underwriters set forth herein
[ ]
[ ]
[ ]
As Representative of the Underwriters set forth herein
Ladies and Gentlemen:
1. Introductory. First National Funding LLC ("FNF LLC" or the
"Transferor"), a limited liability company formed under the laws of the State of
Nebraska, proposes to cause First National Master Note Trust (the "Issuer") to
issue and sell $[ ] principal amount of Class A [Floating Rate] [__%] Asset
Backed Notes, Series [200_-_] (the "Class A Notes"), $[ ] principal amount of
Class B [Floating Rate] [__%] Asset Backed Notes, Series [200_-_] (the "Class B
Notes") and $[ ] principal amount of Class C [Floating Rate] [__%] Asset Backed
Notes, Series [20 - ] (the "Class C Notes", and together with the Class A Notes
and the Class B Notes, the "Notes") to the Underwriters (as defined hereinafter)
for whom you are acting as Representatives (the "Representatives").
The Issuer is a Delaware statutory trust formed pursuant to (a) a Trust
Agreement, dated as of October 16, 2002 (the "Trust Agreement"), between the
Transferor and Wilmington Trust Company ("WTC"), as owner trustee (the "Owner
Trustee") and (b) the filing of a certificate of trust with the Secretary of
State of Delaware on October 16, 2002. The Notes will be issued pursuant to a
Master Indenture, dated as of October 24, 2002 (the "Master Indenture"), between
the Issuer and The Bank of New York ("BONY"), as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series [200_-_] Indenture
Supplement with respect to the Notes to be
dated as of [ ], [ ] (the "Indenture Supplement," and together with the Master
Indenture, the "Indenture").
Initially, the primary asset of the Issuer will be a certificate (the
"Collateral Certificate") representing a beneficial interest in the assets held
in the First Bankcard Master Credit Card Trust (the "Certificate Trust"), issued
pursuant to the Second Amended and Restated Pooling and Servicing Agreement,
dated as of October 24, 2002 (as amended and supplemented, the "Pooling and
Servicing Agreement"), among FNF LLC, First National Bank of Omaha, a national
banking association (the "Bank"), as servicer (the "Servicer") and BONY, as
trustee (the "Certificate Trust Trustee"), and the Collateral Series Supplement,
dated as of October 24, 2002, to the Pooling and Servicing Agreement (the
"Collateral Supplement" and together with the Pooling and Servicing Agreement,
the "Pooling and Servicing Agreement"). The assets of the Certificate Trust
include, among other things, certain amounts due (the "Receivables") on a
portfolio of Visa(R) and MasterCard(R) revolving credit card accounts owned by
the Bank (the "Accounts").
The Receivables are transferred to the Certificate Trust pursuant to the
Pooling and Servicing Agreement. The Receivables transferred to the Certificate
Trust by the Transferor are acquired by the Transferor from the Bank pursuant to
a Receivables Purchase Agreement, dated as of October 24, 2002 (the "Receivables
Purchase Agreement"), between the Transferor and the Bank. The Collateral
Certificate was transferred by the Transferor to the Issuer pursuant to the
Transfer and Servicing Agreement, dated as of October 24, 2002 (the "Transfer
and Servicing Agreement"), among the Transferor, the Bank, as Servicer, and the
Issuer.
The Bank has agreed to provide notices and perform on behalf of the Issuer
certain other administrative obligations required by the Transfer and Servicing
Agreement, the Master Indenture and each indenture supplement for each series of
Notes issued by the Issuer, pursuant to an Administration Agreement, dated as of
October 24, 2002 (the "Administration Agreement"), between the Bank, as
administrator (in such capacity, the "Administrator"), and the Issuer. The
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement, the Indenture, the Trust Agreement and the
Administration Agreement are referred to herein, collectively, as the
"Transaction Documents."
This Underwriting Agreement is referred to herein as this "Agreement." To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Transaction Documents.
The Transferor and the Bank hereby agree, severally and not jointly, with
the underwriters for the Class A Notes listed on Schedule A hereto (the "Class A
Underwriters") the underwriters for the Class B Notes listed on Schedule A
hereto (the "Class B Underwriters") and the underwriters for the Class C Notes
listed on Schedule A hereto (the "Class C Underwriters" and together with the
Class A Underwriters and the Class B Underwriters, the "Underwriters") as
follows:
2. Representations and Warranties of the Transferor and the Bank. Each of
the Transferor (the representations and warranties as to the Transferor being
given by the Transferor) and the Bank (the representations and warranties as to
the Bank being given by the Bank) represents and warrants to, and agrees with,
the Underwriters that:
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(a) The Transferor is duly organized, validly existing and in good
standing as a limited liability company under the laws of the State of
Nebraska, and has all requisite power, authority and legal right to own
its property, transact the business in which it is now engaged and conduct
its business as described in the Registration Statement (as hereinafter
defined) and Prospectus (as hereinafter defined), and to execute, deliver
and perform its obligations under this Agreement, the Transfer and
Servicing Agreement, the Pooling and Servicing Agreement, the Receivables
Purchase Agreement and the Trust Agreement and to authorize the issuance
of the Notes and the Collateral Certificate.
(b) The Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United States,
and has all requisite power, authority and legal right to own its property
and conduct its credit card business as such properties are presently
owned and such business is presently conducted, and conduct its business
as described in the Registration Statement and the Prospectus, and to own
the Accounts and to execute, deliver and perform its obligations under
this Agreement, the Receivables Purchase Agreement, the Transfer and
Servicing Agreement, the Pooling and Servicing Agreement and the
Administration Agreement.
(c) The execution, delivery and performance of each of the
Transaction Documents to which it is a party, and the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions contemplated hereby and thereby, and with respect to the
Transferor, the issuance of the Notes and the Collateral Certificate, have
been duly and validly authorized by the Transferor and the Bank, as
applicable, by all necessary action on the part of the Transferor and the
Bank, as applicable.
(d) This Agreement has been duly authorized, executed and delivered
by the Transferor and the Bank.
(e) Each of the Transaction Documents has been, or on or before the
Closing Date will be, executed and delivered by the Transferor and/or the
Bank, as applicable, and when executed and delivered by the other parties
thereto, will constitute a legal, valid and binding agreement of the
Transferor and/or the Bank, as applicable, enforceable against the
Transferor and/or the Bank, as applicable, in accordance with its terms,
except, in each case, to the extent that (i) the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect relating to
creditors' or other obligees' rights generally or the rights of creditors
or other obligees of institutions insured by the FDIC, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) certain
remedial provisions of the Indenture may be unenforceable in whole or in
part under the UCC, but the inclusion of such provisions does not render
the other provisions of the Indenture invalid and notwithstanding that
such provisions may be unenforceable in whole or in part, the Indenture
Trustee, on behalf of the Noteholders, will be able to enforce the
remedies of a secured party under the UCC.
(f) The Notes have been duly authorized and will be issued pursuant
to the terms of the Indenture and, when executed by the Owner Trustee on
behalf of the Issuer
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and authenticated by the Indenture Trustee in accordance with the
Indenture and delivered pursuant to the Indenture and this Agreement, will
be duly and validly executed, issued and outstanding and will constitute
legal, valid and binding obligations of the Issuer, enforceable against
the Issuer in accordance with their terms, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights generally,
(B) the effect of general principles of equity including (without
limitation) concepts of materiality, reasonableness, good faith, fair
dealing (regardless of whether considered and applied in a proceeding in
equity or at law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against liability
or requiring contribution from a party for liability where such
indemnification or contribution is contrary to public policy. The Notes
will be in the form contemplated by the Indenture, and the Notes and the
Indenture will conform to the descriptions thereof contained in the
Prospectus and the Registration Statement, as amended or supplemented.
(g) The Collateral Certificate was issued pursuant to the terms of
the Pooling and Servicing Agreement and is validly issued and outstanding
and constitutes the legal, valid and binding obligation of the Certificate
Trust, enforceable against the Certificate Trust in accordance with its
terms, subject to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of general principles of
equity including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of whether considered
and applied in a proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, and (C) the
unenforceability under certain circumstances of provisions indemnifying a
party against liability or requiring contribution from a party for
liability where such indemnification or contribution is contrary to public
policy. The Collateral Certificate is in the form contemplated by the
Pooling and Servicing Agreement, and the Collateral Certificate and the
Pooling and Servicing Agreement conform to the descriptions thereof
contained in the Prospectus and the Registration Statement, as amended or
supplemented.
(h) Neither the Transferor nor the Bank is in violation of any
Requirement of Law or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
instrument to which it is a party or by which it is bound or to which any
of its property is subject, which violation or defaults separately or in
the aggregate would have a material adverse effect on the Issuer, the
Certificate Trust, the Transferor or the Bank.
(i) None of the issuance and sale of the Notes, the issuance of the
Collateral Certificate or the execution and delivery by the Transferor or
the Bank of this Agreement or any Transaction Document to which it is a
party, nor the incurrence by the Transferor or the Bank of the obligations
herein and therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment of the terms
hereof or thereof does or will (i) violate any Requirement of Law
presently in effect, applicable to it or its properties or by which it or
its properties are or may be bound or affected,
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(ii) breach or violate any provision of the organizational documents
applicable to the Transferor or the Bank, (iii) violate any judgment,
order or decree of any court, arbitrator, administrative agency or other
governmental authority applicable to the Transferor or the Bank, (iv)
conflict with, or result in a breach of, or constitute a default under,
any indenture, contract, agreement, mortgage, deed of trust or instrument
to which it is a party or by which it or its properties are bound, (v)
result in the acceleration of any obligation of the Transferor or the
Bank, or (vi) result in the creation or imposition of any Lien upon any of
its property or assets, except for those encumbrances created under the
Transaction Documents.
(j) All approvals, authorizations, consents, orders and other
actions of any Person or of any court or other governmental body or
official required in connection with the execution and delivery by the
Transferor or the Bank of this Agreement or the Transaction Documents to
which it is a party or the consummation of the transactions contemplated
hereunder and thereunder, or the fulfillment of the terms hereof and
thereof have been or will have been obtained on or before the Closing
Date.
(k) All actions required to be taken by the Transferor or the Bank
as a condition to the offer and sale of the Notes as described herein or
the consummation of any of the transactions described in the Prospectus
and the Registration Statement have been or, prior to the Closing Date,
will be taken.
(l) The Master Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies as to form
with the TIA and the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder. The Indenture Supplement is not
required to be qualified under the TIA.
(m) The representations and warranties made by the Transferor in the
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Trust Agreement and the Receivables Purchase Agreement or made in any
Officer's Certificate of the Transferor delivered pursuant to any
Transaction Document to which it is a party will be true and correct at
the time made and on and as of the Closing Date as if set forth herein,
except that to the extent that any such representation or warranty
expressly relates to an earlier or later date, such representation or
warranty is true and correct at and as of such earlier or later date.
(n) The representations and warranties made by the Bank in the
Receivables Purchase Agreement, and in its capacity as Servicer and
Administrator, in the Transfer and Servicing Agreement, the Pooling and
Servicing Agreement and the Administration Agreement, respectively, or
made in any Officer's Certificate of the Bank delivered pursuant to any
Transaction Document to which it is a party will be true and correct at
the time made and on and as of the Closing Date as if set forth herein,
except that to the extent that any such representation or warranty
expressly relates to an earlier or later date, such representation or
warranty is true and correct at and as of such earlier or later date.
(o) The Transferor agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person
a security interest in, or any other right, title or interest in, the
Receivables or the Collateral Certificate, except as
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provided in the Pooling and Servicing Agreement and the Transfer and
Servicing Agreement, and agrees to take all action required by the Pooling
and Servicing Agreement and the Transfer and Servicing Agreement in order
to maintain the security interest in the Receivables and the Collateral
Certificate granted pursuant to the Pooling and Servicing Agreement, the
Transfer and Servicing Agreement and the Indenture, as applicable.
(p) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person
a security interest in, or any other right, title or interest in, the
Receivables, except as provided in the Pooling and Servicing Agreement
(and the predecessor agreement) or the Receivables Purchase Agreement, as
applicable, and agrees to take all action required by the Pooling and
Servicing Agreement or the Receivables Purchase Agreement, as applicable,
in order to maintain the security interests in the Receivables granted
pursuant to the Receivables Purchase Agreement, the Pooling and Servicing
Agreement and the Indenture, as applicable.
(q) A registration statement on Form S-3 (Nos. 333-[ ]-00 and 333-[
]-01), including a form of prospectus and such amendments thereto as may
have been filed prior to the date hereof, relating to the Notes and the
offering thereof in accordance with Rule 415 under the Securities Act of
1933, as amended (the "Act"), has been filed with, and has been declared
effective by, the Commission. If any post-effective amendment to such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment
has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective
Date" means the date of the Effective Time. Such registration statement,
as amended at the Effective Time, is hereinafter referred to as the
"Registration Statement." The Transferor proposes to file with the
Commission pursuant to Rule 424(b) ("Rule 424(b)") under the Act a
supplement (the "Prospectus Supplement") to the prospectus included in the
Registration Statement (such prospectus, in the form it appears in the
Registration Statement or in the form most recently revised and filed with
the Commission pursuant to Rule 424(b), is hereinafter referred to as the
"Base Prospectus") relating to the Notes and the method of distribution
thereof. The Base Prospectus and the Prospectus Supplement, together with
any amendment thereof or supplement thereto, are hereinafter referred to
as the "Prospectus".
(r) On the Effective Date, the Registration Statement did conform in
all material respects to the applicable requirements of the Act and the
rules and regulations of the Commission thereunder (the "Rules and
Regulations") and the TIA and the rules and regulations thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement, the
Registration Statement and the Prospectus conform, and at the time of
filing of the Prospectus pursuant to Rule 424(b) the Registration
Statement and the Prospectus will conform, in all material respects with
the requirements of the Act and the Rules and Regulations and the TIA and
the rules and regulations thereunder and neither of such documents
includes,
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or will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from either of such
documents based upon written information furnished to the Transferor or
the Bank by the Underwriters specifically for use therein. Each of the
Transferor and the Bank hereby acknowledges that (i) the only information
provided by the Class A Underwriters for inclusion in the Registration
Statement and the Prospectus is set forth on the cover page of the
Prospectus Supplement in the table under the heading "Class A Notes" and
on the line across from "Price to public," in the table listing the Class
A Underwriters and the Principal Amount of Class A Notes under the heading
"Underwriting" in the Prospectus Supplement, in the table following the
third paragraph under the heading "Underwriting" in the Prospectus
Supplement on the line across from "Class A Notes", in the table following
the second paragraph under the heading "Underwriting" in the Prospectus
Supplement in the column labeled "Class A Notes" and in the final
paragraph under the heading "Underwriting" in the Prospectus Supplement
(the "Class A Underwriters' Information"), (ii) the only information
provided by the Class B Underwriters for inclusion in the Registration
Statement and the Prospectus is set forth on the cover page of the
Prospectus Supplement in the table under the heading "Class B Notes" and
on the line across from "Price to public," in the table listing the Class
B Underwriters and the Principal Amount of Class B Notes under the heading
"Underwriting" in the Prospectus Supplement, in the table following the
third paragraph under the heading "Underwriting" in the Prospectus
Supplement on the line across from "Class B Notes", in the table following
the second paragraph under the heading "Underwriting" in the Prospectus
Supplement in the column labeled "Class B Notes" and in the final
paragraph under the heading "Underwriting" in the Prospectus Supplement
(the "Class B Underwriters' Information") and (iii) the only information
provided by the Class C Underwriters for inclusion in the Registration
Statement and the Prospectus is set forth on the cover page of the
Prospectus Supplement in the table under the heading "Class C Notes" and
on the line across from "Price to public," in the table listing the Class
C Underwriters and the Principal Amount of Class C Notes under the heading
"Underwriting" in the Prospectus Supplement, in the table following the
third paragraph under the heading "Underwriting" in the Prospectus
Supplement on the line across from "Class C Notes", in the table following
the second paragraph under the heading "Underwriting" in the Prospectus
Supplement in the column labeled "Class C Notes" and in the final
paragraph under the heading "Underwriting" in the Prospectus Supplement
(the "Class C Underwriters' Information").
(s) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise set
forth therein, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Bank or the Transferor.
(t) The computer tape of the Receivables to be created as of
_________, 200_, and made available to the Representatives by the
Servicer, will be complete and accurate in all material respects as of the
date thereof.
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(u) There are no actions, proceedings of investigations pending or,
to the best of its knowledge, threatened against or affecting the
Transferor or the Bank (or any basis therefor known to the Transferor or
the Bank) (i) asserting the invalidity of any of the Transaction
Documents, (ii) seeking to prevent the issuance of the Notes or the
consummation by the Transferor or the Bank of any of the transactions
contemplated by the Transaction Documents, or (iii) which, individually or
in the aggregate, if adversely decided, would materially and adversely
affect the business, financial condition or results of operations of the
Transferor, the Issuer, the Certificate Trust or the Bank or of the
Transferor's or the Bank's ability to consummate the transactions
contemplated by the Transaction Documents.
(v) None of the Issuer, the Certificate Trust, the Transferor, the
Bank, any Affiliates thereof or any of their Agents has taken any action
that would require registration of the Issuer, the Certificate Trust, the
Transferor or the Bank under the Investment Company Act of 1940, nor will
the Issuer, the Certificate Trust, the Transferor, the Bank, any
Affiliates thereof or any of their Agents act, nor have they authorized or
will they authorize any person to act, in such a manner.
(w) It is not necessary to qualify the Pooling and Servicing
Agreement or the Collateral Series Supplement under the 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 [ ]% of the principal amount thereof, $[ ] aggregate principal
amount of the Class A Notes, each Class A Underwriter to purchase the
amounts shown on Schedule A hereto.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Transferor agrees to sell to the Class B Underwriters, and the
Class B Underwriters agree to purchase from the Transferor, at a purchase
price of [ ]% of the principal amount thereof, $[ ] aggregate principal
amount of the Class B Notes, each Class B Underwriter to purchase the
amounts shown on Schedule A hereto.
(c) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set
forth, the Transferor agrees to sell to the Class C Underwriters, and the
Class C Underwriters agree to purchase from the Transferor, at a purchase
price of [ ]% of the principal amount thereof, $[ ] aggregate principal
amount of the Class C Notes, each Class C Underwriter to purchase the
amounts shown on Schedule A hereto.
(d) The Transferor will cause the Issuer to deliver the Notes to the
Underwriters against payment of the purchase price in immediately
available funds, drawn to the order of the Transferor, at the office of [
], in [ ], [ ] at [ ] a.m., Chicago time, on [ ], [ ] such time being
herein referred to as the "Closing
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Date." Each of the Class A Notes, the Class B Notes and the Class C Notes
so to be delivered shall be represented by one or more definitive notes
registered in the name of Cede & Co., as nominee for The Depository Trust
Company. The Notes will be available for inspection, checking and
packaging by the Underwriters at the office at which the Notes are to be
delivered in [ ], [ ] no later than 4:00 p.m., Chicago time, on the
business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Notes for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Transferor. The Transferor agrees with the
Underwriters that:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount
of Notes covered thereby and the terms thereof not otherwise specified in
the Base Prospectus, the price at which such Notes are to be purchased by
the Underwriters, the initial public offering price, the selling
concessions and allowances, and such other information as the Transferor
deems appropriate. The Transferor will transmit the Prospectus, including
such Prospectus Supplement, to the Commission pursuant to Rule 424(b) by a
means reasonably calculated to result in filing with the Commission
pursuant to Rule 424(b). The Transferor will not file any amendment of the
Registration Statement with respect to the Notes or supplement to the
Prospectus unless a copy has been furnished to the Representatives for
their review a reasonable time prior to the proposed filing thereof or to
which the Representatives shall reasonably object in writing. The
Transferor will advise the Representatives promptly of (i) the
effectiveness of any amendment or supplementation of the Registration
Statement or Prospectus, (ii) any request by the Commission for any
amendment or supplementation of the Registration Statement or the
Prospectus or for any additional information, (iii) the receipt by the
Transferor of any notification with respect to the suspension of
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes and (iv) the
institution by the Commission of any stop order proceeding in respect of
the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Transferor promptly will notify the Representatives of such event and
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Underwriters' consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 7.
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(c) As soon as practicable, the Transferor will cause the Issuer to
make generally available to the Noteholders an earnings statement or
statements of the Issuer covering a period of at least 12 months beginning
after the Effective Date which will satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(d) The Transferor will furnish to the Representatives and their
counsel, without charge, copies of the Registration Statement (one of
which will be signed and will include all exhibits), the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representatives reasonably
request. The Transferor will pay the expenses of printing or other
production of all documents relating to the offering of the Notes.
(e) The Transferor will endeavor to qualify the Notes for sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and the determination of the
eligibility for investment of the Notes under the laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect so long as required for the distribution of the
Notes; provided, however, that the Transferor shall not be obligated to
qualify to do business in any jurisdiction where such qualification would
subject the Transferor to general or unlimited service of process in any
jurisdiction where it is not now so subject. The Transferor will promptly
advise the Underwriters of the receipt by the Transferor of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose.
(f) [The Transferor will list the Notes on the [Luxembourg Stock
Exchange] and the Transferor will use its best efforts to maintain such
listing for as long as any of the Notes are outstanding; provided,
however, if such listing becomes impossible to maintain, the Transferor
will use its best efforts to obtain, and will thereafter use its best
efforts to maintain a quotation for, or listing of, the Notes on such
other exchange as is commonly used for the quotation or listing of debt
securities as the Transferor may, with the approval of the
Representatives, decide.]
(g) [The Transferor will furnish from time to time copies of the
Prospectus and any and all documents, instruments, information and
undertakings (in addition to any already published or lodged with the
[Luxembourg Stock Exchange]) and publish all advertisements or other
material and comply with any other requirements of the [Luxembourg Stock
Exchange] that may be necessary in order to effect and maintain such
listing.]
(h) The Transferor will, and will cause the Certificate Trust and
Issuer to, assist the Representatives in making arrangements with DTC,
Euroclear and Clearstream, Luxembourg concerning the issue of the Notes,
arranging with such clearing agency to permit the Notes to be eligible for
clearance and settlement through such clearing agency and related matters.
(i) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representatives copies of each
certificate and the annual
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statements of compliance delivered to (a) the Certificate Trustee and each
Rating Agency pursuant to Sections 3.04(b) and 3.05 of the Pooling and
Servicing Agreement and independent certified public accountant's
servicing reports furnished to the Certificate Trustee and each Rating
Agency pursuant to Sections 3.06(a) and (b) of the Pooling and Servicing
Agreement, (b) the Owner Trustee, the Indenture Trustee and each Rating
Agency pursuant to Section 3.05 of the Transfer and Servicing Agreement
and independent certified public accountant's servicing reports furnished
to the Indenture Trustee and the Rating Agencies pursuant to Sections
3.06(a) and (b) of the Transfer and Servicing Agreement, and (c) the
Series [200_-_] Noteholders pursuant to Sections 5.03(a) and (d) of the
Indenture Supplement, by first class mail promptly after such
certificates, statements and reports are furnished to the Certificate
Trustee, the Owner Trustee, the Indenture Trustee, the Series [200_-_]
Noteholders or the Rating Agencies, as the case may be.
(j) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representatives, by first-class
mail as soon as practicable (i) all documents concerning the Receivables,
the Collateral Certificate or the Notes distributed by the Transferor or
the Servicer (under each of the Pooling and Servicing Agreement and
Transfer and Servicing Agreement) to the Certificate Trustee, the Owner
Trustee, the Indenture Trustee or the Noteholders, or filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) any order of the Commission under the Act or
the Exchange Act applicable to the Issuer, to the Certificate Trust, or to
the Transferor, or pursuant to a "no-action" letter obtained from the
staff of the Commission by the Transferor and affecting the Issuer, the
Certificate Trust, or the Transferor and (iii) from time to time, such
other information concerning the Issuer or the Certificate Trust as the
Representatives may reasonably request.
(k) To the extent, if any, that any of the ratings provided with
respect to the Notes by any Rating Agency are conditional upon the
furnishing of documents or the taking of any other actions by the
Transferor, the Transferor shall furnish such documents and take any such
other actions as are necessary to satisfy such condition.
(l) In connection with any disposition of the Definitive Notes
pursuant to a transaction made in compliance with all applicable transfer
restrictions contemplated herein and in the Indenture, the Transferor will
cause the Issuer to reissue notes evidencing such Definitive Notes as
required pursuant to the Indenture.
(m) Until 30 days following the Closing Date, none of the Transferor
or any trust or other entity originated, directly or indirectly, by the
Transferor (including, without limitation, the Certificate Trust or the
Issuer) will, without the prior written consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any asset-backed securities
(other than the Notes).
(n) After the Certificate Trust Termination Date, the Transferor
shall cause its computer records relating to the Receivables to be marked
in accordance with Section 2.01(c) of the Transfer and Servicing Agreement
to show the Issuer's absolute ownership of the Receivables, and from and
after the Certificate Trust Termination Date the
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Transferor shall not take any action inconsistent with the Issuer's
ownership of the Receivables, other than as permitted by the Transfer and
Servicing Agreement.
(o) The Transferor will enter into or has entered into the Pooling
and Servicing Agreement, the Transfer and Servicing Agreement and other
instruments to which this Agreement and the Pooling and Servicing
Agreement and the Transfer and Servicing Agreement contemplate it will be
a party on or prior to the Closing Date. The Transferor will cause the
Certificate Trust and the Issuer to enter into any instruments to which
this Agreement or any Transaction Document contemplates that either will
be a party on or prior to the Closing Date.
6. Certain Agreements of the Bank.
(a) Except as disclosed on Schedule B hereto, until 30 days
following the Closing Date, none of the Bank or any trust or other entity
originated, directly or indirectly, by the Bank (including, without
limitation, the Transferor) will, without the prior written consent of the
Representatives, which shall not be unreasonably withheld, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any asset-backed securities (other than the
Notes).
(b) The Bank will enter into the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Transfer and Servicing Agreement and
other instruments to which this Agreement and the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, and the Transfer and
Servicing Agreement contemplate it will be a party on or prior to the
Closing Date.
7. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties by the Transferor and the Bank
herein, to the accuracy of the statements of officers of the Transferor and the
Bank made pursuant to the provisions hereof, to the performance by the
Transferor and the Bank of their respective obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the [Closing Date] [the date of this Agreement],
the Representatives shall have received an agreed upon procedures letter
of [ ], dated on or prior to the date of the Prospectus Supplement,
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.
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(c) Subsequent to the execution and delivery of this Agreement none
of the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended, limited or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction or any suspension of trading
of any securities of the Certificate Trust, the Issuer, the Bank, the
Transferor or First National of Nebraska, Inc. or any of their Affiliates
on any exchange or in the over-the-counter market; (ii) a banking
moratorium shall have been declared by Federal or state authorities; (iii)
any downgrading in the rating of any debt securities of the Certificate
Trust, the Issuer, the Bank, the Transferor, First National of Nebraska,
Inc. or any of their Affiliates by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iv) the United
States shall have become engaged in hostilities, there shall have been an
escalation of hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
any other substantial national or international calamity or emergency
which, in the judgment of the Representatives, makes it impractical or
inadvisable to proceed with the completion and sale of and payment for the
Notes; and (v) any material adverse change in the financial markets for
asset-backed securities in the United States which, in the
Representatives' judgment, makes it impractical to proceed with completion
of the sale of and payment for the Notes.
(d) The Representatives shall have received an opinion or opinions,
dated the Closing Date, of 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.
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(iii) Neither the execution and delivery of the Transaction
Documents and this Agreement by either FNBO Entity that is party
thereto nor the consummation of any of the transactions contemplated
therein nor the fulfillment of the terms thereof, conflicts with or
violates, results in a material breach of or constitutes a default
under (A) any Requirements of Law applicable to such FNBO Entity,
(B) any term or provision of any order known to such firm to be
currently applicable to such FNBO Entity of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over such FNBO Entity or (C) any term or provision of any indenture
or other agreement or instrument known to such firm to which such
FNBO Entity is a party or by which either of them or any of their
properties are bound and, as to FNBO, which has been identified to
us as material to the business or operations of FNBO.
(iv) Except as otherwise disclosed in the Prospectus (and any
supplement thereto) or the Registration Statement, there is no
pending or, to the best of such firm's knowledge, threatened action,
suit or proceeding before any court or governmental agency,
authority or body or any arbitrator with respect to the Certificate
Trust, the Issuer, the Collateral Certificate, the Notes or any of
the Transaction Documents or any of the transactions contemplated
therein with respect to an FNBO Entity which, in the case of any
such action, suit or proceeding if adversely determined, would have
a material adverse effect on the Notes, the Collateral Certificate,
the Certificate Trust or the Issuer or upon the ability of either
FNBO Entity to perform its obligations under the Transaction
Documents.
(v) Each of the Transaction Documents to which an FNBO Entity
is a party constitutes the legal, valid and binding agreement of
such Person under the laws of Nebraska, enforceable against each
such Person in accordance with its terms, subject to (A) the effect
of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally and the rights of creditors of national banking
associations (including, without limitation, the determination
pursuant to 12 U.S.C.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.
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(vi) This Agreement constitutes the legal, valid and binding
obligation of the Transferor and the Bank under the laws of the
State of New York, enforceable against the Transferor and the Bank
in accordance with its terms, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally and the rights of creditors of national banking
associations (including, without limitation, the determination
pursuant to 12 U.S.C.Section 1821(e) of any liability for the
disaffirmance or repudiation of any contract), (B) the effect of
general principles of equity including (without limitation) concepts
of materiality, reasonableness, good faith, fair dealing (regardless
of whether considered and applied in a proceeding in equity or at
law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against
liability or requiring contribution from a party for liability where
such indemnification or contribution is contrary to public policy.
(vii) The Notes are in due and proper form and when executed,
authenticated and delivered as specified in the Indenture, and when
delivered against payment of the consideration specified in this
Agreement, they will be validly issued and outstanding, will
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms and
will be entitled to the benefits of the Indenture, subject to (A)
the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of general principles of
equity including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of whether
considered and applied in a proceeding in equity or at law), and
also to the possible unavailability of specific performance or
injunctive relief, (C) the unenforceability under certain
circumstances of provisions indemnifying a party against liability
or requiring contribution from a party for liability where such
indemnification or contribution is contrary to public policy and (D)
certain remedial provisions of the Indenture may be unenforceable in
whole or in part under the UCC, but the inclusion of such provisions
does not render the other provisions of the Indenture invalid and
notwithstanding that such provisions may be unenforceable in whole
or in part, the Indenture Trustee, on behalf of the Noteholders,
will be able to enforce the remedies of a secured party under the
UCC.
(viii) The Collateral Certificate is in due and proper form,
validly issued and outstanding and constitutes the legal, valid and
binding obligation of the Certificate Trust, enforceable against the
Certificate Trust in accordance with its terms and is entitled to
the benefits of the Pooling and Servicing Agreement, subject to (A)
the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of general principles of
equity including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of whether
considered and applied in a proceeding in equity or at law), and
also to the possible unavailability of specific performance or
injunctive relief,
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and (C) the unenforceability under certain circumstances of
provisions indemnifying a party against liability or requiring
contribution from a party for liability where such indemnification
or contribution is contrary to public policy.
(ix) The Registration Statement has become effective under the
Act, and the 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 the Trust Agreement
and Administration Agreement), the Collateral Certificate and the
Notes conform in all material respects to the descriptions thereof
contained in the Prospectus.
(xii) The Master Indenture has been duly qualified under the
TIA and complies as to form with the TIA and the rules and
regulations of the Commission thereunder. The Indenture Supplement
is not required to be qualified under the TIA. The Issuer is not
now, and immediately following the issuance of the Notes pursuant to
the Indenture will not be, required to be registered under the
Investment Company Act of 1940, as amended.
(xiii) The Pooling and Servicing Agreement need not be
qualified under the TIA. The Certificate Trust is not now, and
immediately following the issuance of the Notes pursuant to the
Indenture, will not be required to be registered under the
Investment Company Act of 1940, as amended.
(xiv) For federal income tax purposes: (i) the Notes will be
characterized as debt (ii) neither the Certificate Trust nor the
Note Trust will be classified as an association or publicly traded
partnership taxable as a corporation for federal income tax
purposes; (iii) assuming that the outstanding securities listed in
Annex A (the "Prior Opinion Obligations") are characterized as debt,
and the Series 2000-1 Collateral Interest and the Series 2000-3
Collateral Interest are characterized as debt or partnership
interests, for federal income tax purposes immediately prior to the
issuance of the Notes, the issuance of the Notes will not adversely
affect the federal income tax characterization of the Prior Opinion
Obligations, the Series 2000-1 Collateral Interest or the Series
2000-3 Collateral Interest; and (iv) the issuance of the Notes will
not otherwise constitute an event
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in which a gain or loss would be recognized by any holders of Prior
Opinion Obligations.
(xv) Each of the Indenture and the Administration Agreement
constitutes the legal, valid and binding obligation of the Issuer
under the laws of the State of Nebraska, subject to (A) the effect
of bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally, (B) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good
faith, fair dealing (regardless of whether considered and applied in
a proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring contribution
from a party for liability where such indemnification or
contribution is contrary to public policy and (D) certain remedial
provisions of the Indenture may be unenforceable in whole or in part
under the UCC, but the inclusion of such provisions does not render
the other provisions of the Indenture invalid and notwithstanding
that such provisions may be unenforceable in whole or in part, the
Indenture Trustee, on behalf of the Noteholders, will be able to
enforce the remedies of a secured party under the UCC.
(xvi) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations under the Act, except that in each case such counsel
need not express any opinion as to the financial and statistical
data included therein or excluded therefrom or the exhibits to the
Registration Statement and, except as and, to the extent set forth
in paragraphs (x) and (xi), such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus.
(xvii) If the FDIC were appointed as conservator or receiver
for the Bank (a) the FDIC regulation entitled "Treatment by the
Federal Deposit Insurance Corporation as Conservator or Receiver of
Financial Assets Transferred by an Insured Depository Institution in
Connection with a Securitization or Participation," 12 CFR Section
360.6 (the "Rule") would be applicable to the transfers of
Receivables by Bank to Transferor under the Receivables Purchase
Agreement and (b) under the Rule, the FDIC could not, by exercise of
its authority to disaffirm or repudiate contracts under 12 U.S.C.
Section 1821(e), reclaim or recover the Receivables or the proceeds
thereof from Transferor, the Certificate Trust or the Issuer or
recharacterize the Receivables or the proceeds thereof as property
of Bank or the receivership for Bank.
(xviii) If the FDIC were to be appointed as a conservator or
receiver for Bank pursuant to Section 11(c) of FDIA, a court having
jurisdiction over the conservatorship or receivership would, in a
properly presented case, (a) hold the transfers of Receivables by
the Bank to the Transferor under the Receivables Purchase Agreement
to be a true conveyance or a capital contribution and not a
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secured loan or a grant of a security interest to secure a loan and
(b) determine that the rights, titles, powers, and privileges of the
FDIC as conservator or receiver of the Bank would not extend to the
Receivables.
(xix) Certain matters regarding and related to the limited
liability company agreement of the Transferor.
(xx) Certain matters relating to the characterization of the
Receivables under the UCC and to the transfer of the Receivables
from the Transferor to the Certificate Trust under the Pooling and
Servicing Agreement.
(xxi) Certain matters relating to the characterization of the
Collateral Certificate under the UCC and to the transfer of the
Collateral Certificate from the Transferor to the Issuer under the
Transfer and Servicing Agreement.
(xxii) Certain matters with respect to the attachment and
perfection of the ownership interests and security interests granted
under the Transaction Documents in the Receivables, the Collateral
Certificate and the proceeds thereof, including that such assets are
not subject to other Liens of record.
(xxiii) The Indenture Trustee is the registered holder of the
Collateral Certificate, subject to no Liens of record.
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor and the Bank and their
accountants, the Underwriters and counsel to the Underwriters concerning
the Registration Statement and the Prospectus and have considered the
matters to be stated therein and the matters stated therein, although they
are not independently verifying the accuracy, completeness or fairness of
such statements (except as stated in paragraphs (x) and (xi) above) and
based upon and subject to the foregoing, nothing has come to such
counsel's attention to cause such counsel to believe that the Registration
Statement (excluding any exhibits filed therewith), at the time it became
effective, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus, as of the
date hereof, contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such
counsel has not been requested to, and does not, make any comment in such
opinion with respect to the financial statements, supporting schedules and
other financial or statistical information contained in the Registration
Statement or the Prospectus).
In rendering such opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, State of Nebraska and the United States, to the extent deemed
proper and stated in such opinion, upon the opinion of other counsel of
good standing believed by such counsel to be reliable and acceptable to
the Representative and its counsel, and (B) as to matters of fact, on
certificates of responsible officers of the Issuer, the Bank, the
Transferor and public officials.
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(e) The Representatives shall have received from Mayer, Brown, Rowe & Maw,
special counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters relating to this transaction as the
Representatives may require, and the Transferor shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Representatives shall have received a certificate from each of the
Transferor and the Bank, dated the Closing Date, of a Treasurer, Vice President
or more senior officer of the Transferor or the Bank, as the case may be, in
which such officer, to the best of his/her knowledge after reasonable
investigation, shall state that (u) the representations and warranties of the
Transferor and the Bank, as the case may be, in this Agreement are true and
correct on and as of the Closing Date, (v) the Transferor or the Bank, as the
case may be, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing Date,
(w) the representations and warranties of the Transferor or the Bank, as the
case may be, contained in this Agreement and the Transaction Documents to which
it is a party are true and correct as of the dates specified herein and therein,
(x) no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
threatened by the Commission, (y) nothing has come to such officers' attention
that would lead such officers to believe that the Registration Statement or the
Prospectus, and any amendment or supplement thereto, as of its date and as of
the Closing Date, contained an untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
(z) subsequent to the date of the Prospectus, there has been no material adverse
change in the financial position or results of operation of the Bank's credit
card business except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(g) The Representative shall have received an opinion of [ ], counsel to
the Owner Trustee, dated the Closing Date, satisfactory in form and substance to
the Representative and its counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly existing as a
banking corporation in good standing under the laws of the State of
Delaware.
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement.
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes a legal, valid and binding
obligation of the Owner Trustee, enforceable against the Owner Trustee in
accordance with its terms.
(iv) Neither the execution, delivery or performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the transactions
by the Owner Trustee contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the giving of
notice to, the filing, registration or qualification with, or the taking
of any other action in respect of,
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any governmental authority or agency of the State of Delaware or the
United States of America governing the trust powers of the Owner Trustee
(other than the filing of the certificate of trust with the Delaware
Secretary of State).
(v) Neither the execution, delivery and performance, by the Owner
Trustee, of the Trust Agreement, nor the consummation of the transactions
by the Owner Trustee contemplated thereby, is in violation of the
[charter] [articles of incorporation] or bylaws of the Owner Trustee or of
any law, governmental rule or regulation of the State of Delaware or of
the United States of America governing trust powers of the Owner Trustee
or, to such counsel's knowledge, without independent investigation, any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to
which it is a party or by which it is bound or, to such counsel's
knowledge, without independent investigation, of any judgment or order
applicable to the Owner Trustee.
(vi) To such counsel's knowledge, without independent investigation,
there are no pending or threatened actions, suits or proceedings affecting
the Owner Trustee before any court or other governmental authority which,
if adversely determined, would materially and adversely affect the ability
of the Owner Trustee to carry out the transactions contemplated by the
Trust Agreement.
(h) The Representative shall have received an opinion of [ ], special
Delaware counsel to the Issuer, dated the Closing Date, satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Issuer has been duly formed and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act, 12
Del. C. 3801 et seq. (referred to in this subsection (h) as the "Trust
Act").
(ii) The Trust Agreement is a legal, valid and binding obligation of
the Transferor and the Owner Trustee, enforceable against the Transferor
and the Owner Trustee, in accordance with its terms.
(iii) Under the Trust Act and the Trust Agreement, the execution and
delivery of the Transfer and Servicing Agreement and the Indenture, the
issuance of the Notes, and the granting of the Collateral to the Indenture
Trustee as security for the Notes has been duly authorized by all
necessary trust action on the part of the Issuer.
(iv) Under the Trust Act and the Trust Agreement, the Issuer has (i)
the power and authority to execute, deliver and perform its obligations
under the Administrative Agreement, the Indenture and the Transfer and
Servicing Agreement (collectively referred to in this subsection (h) as
the "Trust Documents") and the Notes, and (ii) duly authorized, executed
and delivered such agreements and obligations.
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(v) Neither the execution, delivery and performance by the Issuer of
the Trust Documents or the Notes, nor the consummation by the Issuer of
any of the transactions by the Issuer contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification with, or
the taking of any other action in respect of, any governmental authority
or agency of the State of Delaware, other than the filing of the
certificate of trust with the Delaware Secretary of State which
certificate of trust has been duly filed and the filing of any financing
statements with the Delaware Secretary of State in connection with the
Indenture.
(vi) Neither the execution, delivery and performance by the Issuer
of the Trust Documents, nor the consummation by the Issuer of the
transactions contemplated thereby, is in violation of the Trust Agreement
or of any law, rule, or regulation of the State of Delaware applicable to
the Issuer.
(vii) Under Section 3805(b) of the Act, no creditor of the holder of
the beneficial interest in the Trust shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Issuer except in accordance with the terms
of the Trust Agreement.
(viii) Under Section 3808(a) and (b) of the Act, the Issuer may not
be terminated or revoked by the holder of the beneficial interest in the
Issuer, and the dissolution, termination or bankruptcy of the holder of
the beneficial interest in the Issuer shall not result in the termination
or dissolution of the Issuer, except to the extent otherwise provided in
the Trust Agreement.
(ix) The Owner Trustee is not required to hold legal title to the
Trust Estate in order for the Issuer to qualify as a statutory trust under
the Act.
(i) The Representative shall have received an opinion of [ ], 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.
-21-
(iii) The Indenture Trustee has duly executed and authenticated the
Notes.
(iv) The Indenture Trustee is duly authorized and empowered to
exercise trust powers under applicable law and to perform under the
Transaction Documents to which it is a party, or which it has
acknowledged.
(v) None of (x) the execution and authentication of the Notes, (y)
the acknowledgement of the Transfer and Servicing Agreement or (z) the
execution, delivery and performance of the Indenture by the Indenture
Trustee conflicts with or will result in a violation of (A) any law or
regulation of the United States of America or the State of New York
governing the banking or trust powers of the Indenture Trustee or (B) the
organizational documents of the Indenture Trustee.
(vi) No approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State of
New York having jurisdiction over the banking or trust powers of the
Indenture Trustee is required in connection with the execution and
delivery by the Indenture Trustee of the Indenture or the performance by
the Indenture Trustee of the terms of the Indenture or the acknowledgement
of the Transfer and Servicing Agreement.
(j) The Representatives shall have received an opinion of [ ], counsel to
the Certificate Trust Trustee dated the Closing Date, satisfactory in form and
substance to the Representatives and their counsel, to the effect that:
(i) The Certificate Trustee is organized and validly existing as an
New York banking corporation in good standing under the laws of the State
of New York and is authorized and qualified to accept the trusts imposed
by the Pooling and Servicing Agreement and to act as Certificate Trust
Trustee under the Pooling and Servicing Agreement.
(ii) The Certificate Trust Trustee has duly authorized, executed and
delivered the Pooling and Servicing Agreement. Assuming the due
authorization, execution and delivery thereof by the other parties
thereto, the Pooling and Servicing Agreement is the legal, valid and
binding obligation of the Certificate Trust Trustee, enforceable against
the Certificate Trust Trustee in accordance with its terms, subject to
bankruptcy and insolvency laws and general principles of equity.
(iii) The Certificate Trust Trustee has duly executed, authenticated
and delivered the Collateral Certificate.
(iv) The Certificate Trust Trustee is duly authorized and empowered
to exercise trust powers under applicable law and to perform under the
Transaction Documents to which it is a party or which it has acknowledged.
(v) None of (y) the execution and authentication of the Collateral
Certificate, and (z) the execution, delivery and performance of the
Pooling and
-22-
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 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.
-23-
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Representatives, this
Agreement and all obligations of the Representatives hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Certificate Trust in writing or by
telephone or telegraph confirmed in writing.
8. Reimbursement of Expenses. The Transferor agrees to pay all costs and
expenses in connection with the transaction herein contemplated (whether or not
consummated), including, without limiting the generality of the foregoing: all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) incident to the qualification of
the Notes for investment under the laws of such jurisdictions as either
Representative designates, (iii) for any filing fee of the National Association
of Securities Dealers, Inc. relating to the Notes, (iv) incident to the
preparation, printing (including word processing and duplication costs) and
delivery of the preliminary Prospectus ("Preliminary Prospectus") and the
Prospectus (including in each case all exhibits, amendments, attachments and
supplements thereto), (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Preliminary Prospectus, the Prospectus, the Transaction Documents and the
furnishing to the Representatives of copies of the Prospectus as herein
provided, (vi) constituting the fees and disbursements of the Representatives'
counsel and the Bank's and the Transferor's counsel and accountants, (vii)
payable to each Rating Agency in connection with the ratings of the Notes and
(viii) in connection with the structuring and marketing of the Notes (and any
other miscellaneous expenses in connection therewith); provided that the
Representatives shall not be obligated to pay any expenses of a defaulting
Representative.
9. Indemnification and Contribution.
(a) The Transferor and the Bank, jointly and severally, will
indemnify and hold harmless each Underwriter, the respective directors,
officers, employees and agents of each Underwriter and each Person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act (the "Indemnified Parties") from 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
-24-
action as such expenses are incurred; provided, however, that Transferor
and the Bank will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with the Class A Underwriters' Information or the Class B Underwriters'
Information or the Class C Underwriters' Information; provided further,
that the Transferor and the Bank will not be liable to any Underwriter
under the indemnity agreement in this subsection (a) with respect to any
preliminary prospectus to the extent that any loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter
sold Notes to a Person as to whom it is established that there was not
sent or given, at or prior to written confirmation of such sale, a copy of
the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by
the Act if the Transferor or the Bank notified the Representative in
writing in accordance with Section 5(a) hereof and previously furnished
copies of the Prospectus (excluding documents incorporated by reference)
in the quantity requested in accordance with Section 5(d) hereof to such
Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained
in the preliminary prospectus and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Transferor, its directors and officers and each
Person who controls the Transferor within the meaning of Section 15 of the
Act or Section 20 of the 1934 Act, against any losses, claims, damages or
liabilities to which the Transferor may become subject, under the Act, the
1934 Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that, with respect to each of the Class A Underwriters, the
Class B Underwriters and the Class C 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
-25-
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not (i) relieve it from
any liability which it may have to any indemnified party except and to the
extent of any prejudice to such indemnifying party arising from such
failure to provide such notice and (ii) in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in subsection (a) or (b)
above. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
provided, however, that if (x) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest which, if such counsel had been
retained, would have required such counsel to withdraw from such
representation, (y) the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it that
are different from or additional to those available to the indemnifying
party or to other indemnified parties, or (z) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after receipt by
the indemnifying party of notice of the institution of such action or
proceeding, then, in each such case, (1) the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties, (2) such indemnified party or parties shall
have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties (provided that, if more than one
indemnified party is subject to the circumstances described in clause (y)
, then, to the extent permitted by the rules of professional conduct
applicable to attorneys, all such indemnified parties shall be represented
by one such separate counsel) and (3) all costs and expenses of each such
indemnified party in connection with such action or proceeding shall be
paid by the indemnifying party pursuant to subsection (a) or (b) above,
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently 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.
-26-
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Transferor and the Bank on the one hand and the
Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Transferor and the Bank on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations; provided, however, that in no event shall any
Underwriter be responsible in the aggregate for any amount in excess of
the Underwriter's discount or commission applicable to the Notes to be
sold by such Underwriter hereunder. The relative benefits received by the
Transferor and the Bank on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) of the Notes received by the
Transferor bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Transferor or the Bank or the Underwriters. The Transferor, the
Bank and the Representatives agree that is would not be just and equitable
if contribution were determined by pro rata allocation or any other method
of allocation that does not take into account the equitable considerations
referred to above. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject
of this subsection (d). No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Transferor and the Bank under this
Section shall be in addition to any liability which the Transferor or the
Bank may otherwise have and shall extend, upon the same terms and
conditions, to each Person, if any, who controls any Underwriter within
the meaning of the Act or the 1934 Act and each director, officer,
employee, and agent of an Underwriter and each such Person shall have the
same rights to contribution as the Underwriter; and the obligations of any
Underwriter under this Section shall be in addition to any liability that
such Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Transferor or the Bank, to each
officer of the Transferor or the Bank who has signed the Registration
Statement and to each Person, if any, who controls the Transferor or the
Bank within the meaning of the Act or the 1934 Act and each director,
officer, employee, and agent of Transferor or Bank and each such Person
shall have the same rights to contribution as the Transferor or Bank, as
applicable.
-27-
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor and the Bank or their officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of the Underwriters, the Transferor, the Bank or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated or if for any reason other than default by the Underwriters the
purchase of the Notes by the Underwriters is not consummated, the Transferor and
the Bank shall remain responsible for the expenses to be paid by them pursuant
to Section 8 and the respective obligations of the Transferor, the Bank and the
Underwriters pursuant to Section 9 shall remain in effect.
11. Obligations of the Underwriters. (a) Each Underwriter represents and
agrees that it has not and will not, directly or indirectly, offer, sell or
deliver any of the Notes or distribute the Prospectus or any other offering
materials relating to the Notes in or from any jurisdiction except under
circumstances that will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations thereof and that, to the
best of its knowledge and belief, will not impose any obligations on the
Transferor, the Bank or the Issuer except as set forth herein.
(b) Each Underwriter further represents, warrants and agrees that
(i) it will not offer or sell prior to the expiry of a period of six
months from the Closing Date specified in the Prospectus Supplement, any
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing, or disposing of
investments (as principal or agent) for the purposes of their businesses
or otherwise in circumstances which have not resulted and will not result
in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, as amended; (ii) it will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 ("FSMA")) received by it in
connection with the issue or sale of any Notes in circumstances which
section 21(1) of the FSMA does not apply to the Issuer and shall procure
that the Notes are not offered or sold in the United Kingdom other than to
persons authorized under the FSMA or to persons otherwise having
professional experience in matters relating to investments and qualifying
as investment professionals under Article 19 of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2001, as amended or to
persons qualifying as high net worth persons under Article 49 of that
Order or to any other Person to whom the Notes may otherwise lawfully be
offered or to whom an invitation or inducement to engage in investment
activity in connection with the issue or sale of the Notes may otherwise
lawfully be communicated or caused to be communicated; (iii) it will
comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Notes in, from or otherwise involving the
United Kingdom; and (iv) it will act in accordance with the other United
Kingdom selling restrictions set out in the Prospectus Supplement.
12. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters
-28-
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:
[ ]
Attention: [ ]
--------------
[ ]
Attention: [ ]
--------------
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN AN ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTION DOCUMENTS OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
16. Representatives. The Representatives will act for the several
Underwriters in connection with this Agreement and the transactions contemplated
hereby and any action undertaken under this Agreement taken by the
Representatives will be binding upon the Underwriters.
[Signatures Follow on Next Page]
-29-
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Transferor whereupon this letter and your
acceptance shall become a binding agreement among the Transferor, the Bank and
the Underwriters.
Very truly yours,
FIRST NATIONAL FUNDING LLC
By FIRST NATIONAL FUNDING
CORPORATION, its Managing Member
By
--------------------------------
Name:
Title:
FIRST NATIONAL BANK OF OMAHA
By
--------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[ ]
as Representative of the
Underwriters set forth herein
By
----------------------------
Name:
Title:
[ ]
as Representative of the
Underwriters set forth herein
By
----------------------------
Name:
Title:
S-1
SCHEDULE A
Class A Notes
Principal Amount of
Underwriters Class A Notes
- ------------ -------------
Total $
Class B Notes
Principal Amount of
Underwriters Class B Notes
- ------------ -------------
Total $
Class C Notes
Principal Amount of
Underwriters Class C Notes
- ------------ -------------
Total $
i
SCHEDULE B
Other Transactions
[TO BE COMPLETED]
ii
ANNEX I
FIRST BANKCARD MASTER CREDIT CARD TRUST
Class A Variable Funding Certificates, Series 2000-1
Class A Floating Rate Asset Backed Certificates, Series 2000-2
Class B Floating Rate Asset Backed Certificates, Series 2000-2
Floating Rate Collateralized Trust Obligations, Series 2000-2
Class A Variable Funding Certificates, Series 2000-3
Class A Floating Rate Asset Backed Certificates, Series 2001-1
Class B Floating Rate Asset Backed Certificates, Series 2001-1
Floating Rate Collateralized Trust Obligations, Series 2001-1
FIRST NATIONAL MASTER NOTE TRUST
Class A Floating Rate Asset Backed Notes, Series 2002-1
Class B Floating Rate Asset Backed Notes, Series 2002-1
Class C Floating Rate Asset Backed Notes, Series 2002-1
Class A Floating Rate Asset Backed Notes, Series 2002-2
Class B Floating Rate Asset Backed Notes, Series 2002-2
Class A Floating Rate Asset Backed Notes, Series 2003-1
Class B 2.76% Asset Backed Notes, Series 2003-1
Class C Floating Rate Asset Backed Notes, Series 2003-1
iii