Exhibit 1.1
EXECUTION COPY
FIRST NATIONAL MASTER NOTE TRUST
$411,250,000 CLASS A FLOATING RATE ASSET BACKED
NOTES, SERIES 2007-1
$40,000,000 CLASS B FLOATING RATE ASSET BACKED
NOTES, SERIES 2007-1
$48,750,000 CLASS C FLOATING RATE ASSET BACKED
NOTES, SERIES 2007-1
UNDERWRITING AGREEMENT
April 18, 2007
J.P. Morgan Securities Inc.
270 Park Avenue, 10th Floor
New York, New York 10017
Banc of America Securities LLC
Hearst Tower
214 North Tryon Street, 21st Floor
Charlotte, NC 28255
each acting on behalf of itself and
as Representative of the several
Underwriters named in Schedule A hereto
(together, the "Representatives")
Ladies and Gentlemen:
1. Introductory. First National Funding LLC ("FNF LLC" or the
"Transferor"), a limited liability company formed under the laws of the State of
Nebraska, proposes to cause First National Master Note Trust (the "Issuer") to
issue and sell $411,250,000 principal amount of Class A Floating Rate Asset
Backed Notes, Series 2007-1 (the "Class A Notes"), $40,000,000 principal amount
of Class B Floating Rate Asset Backed Notes, Series 2007-1 (the "Class B Notes")
and $48,750,000 principal amount of Class C Floating Rate Asset Backed Notes,
Series 2007-1 (the "Class C Notes", and together with the Class A Notes and the
Class B Notes, the "Notes") to the Underwriters (as defined hereinafter) for
whom you are acting as Representatives.
6
The Issuer is a Delaware statutory trust formed pursuant to (a) a Trust
Agreement, dated as of October 16, 2002 (the "Trust Agreement"), between the
Transferor and Wilmington Trust Company ("WTC"), as owner trustee (the "Owner
Trustee") and (b) the filing of a certificate of trust with the Secretary of
State of Delaware on October 16, 2002. The Notes will be issued pursuant to a
Master Indenture, dated as of October 24, 2002 (as amended, the "Master
Indenture"), between the Issuer and The Bank of New York Trust Company, N.A.
(successor to The Bank of New York) ("BNYTC"), as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series 2007-1 Indenture Supplement
with respect to the Notes to be dated as of the Closing Date (as defined below)
(the "Indenture Supplement," and together with the Master Indenture, the
"Indenture").
The primary asset of the Issuer is a certificate (the "Collateral
Certificate") representing a beneficial interest in the assets held in the First
Bankcard Master Credit Card Trust (the "Certificate Trust"), issued pursuant to
the Second Amended and Restated Pooling and Servicing Agreement, dated as of
October 24, 2002 (as amended and supplemented, the "Pooling and Servicing
Agreement"), among FNF LLC, First National Bank of Omaha, a national banking
association (the "Bank"), as servicer (the "Servicer") and BNYTC (successor to
The Bank of New York), as trustee (the "Certificate Trust Trustee"), and the
Collateral Series Supplement, dated as of October 24, 2002, to the Pooling and
Servicing Agreement (the "Collateral Supplement" and together with the Pooling
and Servicing Agreement, the "Pooling and Servicing Agreement"). The assets of
the Certificate Trust include, among other things, certain amounts due (the
"Receivables") on a portfolio of Visa(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 (as amended, the
"Receivables Purchase Agreement"), between the Transferor and the Bank. The
Collateral Certificate was transferred by the Transferor to the Issuer pursuant
to the Transfer and Servicing Agreement, dated as of October 24, 2002 (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.
7
The Transferor has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933 (the "Act"), a registration statement on Form S-3 (having
the registration number 333-140273), including a form of prospectus and a form
of prospectus supplement and such amendments thereto as may have been filed
prior to the date hereof, relating to the Notes and the offering thereof in
accordance with Rule 415 under the Act. If any post-effective amendment to such
registration statement has been filed with respect thereto, prior to the
execution and delivery of this Agreement, the most recent such amendment has
been declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, and "Effective Date" means the date of the
Effective Time. Such registration statement, as amended at the Effective Time,
including all material incorporated by reference therein and including all
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430B under the Act, is referred to in this
Agreement as the "Registration Statement." The Registration Statement has been
declared effective by the Commission not more than three years prior to the date
hereof.
The Transferor proposes to file with the Commission pursuant to Rule 424(b)
under the Act ("Rule 424(b)") a supplement (the "Prospectus Supplement") to the
prospectus included in the Registration Statement (such prospectus, in the form
it appears in the Registration Statement, or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b), is hereinafter referred
to as the "Base Prospectus") relating to the Notes and the method of
distribution thereof. The Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, together with the
information referred to under the caption "Static Pool Information" in the
Prospectus Supplement regardless of whether it is deemed a part of the
Prospectus Supplement, are hereinafter referred to as the "Prospectus".
At or prior to 3 p.m. (New York City Time) on April 18, 2007 (the time the
first Contract of Sale (as defined below) was entered into as designated by the
Representatives (the "Time of Sale"), the Transferor also had prepared a
Preliminary Prospectus dated April 13, 2007 with respect to such Notes (together
with the Additional Information, the "Time of Sale Information"). "Preliminary
Prospectus" means, with respect to any date or time referred to herein, the most
recent preliminary Prospectus (as amended or supplemented, if applicable), which
has been prepared and delivered by the Transferor to the Representatives in
accordance with the provisions hereof, together with the information referred to
under the caption "Static Pool Information" therein regardless of whether it is
deemed a part of the Registration Statement or the Prospectus. "Additional
Information" means information that is included in any road show presentation
the Transferor has approved.
If, subsequent to the Time of Sale and prior to the Closing Date, the Time
of Sale Information included an untrue statement of material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and the
Transferor and the Bank have prepared and delivered to the Underwriters a
Corrected Prospectus (as defined below), and as a result investors in the Notes
elect to terminate their existing "Contracts of Sale" (within the meaning of
Rule 159 under the Act) for any Notes, then "Time of Sale Information" will
refer to the information conveyed to investors at the time of entry into the
first such new Contract of Sale in an amended
8
Preliminary Prospectus approved by the Transferor and the Representatives that
corrects such material misstatements or omissions (a "Corrected Prospectus"),
together with the Additional Information, and "Time of Sale" will refer to the
time and date on which such new Contracts of Sale were entered into.
As used herein, references to any "Free Writing Prospectus" shall mean a
"free writing prospectus" as defined in Rule 405 of the Act.
The Transferor and the Bank hereby agree, severally and not jointly, with
the underwriters for the 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:
(a) The Transferor is duly organized, validly existing and in good
standing as a limited liability company under the laws of the State of
Nebraska, and has all requisite power, authority and legal right to own its
property, transact the business in which it is now engaged and conduct its
business as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus, and to execute, deliver and perform its
obligations under this Agreement, the Transfer and Servicing Agreement, the
Pooling and Servicing Agreement, the Receivables Purchase Agreement and the
Trust Agreement and to authorize the issuance of the Notes and the
Collateral Certificate.
(b) The Bank is a national banking association duly organized, validly
existing and in good standing under the laws of the United States, and has
all requisite power, authority and legal right to own its property and
conduct its credit card business as such properties are presently owned and
such business is presently conducted, and conduct its business as described
in the Registration Statement, the Preliminary Prospectus and the
Prospectus, and to own the Accounts and to execute, deliver and perform its
obligations under this Agreement, the Receivables Purchase Agreement, the
Transfer and Servicing Agreement, the Pooling and Servicing Agreement and
the Administration Agreement.
(c) The execution, delivery and performance of each of the Transaction
Documents to which it is a party, and the incurrence of the obligations
herein and therein set forth and the consummation of the transactions
contemplated hereby and thereby, and with respect to the Transferor, the
issuance of the Notes and the Collateral Certificate, have been duly and
validly authorized by the Transferor and the Bank, as applicable, by all
necessary action on the part of the Transferor and the Bank, as applicable.
9
(d) This Agreement has been duly authorized, executed and delivered by
the Transferor and the Bank.
(e) Each of the Transaction Documents has been, or on or before the
Closing Date will be, executed and delivered by the Transferor and/or the
Bank, as applicable, and when executed and delivered by the other parties
thereto, will constitute a legal, valid and binding agreement of the
Transferor and/or the Bank, as applicable, enforceable against the
Transferor and/or the Bank, as applicable, in accordance with its terms,
except, in each case, to the extent that (i) the enforceability thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect relating to
creditors' or other obligees' rights generally or the rights of creditors
or other obligees of institutions insured by the FDIC, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought and (iii) certain remedial
provisions of the Indenture may be unenforceable in whole or in part under
the UCC, but the inclusion of such provisions does not render the other
provisions of the Indenture invalid and notwithstanding that such
provisions may be unenforceable in whole or in part, the Indenture Trustee,
on behalf of the Noteholders, will be able to enforce the remedies of a
secured party under the UCC.
(f) The Notes have been duly authorized and will be issued pursuant to
the terms of the Indenture and, when executed by the Owner Trustee on
behalf of the Issuer and authenticated by the Indenture Trustee in
accordance with the Indenture and delivered pursuant to the Indenture and
this Agreement, will be duly and validly executed, issued and outstanding
and will constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms, subject to
(A) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting creditors'
rights generally, (B) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good faith,
fair dealing (regardless of whether considered and applied in a proceeding
in equity or at law), and also to the possible unavailability of specific
performance or injunctive relief, and (C) the unenforceability under
certain circumstances of provisions indemnifying a party against liability
or requiring contribution from a party for liability where such
indemnification or contribution is contrary to public policy. The Notes
will be in the form contemplated by the Indenture, and the Notes and the
Indenture will conform to the descriptions thereof contained in the
Preliminary Prospectus, the Prospectus and the Registration Statement, as
amended or supplemented.
(g) The Collateral Certificate was issued pursuant to the terms of the
Pooling and Servicing Agreement and is validly issued and outstanding and
constitutes the legal, valid and binding obligation of the Certificate
Trust, enforceable against the Certificate Trust in accordance with its
terms, subject to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of general principles of equity
including (without limitation) concepts of materiality, reasonableness,
good faith, fair dealing (regardless of whether considered and applied in a
proceeding in equity or at law), and
10
also to the possible unavailability of specific performance or injunctive
relief, and (C) the unenforceability under certain circumstances of
provisions indemnifying a party against liability or requiring contribution
from a party for liability where such indemnification or contribution is
contrary to public policy. The Collateral Certificate is in the form
contemplated by the Pooling and Servicing Agreement, and the Collateral
Certificate and the Pooling and Servicing Agreement conform to the
descriptions thereof contained in the Preliminary Prospectus, the
Prospectus and the Registration Statement, as amended or supplemented.
(h) Neither the Transferor nor the Bank is in violation of any
Requirement of Law or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
instrument to which it is a party or by which it is bound or to which any
of its property is subject, which violation or defaults separately or in
the aggregate would have a material adverse effect on the Issuer, the
Certificate Trust, the Transferor or the Bank.
(i) None of the issuance and sale of the Notes, the issuance of the
Collateral Certificate or the execution and delivery by the Transferor or
the Bank of this Agreement or any Transaction Document to which it is a
party, nor the incurrence by the Transferor or the Bank of the obligations
herein and therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment of the terms
hereof or thereof does or will (i) violate any Requirement of Law presently
in effect, applicable to it or its properties or by which it or its
properties are or may be bound or affected, (ii) breach or violate any
provision of the organizational documents applicable to the Transferor or
the Bank, (iii) violate any judgment, order or decree of any court,
arbitrator, administrative agency or other governmental authority
applicable to the Transferor or the Bank, (iv) conflict with, or result in
a breach of, or constitute a default under, any indenture, contract,
agreement, mortgage, deed of trust or instrument to which it is a party or
by which it or its properties are bound, (v) result in the acceleration of
any obligation of the Transferor or the Bank, or (vi) result in the
creation or imposition of any Lien upon any of its property or assets,
except for those encumbrances created under the Transaction Documents.
(j) All approvals, authorizations, consents, orders and other actions
of any Person or of any court or other governmental body or official
required in connection with the execution and delivery by the Transferor or
the Bank of this Agreement or the Transaction Documents to which it is a
party or the consummation of the transactions contemplated hereunder and
thereunder, or the fulfillment of the terms hereof and thereof have been or
will have been obtained on or before the Closing Date.
(k) All actions required to be taken by the Transferor or the Bank as
a condition to the offer and sale of the Notes as described herein or the
consummation of any of the transactions described in the Preliminary
Prospectus, the Prospectus and the Registration Statement have been or,
prior to the Closing Date, will be taken.
11
(l) The Master Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies as to form with
the TIA and the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder. The Indenture Supplement is not
required to be qualified under the TIA.
(m) The representations and warranties made by the Transferor in the
Transfer and Servicing Agreement, the Pooling and Servicing Agreement, the
Trust Agreement and the Receivables Purchase Agreement or made in any
Officer's Certificate of the Transferor delivered pursuant to any
Transaction Document to which it is a party will be true and correct at the
time made and on and as of the Closing Date as if set forth herein, except
that to the extent that any such representation or warranty expressly
relates to an earlier or later date, such representation or warranty is
true and correct at and as of such earlier or later date.
(n) The representations and warranties made by the Bank in the
Receivables Purchase Agreement, and in its capacity as Servicer and
Administrator, in the Transfer and Servicing Agreement, the Pooling and
Servicing Agreement and the Administration Agreement, respectively, or made
in any Officer's Certificate of the Bank delivered pursuant to any
Transaction Document to which it is a party will be true and correct at the
time made and on and as of the Closing Date as if set forth herein, except
that to the extent that any such representation or warranty expressly
relates to an earlier or later date, such representation or warranty is
true and correct at and as of such earlier or later date.
(o) The Transferor agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the
Receivables or the Collateral Certificate, except as provided in the
Pooling and Servicing Agreement and the Transfer and Servicing Agreement,
and agrees to take all action required by the Pooling and Servicing
Agreement and the Transfer and Servicing Agreement in order to maintain the
security interest in the Receivables and the Collateral Certificate granted
pursuant to the Pooling and Servicing Agreement, the Transfer and Servicing
Agreement and the Indenture, as applicable.
(p) The Bank agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the
Receivables, except as provided in the Pooling and Servicing Agreement (and
the predecessor agreement) or the Receivables Purchase Agreement, as
applicable, and agrees to take all action required by the Pooling and
Servicing Agreement or the Receivables Purchase Agreement, as applicable,
in order to maintain the security interests in the Receivables granted
pursuant to the Receivables Purchase Agreement, the Pooling and Servicing
Agreement and the Indenture, as applicable.
(q) (i) The conditions to the use of a registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3,
and the conditions of Rule 415 under the Act, have been satisfied with
respect to the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the
Commission.
12
(ii) As of the Closing Date, the Registration Statement, the
Preliminary Prospectus and the Prospectus, except with respect to any
modification as to which the Representatives have been notified, shall
be in all substantive respects in the form furnished to the
Representatives or its counsel before such date.
(r) On the Effective Date, the Registration Statement did conform in
all material respects to the applicable requirements of the Act and the
rules and regulations of the Commission thereunder (the "Rules and
Regulations") and the TIA and the rules and regulations thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Preliminary Prospectus, as of its
date, as of the Time of Sale and on the date of this Agreement conform, and
at the time of filing of the Preliminary Prospectus pursuant to Rule
424(b), the Preliminary Prospectus will conform, in all material respects
with the requirements of the Act and the Rules and Regulations and the TIA
and the rules and regulations thereunder and it does not include, nor will
include, any untrue statement of a material fact nor omits, or will omit,
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from the Preliminary Prospectus in
reliance upon and in conformity with Underwriters' Information (as defined
below). On the date of this Agreement, the Registration Statement and the
Prospectus conform, and at the time of filing of the Prospectus pursuant to
Rule 424(b), the Registration Statement and the Prospectus will conform, in
all material respects with the requirements of the Act and the Rules and
Regulations and the TIA and the rules and regulations thereunder. Neither
of such documents, as of its date, as of the date of this Agreement and as
of the Closing Date, includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from either of such documents based upon Underwriters'
Information (as defined below). Each of the Transferor and the Bank hereby
acknowledges that the statements set forth (i) on the cover page of the
Prospectus Supplement on the line across from "Price to public," (ii) in
the table listing the Class A Underwriters and the Principal Amount of
Class A Notes under the heading "Underwriting" in the Prospectus
Supplement, (iii) in the table listing the Class B Underwriters and the
Principal Amount of Class B Notes and under the heading "Underwriting" in
the Prospectus Supplement, (iv) in the table listing the Class C
Underwriters and the Principal Amount of Class C Notes under the heading
"Underwriting" in the Prospectus Supplement, (v) in the table following the
second paragraph under the heading "Underwriting" in the Prospectus
Supplement and the Preliminary Prospectus Supplement and (vi) in the
penultimate paragraph under the heading "Underwriting" in the Prospectus
Supplement and the Preliminary Prospectus Supplement (such information, the
"Underwriters' Information") constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the Prospectus
or the Preliminary Prospectus.
(s) The Time of Sale Information at the Time of Sale did not, and at
the Closing Date will not, include any untrue statement of a material fact
or omit to state any
13
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that no representation or
warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear
only in the final Prospectus); provided, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information contained in or omitted from either
the Registration Statement or the Prospectus based upon Underwriters'
Information.
(t) Other than with respect to the Preliminary Prospectus, the
Prospectus and any Additional Information approved by the Representatives,
each of the Transferor, the Bank and the Issuer (including its agents and
representatives) has not made, used, authorized or approved and will not
make, use, authorize or approve any "written communication" (as defined in
Rule 405 under the Act) that constitutes an offer to sell or solicitation
of any offer to buy the Notes. The Transferor will file with the Commission
any Free Writing Prospectus used by the Transferor, the Bank or the Issuer
if such filing is required by Rule 433(d) of the Act. If required by Rule
433(c)(2)(i) of the Act, each Free Writing Prospectus used by the
Transferor, the Bank or the Issuer shall contain a legend substantially in
the form of and in compliance with Rule 433(c)(2)(i) of the Act, and shall
otherwise conform to any requirements for "free writing prospectuses" under
the Act.
(u) Since the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectus and the Prospectus,
except as otherwise set forth therein, there has not been any material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations, of the Bank or the Transferor.
(v) The computer tape of the Receivables to be created as of March 30,
2007, and made available to the Representatives by the Servicer, will be
complete and accurate in all material respects as of the date thereof.
(w) There are no actions, proceedings or investigations pending or, to
the best of its knowledge, threatened against or affecting the Transferor
or the Bank (or any basis therefor known to the Transferor or the Bank) (i)
asserting the invalidity of any of the Transaction Documents, (ii) seeking
to prevent the issuance of the Notes or the consummation by the Transferor
or the Bank of any of the transactions contemplated by the Transaction
Documents, or (iii) which, individually or in the aggregate, if adversely
decided, would materially and adversely affect the business, financial
condition or results of operations of the Transferor, the Issuer, the
Certificate Trust or the Bank or of the Transferor's or the Bank's ability
to consummate the transactions contemplated by the Transaction Documents.
(x) None of the Issuer, the Certificate Trust, the Transferor, the
Bank, any Affiliates thereof or any of their agents has taken any action
that would require registration of the Issuer, the Certificate Trust, the
Transferor or the Bank under the Investment Company Act of 1940, nor will
the Issuer, the Certificate Trust, the
14
Transferor, the Bank, any Affiliates thereof or any of their agents act,
nor have they authorized or will they authorize any person to act, in such
a manner.
(y) It is not necessary to qualify the Pooling and Servicing Agreement
or the Collateral Series Supplement under the TIA.
(z) The Transferor was not, on the date on which the first bona fide
offer of the Notes sold pursuant to this Agreement was made, an "ineligible
issuer" as defined in Rule 405 under the Act.
3. Purchase, Sale, Payment and Delivery of the Notes.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Transferor agrees to sell to the Class A Underwriters, and the Class A
Underwriters, severally and not jointly, agree to purchase from the
Transferor, at a purchase price of 99.775% of the principal amount thereof,
$411,250,000 aggregate principal amount of the Class A Notes, each Class A
Underwriter to purchase the amounts shown on Schedule A hereto.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Transferor agrees to sell to the Class B Underwriters, and the Class B
Underwriters, severally and not jointly, agree to purchase from the
Transferor, at a purchase price of 99.725% of the principal amount thereof,
$40,000,000 aggregate principal amount of the Class B Notes, each Class B
Underwriter to purchase the amounts shown on Schedule A hereto.
(c) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Transferor agrees to sell to the Class C Underwriters, and the Class C
Underwriters, severally and not jointly, agree to purchase from the
Transferor, at a purchase price of 99.700% of the principal amount thereof,
$48,750,000 aggregate principal amount of the Class C Notes, each Class C
Underwriter to purchase the amounts shown on Schedule A hereto.
(d) The Transferor will cause the Issuer to deliver the Notes to the
Underwriters against payment of the purchase price in immediately available
funds, drawn to the order of the Transferor, at the office of Kutak Rock
LLP, in Omaha, Nebraska at 10:00 a.m., Chicago time, on April 24, 2007 such
time being herein referred to as the "Closing Date." Each of the Class A
Notes, the Class B Notes and the Class C Notes so to be delivered shall be
represented by one or more definitive notes registered in the name of Cede
& Co., as nominee for The Depository Trust Company. The Notes will be
available for inspection, checking and packaging by the Underwriters at the
office at which the Notes are to be delivered in Omaha, Nebraska no later
than 4:00 p.m., Chicago time, on the business day prior to the Closing
Date.
4. Offering by Underwriters.
15
(a) It is understood that after the Effective Date, each Underwriter
proposes to offer the Notes for sale to the public (which may include
selected dealers) as set forth in the Prospectus.
(b) Each Underwriter shall comply with all applicable laws and
regulations in connection with its use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the Act.
(c) Other than the Preliminary Prospectus, Prospectus, the Additional
Information and other information approved by the Transferor, each
Underwriter represents, warrants and agrees with the Transferor and the
Bank that it has not made, used, prepared, authorized, approved or referred
to and will not make, use, prepare, authorize, approve or refer to any
"written communication" (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the Notes,
including, but not limited to, any "ABS informational and computational
materials" as defined in Item 1101(a) of Regulation AB under the Act.
Notwithstanding the foregoing, the Transferor agrees that the Underwriters
may disseminate information on Bloomberg to prospective investors relating
solely to (i) information of the type identified in Rule 134 of the Act,
(ii) information included in the Preliminary Prospectus, (iii) the status
of allocations and subscriptions of the Notes, expected pricing parameters
of the Notes and the yields and weighted average lives of the Notes, and
(iv) information constituting final terms of the Notes within the meaning
of Rule 433(d)(5)(ii) under the Act (each such communication, an
"Underwriter Free Writing Prospectus"); provided that in the case of the
foregoing clauses (i) through (iv), other than the final pricing terms,
such Underwriter Free Writing Prospectus would not be required to be filed
with the Commission.
(d) Each Underwriter severally represents, warrants and agrees with
the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will
not, as of the date such Underwriter Free Writing Prospectus was
conveyed or delivered to any prospective purchaser of the Notes,
include any untrue statement of a material fact or omit any material
fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that no Underwriter makes such representation,
warranty or agreement to the extent such misstatements or omissions
were the result of any inaccurate information which was included in
the Preliminary Prospectus, the Prospectus or any written information
furnished to the related Underwriter by the Transferor, the Issuer or
the Bank expressly for use therein, which information was not
corrected by information subsequently provided by the Transferor, the
Issuer or the Bank to the related Underwriter within a reasonable
period of time prior to the time of use of such Underwriter Free
Writing Prospectus;
(ii) if required by Rule 433(c)(2)(i) of the Act, each
Underwriter Free Writing Prospectus prepared by it shall contain a
legend substantially in the form
16
of and in compliance with Rule 433(c)(2)(i) of the Act, and shall
otherwise conform to any requirements for "free writing prospectuses"
under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it
shall be delivered to the Transferor no later than the date of first
use and, unless otherwise agreed to by the Transferor and the related
Underwriter, such delivery shall occur no later than the close of
business for the Bank (Central Time) on the date of first use;
provided, however, if the date of first use is not a Business Day,
such delivery shall occur no later than the close of business for the
Bank (Central Time) on the first Business Day after such date of first
use.
(e) Each Underwriter represents and agrees (i) that it did not enter
into any Contract of Sale for any Notes prior to the Time of Sale and (ii)
that it will, at any time that such Underwriter is acting as an
"underwriter" (as defined in Section 2(a)(11) of the Act) with respect to
the Notes, deliver to each investor to whom Notes are sold by it during the
period prior to the filing of the final Prospectus (as notified to such
Underwriter by the Transferor or by the Bank), prior to the applicable time
of any such Contract of Sale with respect to such investor, the Preliminary
Prospectus.
(f) In the event the Bank, the Transferor or any Underwriter becomes
aware that, as of the Time of Sale, any Time of Sale Information contains
or contained any untrue statement of material fact or omits or omitted to
state any material fact necessary in order to make the statements contained
therein in light of the circumstances under which they were made, not
misleading ("Defective Information"), such Underwriter, the Bank or the
Transferor, as applicable, shall promptly notify the Representatives and,
in the case of any Underwriter giving such notice, the Transferor, of such
untrue statement or omission no later than one Business Day after discovery
and the Transferor shall prepare and deliver to the Underwriters a
Corrected Prospectus. Each Underwriter shall deliver such Corrected
Prospectus to any person with whom a Contract of Sale was entered into
based on such Defective Information, and such Underwriter shall provide any
such person with adequate disclosure of the person's rights under the
existing Contract of Sale and a meaningful ability to elect to terminate or
not terminate the prior Contract of Sale and to elect to enter into or not
enter into a new Contract of Sale based on the information set forth in the
Corrected Prospectus.
5. Certain Agreements of the Transferor. The Transferor agrees with the
Underwriters that:
(a) Immediately following the execution of this Agreement, the
Transferor will transmit the Prospectus to the Commission pursuant to Rule
424(b) by a means reasonably calculated to result in filing with the
Commission pursuant to Rule 424(b). The Transferor will not file any
amendment of the Registration Statement with respect to the Notes or
supplement to the Prospectus unless a copy has been furnished to the
Representatives for their review a reasonable time prior to the proposed
filing thereof or to which the Representatives shall reasonably object in
writing. The Transferor will advise the Representatives promptly of (i) the
effectiveness of any amendment or supplementation of the Registration
Statement or Prospectus, (ii) any request by the
17
Commission for any amendment or supplementation of the Registration
Statement or the Prospectus or for any additional information, (iii) the
receipt by the Transferor of any notification with respect to the
suspension of qualification of the Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purposes and (iv)
the institution by the Commission of any stop order proceeding in respect
of the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is required
to be delivered under the Act, any event occurs as a result of which the
Preliminary Prospectus or the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Preliminary Prospectus or the Prospectus
to comply with the Act, the Transferor promptly will notify the
Representatives of such event and prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Underwriters'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 7.
(c) As soon as practicable, the Transferor will cause the Issuer to
make generally available to the Noteholders an earnings statement or
statements of the Issuer covering a period of at least 12 months beginning
after the Effective Date which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 of the Commission promulgated thereunder.
(d) The Transferor will furnish to the Representatives and their
counsel, without charge, copies of the Registration Statement (one of which
will be signed and will include all exhibits), the Preliminary Prospectus
and the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representatives reasonably request. The Transferor will pay the expenses of
printing or other production of all documents relating to the offering of
the Notes.
(e) The Transferor will endeavor to qualify the Notes for sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and the determination of the
eligibility for investment of the Notes under the laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect so long as required for the distribution of the
Notes; provided, however, that the Transferor shall not be obligated to
qualify to do business in any jurisdiction where such qualification would
subject the Transferor to general or unlimited service of process in any
jurisdiction where it is not now so subject. The Transferor will promptly
advise the Underwriters of the receipt by the Transferor of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat of any
proceeding for such purpose.
18
(f) The Transferor will, and will cause the Certificate Trust and
Issuer to, assist the Representatives in making arrangements with DTC,
Euroclear and Clearstream, concerning the issue of the Notes, arranging
with such clearing agency to permit the Notes to be eligible for clearance
and settlement through such clearing agency and related matters.
(g) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representatives copies of each
certificate and the annual statements of compliance delivered to (a) the
Certificate Trustee and each Rating Agency pursuant to Sections 3.04(b) and
3.05 of the Pooling and Servicing Agreement and independent certified
public accountant's servicing reports furnished to the Certificate Trustee
and each Rating Agency pursuant to Sections 3.06(a) and (b) of the Pooling
and Servicing Agreement, (b) the Owner Trustee, the Indenture Trustee and
each Rating Agency pursuant to Section 3.05 of the Transfer and Servicing
Agreement and independent certified public accountant's servicing reports
furnished to the Indenture Trustee and the Rating Agencies pursuant to
Sections 3.06(a) and (b) of the Transfer and Servicing Agreement, and (c)
the Series 2007-1 Noteholders pursuant to Sections 5.03(a) and (d) of the
Indenture Supplement, by first class mail promptly after such certificates,
statements and reports are furnished to the Certificate Trustee, the Owner
Trustee, the Indenture Trustee, the Series 2007-1 Noteholders or the Rating
Agencies, as the case may be.
(h) So long as any Note is outstanding, the Transferor will furnish,
or cause the Servicer to furnish, to the Representatives, by first-class
mail as soon as practicable (i) all documents concerning the Receivables,
the Collateral Certificate or the Notes distributed by the Transferor or
the Servicer (under each of the Pooling and Servicing Agreement and
Transfer and Servicing Agreement) to the Certificate Trustee, the Owner
Trustee, the Indenture Trustee or the Noteholders, or filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (ii) any order of the Commission under the Act or the
Exchange Act applicable to the Issuer, to the Certificate Trust, or to the
Transferor, or pursuant to a "no-action" letter obtained from the staff of
the Commission by the Transferor and affecting the Issuer, the Certificate
Trust, or the Transferor and (iii) from time to time, such other
information concerning the Issuer or the Certificate Trust as the
Representatives may reasonably request.
(i) To the extent, if any, that any of the ratings provided with
respect to the Notes by any Rating Agency are conditional upon the
furnishing of documents or the taking of any other actions by the
Transferor, the Transferor shall furnish such documents and take any such
other actions as are necessary to satisfy such condition.
(j) In connection with any disposition of the Definitive Notes
pursuant to a transaction made in compliance with all applicable transfer
restrictions contemplated herein and in the Indenture, the Transferor will
cause the Issuer to reissue notes evidencing such Definitive Notes as
required pursuant to the Indenture.
(k) Until 30 days following the Closing Date, none of the Transferor
or any trust or other entity originated, directly or indirectly, by the
Transferor (including,
19
without limitation, the Certificate Trust or the Issuer) will, without the
prior written consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any asset-backed securities (other than the Notes).
(l) After the Certificate Trust Termination Date, the Transferor shall
cause its computer records relating to the Receivables to be marked in
accordance with Section 2.01(c) of the Transfer and Servicing Agreement to
show the Issuer's absolute ownership of the Receivables, and from and after
the Certificate Trust Termination Date the Transferor shall not take any
action inconsistent with the Issuer's ownership of the Receivables, other
than as permitted by the Transfer and Servicing Agreement.
(m) The Transferor will enter into or has entered into the Pooling and
Servicing Agreement, the Transfer and Servicing Agreement and other
instruments to which this Agreement and the Pooling and Servicing Agreement
and the Transfer and Servicing Agreement contemplate it will be a party on
or prior to the Closing Date. The Transferor will cause the Certificate
Trust and the Issuer to enter into any instruments to which this Agreement
or any Transaction Document contemplates that either will be a party on or
prior to the Closing Date.
6. Certain Agreements of the Bank.
(a) Until 30 days following the Closing Date, none of the Bank or any
trust or other entity originated, directly or indirectly, by the Bank
(including, without limitation, the Transferor) will, without the prior
written consent of the Representatives, which shall not be unreasonably
withheld, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any asset-backed
securities (other than the Notes).
(b) The Bank has entered into the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Transfer and Servicing Agreement and
will have entered into other instruments to which this Agreement and the
Receivables Purchase Agreement, the Pooling and Servicing Agreement, and
the Transfer and Servicing Agreement contemplate it will be a party on or
prior to the Closing Date.
7. Conditions of the Obligations of the Underwriters. The obligation of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy
of the representations and warranties by the Transferor and the Bank herein, to
the accuracy of the statements of officers of the Transferor and the Bank made
pursuant to the provisions hereof, to the performance by the Transferor and the
Bank of their respective obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to each of the date of this Agreement and the Closing
Date, the Representatives shall have received an agreed upon procedures
letter or letters of Deloitte & Touche LLP, dated on or prior to the date
of the Preliminary Prospectus Supplement and the Prospectus Supplement, as
applicable, confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
20
Regulations thereunder, which letter shall be substantially in the form
heretofore agreed to and otherwise in form and in substance satisfactory to
the Representatives and their counsel.
(b) Each of the Preliminary Prospectus and the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations
and Section 5(a) of this Agreement; and, prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Transferor or the Representatives, shall be
contemplated by the Commission.
(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
21
each jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, and has full
power and authority to own its properties, to conduct its business as
described in the Registration Statement, the Preliminary Prospectus
and the Prospectus, to enter into and perform its obligations under
the Transaction Documents to which it is a party, and to consummate
the transactions contemplated thereby.
(ii) Each of the Transaction Documents and this Agreement has
been duly authorized, executed and delivered by each FNBO Entity that
is a party thereto.
(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
22
possible unavailability of specific performance or injunctive relief,
(C) the unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring contribution from
a party for liability where such indemnification or contribution is
contrary to public policy and (D) certain remedial provisions of the
Indenture may be unenforceable in whole or in part under the UCC, but
the inclusion of such provisions does not render the other provisions
of the Indenture invalid and notwithstanding that such provisions may
be unenforceable in whole or in part, the Indenture Trustee, on behalf
of the Noteholders, will be able to enforce the remedies of a secured
party under the UCC.
(vi) This Agreement constitutes the legal, valid and binding
obligation of the Transferor and the Bank under the laws of the State
of New York, enforceable against the Transferor and the Bank in
accordance with its terms, subject to (A) the effect of bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation and
other similar laws affecting creditors' rights generally and the
rights of creditors of national banking associations (including,
without limitation, the determination pursuant to 12 U.S.C. Section
1821(e) of any liability for the disaffirmance or repudiation of any
contract), (B) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good
faith, fair dealing (regardless of whether considered and applied in a
proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, and (C)
the unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring contribution from
a party for liability where such indemnification or contribution is
contrary to public policy.
(vii) The Notes are in due and proper form and when executed,
authenticated and delivered as specified in the Indenture, and when
delivered against payment of the consideration specified in this
Agreement, they will be validly issued and outstanding, will
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms and will
be entitled to the benefits of the Indenture, subject to (A) the
effect of bankruptcy, 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.
23
(viii) The Collateral Certificate is in due and proper form,
validly issued and outstanding and constitutes the legal, valid and
binding obligation of the Certificate Trust, enforceable against the
Certificate Trust in accordance with its terms and is entitled to the
benefits of the Pooling and Servicing Agreement, subject to (A) the
effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws affecting
creditors' rights generally, (B) the effect of general principles of
equity including (without limitation) concepts of materiality,
reasonableness, good faith, fair dealing (regardless of whether
considered and applied in a proceeding in equity or at law), and also
to the possible unavailability of specific performance or injunctive
relief, and (C) the unenforceability under certain circumstances of
provisions indemnifying a party against liability or requiring
contribution from a party for liability where such indemnification or
contribution is contrary to public policy.
(ix) The Registration Statement has become effective under the
Act, and the Preliminary Prospectus and the Prospectus have been filed
with the Commission pursuant to Rule 424(b) thereunder in the manner
and within the time period required by Rule 424(b). To the best of
such firm's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened or
contemplated by the Commission.
(x) The statements in the Base Prospectus under the headings
"Risk Factors--If a conservator or receiver were appointed for First
National Bank of Omaha, or if we become a debtor in a bankruptcy case,
delays or reductions in payment of your notes could occur," "Material
Legal Aspects of the Receivables," "ERISA Considerations" and "Federal
Income Tax Consequences" and the statements in the Preliminary
Prospectus Supplement and the Prospectus Supplement under the headings
"Structural Summary--Tax Status" and "--ERISA Considerations" to the
extent that they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by us and are correct in all
material respects.
(xi) The Transaction Documents, the Collateral Certificate and
the Notes conform in all material respects to the descriptions thereof
contained in the Preliminary Prospectus and the Prospectus.
(xii) The Master Indenture has been duly qualified under the TIA
and complies as to form with the TIA and the rules and regulations of
the Commission thereunder. The Indenture Supplement is not required to
be qualified under the TIA. The Issuer is not now, and immediately
following the issuance of the Notes pursuant to the Indenture will not
be, required to be registered under the Investment Company Act of
1940, as amended.
(xiii) The Pooling and Servicing Agreement need not be qualified
under the TIA. The Certificate Trust is not now, and immediately
following the
24
issuance of the Notes pursuant to the Indenture, will not be required
to be registered under the Investment Company Act of 1940, as amended.
(xiv) For federal income tax purposes: (i) the Notes will be
characterized as debt; (ii) neither the Certificate Trust nor the Note
Trust will be classified as an association or publicly traded
partnership taxable as a corporation for federal income tax purposes;
(iii) the issuance of the Notes will not adversely affect the tax
characterization as debt of any outstanding series of notes issued by
the Note Trust with respect to which an opinion of counsel was
delivered at their time of issuance that such notes would be
characterized as debt and will not adversely affect the federal income
tax characterization of any outstanding series of investor
certificates issued by the Certificate Trust; and (iv) the issuance of
the Notes will not otherwise constitute an event in which a gain or
loss would be recognized by any holders of any outstanding series of
notes issued by the Note Trust or any outstanding series of investor
certificates issued by the Certificate Trust.
(xv) Each of the Indenture and the Administration Agreement
constitutes the legal, valid and binding obligation of the Issuer
under the laws of the State of Nebraska, subject to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws affecting creditors' rights
generally, (B) the effect of general principles of equity including
(without limitation) concepts of materiality, reasonableness, good
faith, fair dealing (regardless of whether considered and applied in a
proceeding in equity or at law), and also to the possible
unavailability of specific performance or injunctive relief, (C) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability or requiring contribution from
a party for liability where such indemnification or contribution is
contrary to public policy and (D) certain remedial provisions of the
Indenture may be unenforceable in whole or in part under the UCC, but
the inclusion of such provisions does not render the other provisions
of the Indenture invalid and notwithstanding that such provisions may
be unenforceable in whole or in part, the Indenture Trustee, on behalf
of the Noteholders, will be able to enforce the remedies of a secured
party under the UCC.
(xvi) Each of the Registration Statement, as of its effective
date, the Preliminary Prospectus and the Prospectus, each as of its
date, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations under the Act,
except that in each case such counsel need not express any opinion as
to the financial and statistical data included therein or excluded
therefrom or the exhibits to the Registration Statement and, except as
and, to the extent set forth in paragraphs (x) and (xi), such counsel
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement,
the Preliminary Prospectus or the Prospectus.
25
(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, (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,
and (c) neither the FDIC (acting for itself as a creditor or as a
representative of the Bank or its shareholders or creditors) nor any
creditor of the Bank would have the right, under any bankruptcy or
insolvency law applicable in the conservatorship or receivership of
the Bank, other than Section 11(c) of the Federal Deposit Insurance
Act, as amended, 12 U.S.C. Section 1811 et seq. (the "FDIA"), to avoid
transfers of Receivables by the Bank to the Transferor, to recover the
Receivables, or to require the Receivables to be turned over to the
FDIC or such creditor and (d) there is no power, other than powers
referred to in the Rule, that is exercisable by the FDIC as
conservator or receiver for the Bank that would permit the FDIC as
such conservator or receiver to reclaim or recover the Receivables
from the Transferor or the Certificate Trust or to recharacterize the
Receivables transferred by the Bank to the Transferor as property of
the Bank or of the conservatorship or receivership for the Bank.
(xviii) Certain matters regarding and related to the limited
liability company agreement of the Transferor.
(xix) Certain matters relating to the characterization of the
Receivables under the UCC and to the transfer of the Receivables from
the Transferor to the Certificate Trust under the Pooling and
Servicing Agreement.
(xx) Certain matters relating to the characterization of the
Collateral Certificate under the UCC and to the transfer of the
Collateral Certificate from the Transferor to the Issuer under the
Transfer and Servicing Agreement.
(xxi) Certain matters with respect to the attachment and
perfection of the ownership interests and security interests granted
under the Transaction Documents in the Receivables, the Collateral
Certificate and the proceeds thereof, including that such assets are
not subject to other Liens of record.
Such counsel also shall state that they have participated in
conferences with representatives of the Transferor and the Bank and their
accountants, the Underwriters and counsel to the Underwriters concerning
the Registration Statement, the Preliminary Prospectus and the Prospectus
and have considered the matters to be stated therein and the matters stated
therein, although they are not independently verifying the accuracy,
completeness or fairness of such statements (except as stated in paragraphs
(x) and (xi) above) and based upon and subject to the foregoing, nothing
has come to such counsel's
26
attention to cause such counsel to believe that the Registration Statement
(excluding any exhibits filed therewith), at the time it became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Preliminary Prospectus, as
of its date, as of the Time of Sale and as of the Closing Date, or the
Prospectus, as of the date hereof and as of the Closing Date, contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel has not been requested
to, and does not, make any comment in such opinion with respect to the
financial statements, supporting Schedules and other financial or
statistical information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus).
In rendering such opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, State of Nebraska and the United States, to the extent deemed
proper and stated in such opinion, upon the opinion of other counsel of
good standing believed by such counsel to be reliable and acceptable to the
Representative and its counsel, and (B) as to matters of fact, on
certificates of responsible officers of the Issuer, the Bank, the
Transferor and public officials.
(e) The Representatives shall have received from Mayer, Brown, Rowe &
Maw LLP, special counsel for the Underwriters, a negative assurance letter,
dated the Closing Date, with respect to such matters relating to this
transaction as the Representatives may require, and the Transferor shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate from each of
the Transferor and the Bank, dated the Closing Date, of a Treasurer, Vice
President or more senior officer of the Transferor or the Bank, as the case
may be, in which such officer, to the best of his/her knowledge after
reasonable investigation, shall state that (u) the representations and
warranties of the Transferor and the Bank, as the case may be, in this
Agreement are true and correct on and as of the Closing Date, (v) the
Transferor or the Bank, as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (w) the
representations and warranties of the Transferor or the Bank, as the case
may be, contained in this Agreement and the Transaction Documents to which
it is a party are true and correct as of the dates specified herein and
therein, (x) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, (y) nothing has come to
such officers' attention that would lead such officers to believe that the
Registration Statement, the Preliminary Prospectus or the Prospectus, and
any amendment or supplement thereto, as of its date and as of the Closing
Date, contained an untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
(z) subsequent to the date of the Preliminary Prospectus, there
27
has been no material adverse change in the financial position or results of
operation of the Bank's credit card business except as set forth in or
contemplated by the Preliminary Prospectus and the Prospectus or as
described in such certificate.
(g) The Representative shall have received an opinion of Richards,
Layton & Finger, P.A., counsel to the Owner Trustee, dated the Closing
Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly existing
as a banking corporation in good standing under the laws of the State
of Delaware.
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement.
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms.
(iv) Neither the execution, delivery or performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the
transactions by the Owner Trustee contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the
United States of America governing the trust powers of the Owner
Trustee (other than the filing of the certificate of trust with the
Delaware Secretary of State).
(v) Neither the execution, delivery and performance, by the Owner
Trustee, of the Trust Agreement, nor the consummation of the
transactions by the Owner Trustee contemplated thereby, is in
violation of the charter or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Delaware or of the
United States of America governing trust powers of the Owner Trustee
or, to such counsel's knowledge, without independent investigation,
any indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument
to which it is a party or by which it is bound or, to such counsel's
knowledge, without independent investigation, of any judgment or order
applicable to the Owner Trustee.
(vi) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
governmental authority which, if adversely determined, would
materially and adversely affect the ability of the Owner Trustee to
carry out the transactions contemplated by the Trust Agreement.
(h) The Representative shall have received an opinion of Richards,
Layton & Finger, P.A., special Delaware counsel to the Issuer, dated the
Closing Date, satisfactory in form and substance to the Representative and
its counsel, to the effect that:
28
(i) The Issuer has been duly formed and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust
Act, 12 Del. C. 3801 et seq. (referred to in this subsection (h) as
the "Trust Act").
(ii) The Trust Agreement is a legal, valid and binding obligation
of the Transferor and the Owner Trustee, enforceable against the
Transferor and the Owner Trustee, in accordance with its terms.
(iii) Under the Trust Act and the Trust Agreement, the execution
and delivery of the Transfer and Servicing Agreement and the
Indenture, the issuance of the Notes, and the granting of the
Collateral to the Indenture Trustee as security for the Notes has been
duly authorized by all necessary trust action on the part of the
Issuer.
(iv) Under the Trust Act and the Trust Agreement, the Issuer has
(i) the power and authority to execute, deliver and perform its
obligations under the Administrative Agreement, the Indenture and the
Transfer and Servicing Agreement (collectively referred to in this
subsection (h) as the "Trust Documents") and the Notes, and (ii) duly
authorized, executed and delivered such agreements and obligations.
(v) Neither the execution, delivery and performance by the Issuer
of the Trust Documents or the Notes, nor the consummation by the
Issuer of any of the transactions by the Issuer contemplated 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.
29
(ix) The Owner Trustee is not required to hold legal title to the
Trust Estate in order for the Issuer to qualify as a statutory trust
under the Act.
(i) The Representative shall have received an opinion of Chapman and
Cutler LLP, counsel to the Indenture Trustee dated the Closing Date,
satisfactory in form and substance to the Representatives and their
counsel, to the effect that:
(i) The Indenture Trustee is organized and validly existing as a
national banking association in good standing under the laws of the
United States of America and is authorized and qualified to accept the
trusts imposed by the Indenture and to act as Indenture Trustee under
the Indenture.
(ii) The acknowledgment by the Indenture Trustee of the Transfer
and Servicing Agreement has been duly authorized, executed and
delivered by the Indenture Trustee. The Indenture Trustee has duly
authorized, executed and delivered the Indenture. Assuming the due
authorization, execution and delivery thereof by the other parties
thereto, the Indenture is the legal, valid and binding obligation of
the Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its terms, subject to bankruptcy and insolvency laws
and general principles of equity.
(iii) The Indenture Trustee has duly executed and authenticated
the Notes.
(iv) The Indenture Trustee is duly authorized and empowered to
exercise trust powers under applicable law and to perform under the
Transaction Documents to which it is a party, or which it has
acknowledged.
(v) None of (x) the execution and authentication of the Notes,
(y) the acknowledgement of the Transfer and Servicing Agreement or (z)
the execution, delivery and performance of the Indenture by the
Indenture Trustee conflicts with or will result in a violation of (A)
any law or regulation of the United States of America governing the
banking or trust powers of the Indenture Trustee or (B) the
organizational documents of the Indenture Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
having jurisdiction over the banking or trust powers of the Indenture
Trustee is required in connection with the execution and delivery by
the Indenture Trustee of the Indenture or the performance by the
Indenture Trustee of the terms of the Indenture or the acknowledgement
of the Transfer and Servicing Agreement.
(j) The Representatives shall have received an opinion of Chapman and
Cutler LLP, counsel to the Certificate Trust Trustee dated the Closing
Date, satisfactory in form and substance to the Representatives and their
counsel, to the effect that:
(i) The Certificate Trustee is organized and validly existing as
a national banking association in good standing under the laws of the
United States
30
of America and is authorized and qualified to accept the trusts
imposed by the Pooling and Servicing Agreement and to act as
Certificate Trust Trustee under the Pooling and Servicing Agreement.
(ii) The Certificate Trust Trustee has duly authorized, executed
and delivered the Pooling and Servicing Agreement. Assuming the due
authorization, execution and delivery thereof by the other parties
thereto, the Pooling and Servicing Agreement is the legal, valid and
binding obligation of the Certificate Trust Trustee, enforceable
against the Certificate Trust Trustee in accordance with its terms,
subject to bankruptcy and insolvency laws and general principles of
equity.
(iii) The Certificate Trust Trustee has duly executed,
authenticated and delivered the Collateral Certificate.
(iv) The Certificate Trust Trustee is duly authorized and
empowered to exercise trust powers under applicable law and to perform
under the Transaction Documents to which it is a party or which it has
acknowledged.
(v) None of (y) the execution and authentication of the
Collateral Certificate, and (z) the execution, delivery and
performance of the Pooling and Servicing Agreement by the Certificate
Trust Trustee conflicts with or will result in a violation of (A) any
law or regulation of the United States of America governing the
banking or trust powers of the Certificate Trust Trustee or (B) the
organizational documents of the Certificate Trust Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
having jurisdiction over the banking or trust powers of the
Certificate Trust Trustee is required in connection with the execution
and delivery by the Certificate Trust Trustee of the Pooling and
Servicing Agreement or the performance by the Certificate Trust
Trustee of the terms of the Pooling and Servicing Agreement.
(k) The Representatives shall have received reliance letters addressed
to the Representatives, dated as of the Closing Date, allowing the
Representatives to rely on each opinion of counsel delivered to a Rating
Agency, the Indenture Trustee, the Certificate Trustee, the Transferor or
the Bank in connection with the issuance of the Notes and not addressed to
the Representatives.
(l) The Representatives shall have received evidence satisfactory to
the Representatives that the 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.
31
(m) After the date hereof, there shall not have been any change or any
development involving a prospective change in or affecting the business or
properties of the Bank or the Transferor the effect of which is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to market the Notes as contemplated by the
Preliminary Prospectus and the Prospectus.
(n) The Representatives shall have received opinions, dated as of the
Closing Date, of Kutak Rock LLP, special counsel to the Transferor and the
Bank in Nebraska, Illinois and New York, and Davenport, Evans, Hurwitz &
Smith, L.L.P., special counsel to the Transferor and the Bank in South
Dakota, with respect to such state tax matters as the Representatives shall
reasonably request in a manner consistent with prior public note issuances
by the Issuer.
(o) The Transferor will furnish the Representatives with such
conformed copies of the above and such other opinions, certificates,
information, letters and documents as the Representatives or their counsel
reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Representatives, this
Agreement and all obligations of the Representatives hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Certificate Trust in writing or by
telephone or telegraph confirmed in writing.
8. Reimbursement of Expenses. The Transferor agrees to pay all costs and
expenses in connection with the transaction herein contemplated (whether or not
consummated), including, without limiting the generality of the foregoing: all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, (ii) incident to the qualification of
the Notes for investment under the laws of such jurisdictions as either
Representative designates, (iii) for any filing fee of the National Association
of Securities Dealers, Inc. relating to the Notes, (iv) incident to the
preparation, printing (including word processing and duplication costs) and
delivery of the Preliminary Prospectus and the Prospectus, including any
Corrected Prospectus, and, including in each case all exhibits, amendments,
attachments and supplements thereto, (v) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Preliminary Prospectus, the Prospectus (including any Corrected
Prospectus), the Transaction Documents and the furnishing to the Representatives
of copies of the Preliminary Prospectus and the Prospectus (including any
Corrected Prospectus) as herein provided, (vi) constituting the fees and
disbursements of the Representatives' counsel and the Bank's and the
Transferor's counsel and accountants, (vii) payable to each Rating Agency in
connection with the ratings of the Notes and (viii) in connection with the
structuring and marketing of the Notes (and any other miscellaneous expenses in
connection therewith); provided that the Representatives shall not be obligated
to pay any expenses of a defaulting Representative.
32
9. Indemnification and Contribution.
(a) The Transferor and the Bank, jointly and severally, will indemnify
and hold harmless each Underwriter, the respective directors, officers,
employees and agents of each Underwriter and each Person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the 1934 Act (the "Indemnified Parties") from and against any losses,
claims, damages or liabilities, joint or several, to which the Underwriters
or any of them may become subject, under the Act, the 1934 Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in (i) the
Registration Statement, (ii) the Preliminary Prospectus, (iii) the
Prospectus or (iv) any Additional Information, or other information
provided by the Transferor or the Bank to any holder or prospective
purchaser of the Notes, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse each such Indemnified Party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that Transferor and the Bank will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the Underwriters'
Information; provided further, that such indemnity with respect to any
Corrected Statement (as defined below) in such Prospectus shall not inure
to the benefit of any Underwriter (or related Indemnified Party) from whom
the person asserting any loss, claim, damage or liability purchased the
Notes that are the subject thereof if (i) the untrue statement or omission
of a material fact contained in a Prospectus was corrected (a "Corrected
Statement") in a Corrected Prospectus, (ii) the Transferor gave such
Underwriter prompt written notice of the need for a Corrected Prospectus,
and (iii) the Transferor furnished sufficient copies of such Corrected
Prospectus to such Underwriter sufficiently prior to the delivery of the
confirmation of the sale of such Notes so as to allow a reasonable time for
such Underwriter to deliver such Corrected Prospectus to such investor, but
such Underwriter did not furnish such Corrected Prospectus to such investor
prior to the delivery of such confirmation. This indemnity agreement will
be in addition to any liability which the Transferor or the Bank may
otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Transferor, its directors and officers and each
Person who controls the Transferor within the meaning of Section 15 of the
Act or Section 20 of the 1934 Act, against any losses, claims, damages or
liabilities to which the Transferor may become subject, under the Act, the
1934 Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus or the Preliminary Prospectus, or
arise out of or are based upon the omission
33
or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with the Underwriters' Information;
and will reimburse any actual legal or other expenses reasonably incurred
by the Transferor and the Bank in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that in no case shall any
Underwriter be responsible for any amount in excess of the Underwriter's
discounts or commission applicable to the Notes to be sold by such
Underwriter hereunder.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action or the assertion by a third
party of a claim, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under subsection (a)
or (b) above, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not (i)
relieve it from any liability which it may have to any indemnified party
except and to the extent of any material prejudice to such indemnifying
party arising from such failure to provide such notice and (ii) in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), provided, however, that if (x) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest which, if such counsel had
been retained, would have required such counsel to withdraw from such
representation, (y) the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it that
are different from or additional to those available to the indemnifying
party or to other indemnified parties, or (z) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after receipt by
the indemnifying party of notice of the institution of such action or
proceeding, then, in each such case, (1) the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties, (2) such indemnified party or parties shall
have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties (provided that, if more than one
indemnified party is subject to the circumstances described in clause (y),
then, to the extent permitted by the rules of professional conduct
applicable to attorneys, all such indemnified parties shall be represented
by one such separate counsel) and (3) all costs and expenses of each such
indemnified party in connection with such action or proceeding shall be
paid by the indemnifying party pursuant to subsection (a) or (b) above, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party
will not be liable to such
34
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation unless, (i)
the indemnified party shall have employed separate counsel in accordance
with this sentence or (ii) the indemnifying party has authorized in writing
the employment of counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action and does not include a statement as to, or an
admission of, fault, culpability or failure to act by or on behalf of such
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Transferor and the Bank on the one hand and the
Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Transferor and the Bank on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant
equitable considerations; provided, however, that in no event shall any
Underwriter be responsible in the aggregate for any amount in excess of the
Underwriter's discount or commission applicable to the Notes to be sold by
such Underwriter hereunder. The relative benefits received by the
Transferor and the Bank on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) of the Notes received by the
Transferor bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Transferor or the Bank or the Underwriters. The Transferor, the Bank and
the Representatives agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take into account the equitable considerations
referred to above. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
35
(e) The obligations of the Transferor and the Bank under this Section
shall be in addition to any liability which the Transferor or the Bank may
otherwise have and shall extend, upon the same terms and conditions, to
each Person, if any, who controls any Underwriter within the meaning of the
Act or the 1934 Act and each director, officer, employee, and agent of an
Underwriter and each such Person shall have the same rights to contribution
as the Underwriter; and the obligations of any Underwriter under this
Section shall be in addition to any liability that such Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Transferor or the Bank, to each officer of the
Transferor or the Bank who has signed the Registration Statement and to
each Person, if any, who controls the Transferor or the Bank within the
meaning of the Act or the 1934 Act and each director, officer, employee,
and agent of Transferor or Bank and each such Person shall have the same
rights to contribution as the Transferor or Bank, as applicable.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor and the Bank or their officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of the Underwriters, the Transferor, the Bank or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated or if for any reason other than default by the Underwriters the
purchase of the Notes by the Underwriters is not consummated, the Transferor and
the Bank shall remain responsible for the expenses to be paid by them pursuant
to Section 8 and the respective obligations of the Transferor, the Bank and the
Underwriters pursuant to Section 9 shall remain in effect.
11. Obligations of the Underwriters.
(a) Each Underwriter (severally and not jointly) represents and agrees
that it has not and will not, directly or indirectly, offer, sell or
deliver any of the Notes or distribute the Prospectus or any other offering
materials relating to the Notes in or from any jurisdiction except under
circumstances that will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations thereof.
(b) Each Underwriter further represents, warrants and agrees that (i)
it has communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the Financial Services and Markets 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 (ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to
the Notes in, from or otherwise involving the United Kingdom.
12. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Notes, and if such
nondefaulting
36
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:
J.P. Morgan Securities Inc.
ABS & MBS Originations
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: R. Eric Wiedelman
Banc of America Securities LLC
Hearst Tower
214 North Tryon Street, 21st Floor
Charlotte, NC 28255
Attention: Jim Mackey
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND 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.
17. Absence of Fiduciary Relationship. The Transferor and the Bank
acknowledge and agree that:
37
(a) the Underwriters have been retained solely to act as underwriters
in connection with the sale of the Notes and that no fiduciary, advisory or
agency relationship between the Transferor, the Bank and the Underwriters
has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Underwriters have advised or are
advising the Transferor or the Bank on other matters;
(b) the price of the Notes set forth in this Agreement was established
by the Transferor and the Bank following discussions and arms-length
negotiations with the Underwriters, the Transferor and the Bank are capable
of evaluating and understanding and understand and accept the terms, risks
and conditions of the transactions contemplated by this Agreement;
(c) they have been advised that the Underwriters and their affiliates
are engaged in a broad range of transactions which may involve interests
that differ from those of the Transferor and the Bank and that the
Underwriters have no obligation to disclose such interests and transactions
to the Transferor or the Bank by virtue of any fiduciary, advisory or
agency relationship; and
(d) they waive, to the fullest extent permitted by law, any claims
they may have against the Underwriters for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Underwriters shall have
no liability (whether direct or indirect) to the Transferor or the Bank in
respect of such a fiduciary duty claim or to any person asserting a
fiduciary duty claim on behalf of or in right of the Transferor or the
Bank, including stockholders, employees or creditors of the Transferor and
the Bank.
[Signatures Follow on Next Page]
38
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Transferor whereupon this letter and your
acceptance shall become a binding agreement among the Transferor, the Bank and
the Underwriters.
Very truly yours,
FIRST NATIONAL FUNDING LLC
By FIRST NATIONAL FUNDING CORPORATION,
its Managing Member
By /s/ Karlyn M. Knieriem
-------------------------------------
Name: Karlyn M. Knieriem
Title: Senior Vice President
FIRST NATIONAL BANK OF OMAHA
By /s/ Timothy D. Hart
-------------------------------------
Name: Timothy D. Hart
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
J.P. MORGAN SECURITIES INC.
as Representative of the
Underwriters set forth herein
By /s/ R. Eric Wiedelman
----------------------------------
Name: R. Eric Wiedelman
Title: Executive Director
BANC OF AMERICA SECURITIES LLC
as Representative of the
Underwriters set forth herein
By /s/ James G. Mackey
----------------------------------
Name: James G. Mackey
Title: Managing Director
39
SCHEDULE A
Class A Notes
Underwriters Principal Amount of Class A Notes
- ------------ ---------------------------------
J.P. Morgan Securities Inc. $102,813,000
Banc of America Securities LLC $102,813,000
ABN AMRO Incorporated $102,812,000
Greenwich Capital Markets, Inc. $102,812,000
Total $411,250,000
Class B Notes
Underwriters Principal Amount of Class B Notes
- ------------ ---------------------------------
J.P. Morgan Securities Inc. $20,000,000
Banc of America Securities LLC $20,000,000
Total $40,000,000
40
Class C Notes
Underwriters Principal Amount of Class C Notes
- ------------ ---------------------------------
J.P. Morgan Securities Inc. $24,375,000
Banc of America Securities LLC $24,375,000
Total $48,750,000
41