Representations, Warranties and Agreements of the Bank. The Bank ------------------------------------------------------ represents and warrants to, and agrees with, the Underwriters as follows: (a) The Bank has filed with the Securities and Exchange Commission (the "Commission"), on Form S-3, a registration statement ---------- (Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of 1933, as amended (such act, the "Act"). The Bank may have filed one or more --- amendments thereto each of which amendments has previously been furnished to each of the Underwriters. The Bank will also file with the Commission a prospectus supplement in accordance with Rule 424(b) under the Act. As filed, the registration statement, including any amendments thereto, the form of prospectus supplement, and any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under the Act relating to the Certificates shall, except to the extent that the Underwriters shall agree in writing to a modification, be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus supplement which has previously been furnished to the Underwriters) as the Bank has advised the Underwriters, prior to the Execution Time, will be included or made therein. 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 -------------- ------------------ /1/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA Incorporated and MasterCard International Incorporated, respectively. the date of the Effective Time. Such registration statement, as amended at the Effective Time, and including the exhibits thereto and any material incorporated by reference therein (including any Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is hereinafter referred to as the "Registration ------------ Statement," and any prospectus supplement (the "Prospectus Supplement") relating --------- --------------------- to the Certificates, as filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the prospectus ----------- filed as part of 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) being hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as the "Prospectus". ---------------- ---------- "Execution Time" shall mean the date and time that this Agreement is executed -------------- and delivered by the parties hereto. (b) On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus was first filed and on the Closing Date, the Prospectus did or will, comply in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules and Regulations"); on the Effective Date, --------------------- the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or will not include any untrue statement of a material fact or omit 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; provided, however, that the Bank makes no representation or warranty -------- ------- as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by the Underwriters specifically for use in connection with preparation of the Registration Statement or the Prospectus. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank and (ii) the Bank has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Bank that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Certificates, otherwise than as set forth or contemplated in the Prospectus. (d) The Bank is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware and is qualified to transact business in and is in good standing under the laws of each state in which its activities require such qualification, and has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Certificates and the Transfer and Administration Agreement, dated as of the Closing Date (the "Transfer and Administration --------------------------- Agreement"), by and among the Bank, Bankers Trust (Delaware), a Delaware banking --------- corporation, not in its individual capacity but solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-1 (in such capacity, the "Owner ----- Trust"), and The Bank of New York, a New York banking corporation, not in its ----- individual capacity but solely as Indenture Trustee (in such capacity, the "Indenture Trustee"). ------------------ (e) This Agreement has been duly authorized and validly executed and delivered by the Bank. (f) The Pooling and Servicing Agreement has been duly authorized and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Pooling and Servicing Agreement will have been duly and validly executed by the Bank and will conform in all material respects to the description thereof contained in the Prospectus. (g) The Certificates have been duly and validly authorized by all required action of the Bank, and, when duly and validly executed by the Bank, authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Certificates will have been duly and validly executed by the Bank, and will conform in all material respects to the descriptions thereof contained in the Prospectus. (h) The Transfer and Administration Agreement has been duly authorized, and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Transfer and Administration Agreement will have been validly executed by the Bank. (i) The Receivables delivered on the Closing Date to the Trustee pursuant to the Pooling and Servicing Agreement will conform in all material respects with the description thereof contained in the Prospectus. (j) Neither the transfer of the Receivables to the Trustee, nor the issuance, sale and delivery of the Certificates, nor the execution or delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank, or conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of the Bank to perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or the Certificates. (k) There are no charges, investigations, actions, suits, claims or proceedings before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate (i) could have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity of this Agreement, the Transfer and Administration Agreement the Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus. (l) No federal, state or local tax, including intangibles tax or documentary stamp tax, the non-payment of which would result in the imposition of a Lien on the Receivables or of transferee liability on the Trustee, is imposed with respect to the conveyance of the Receivables from the Bank to the Trust, or in connection with the issuance of the Certificates by the Trust, or the holding of the Receivables by the Trust, or in connection with any of the other transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of the Certificates or the execution and delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement have been or will have been paid at or prior to the Closing Date. (m) As of the Closing Date, the representations and warranties of the Bank in the Pooling and Servicing Agreement, with regard to itself as both transferor and servicer and the Receivables (individually and in the aggregate), will be true and correct. (n) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of or compliance by the Bank with this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates or the consummation of the transactions contemplated hereby or thereby except the filing of Uniform Commercial Code financing statements with respect to the Receivables and to the approval of the Office of the State Bank Commissioner of the State of Delaware. (o) Coopers & Xxxxxxx L.L.P. who have audited certain financial statements of the Banc One Corporation are independent public accountants as required by the Act and the Rules and Regulations. (p) As of the Closing Date, the Principal Receivables transferred to the Trust pursuant to the Pooling and Servicing Agreement will have an aggregate balance of not less than the sum of (i) the aggregate outstanding principal amount of all classes of all Series outstanding at the close of business on the Closing Date (including Series 1998-1), plus (ii) 7% of ---- the amount stated in clause (i). (q) The Trust is not, and will not be as a result of the issuance and sale of the Certificates, an "investment company" or a company "controlled by" an investment company within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"). --------
Appears in 1 contract
Samples: Underwriting Agreement (First Usa Credit Card Master Trust)
Representations, Warranties and Agreements of the Bank. The Bank ------------------------------------------------------ represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission (the "Commission"), on Form S-3, a registration statement ---------- ----------- (Registration No. 333-2422787653) pursuant to Rule 415 under the Securities Act of 1933, as amended (such act, the "Act"). The Bank may have filed one or more --- amendments thereto each of which amendments has previously been furnished to each of the Underwriters. The Bank will also file with the Commission a prospectus supplement in accordance with Rule 424(b) under the Act. As filed, the registration statement, including any amendments thereto, the form of prospectus supplement, and any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under the Act relating to the Certificates shall, except to the extent that the Underwriters shall agree in writing to a modification, be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus supplement which has previously been furnished to the Underwriters) as the Bank has advised the Underwriters, prior to the Execution Time, will be included or made therein. 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 -------------- ------------------ /1/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA Incorporated and MasterCard International Incorporated, respectively. the date of the Effective Time. Such registration statement, as amended at the Effective Time, and including the exhibits thereto and any material incorporated by reference therein (including any Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is hereinafter referred to as the "Registration ------------ Statement," and any prospectus supplement (the "Prospectus Supplement") relating --------- --------------------- to the Certificates, as filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the prospectus ----------- filed as part of 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) being hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as the "Prospectus". ---------------- ---------- "Execution Time" shall mean the date and time that this Agreement is executed -------------- and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus was first filed and on the Closing Date, the Prospectus did or will, comply in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules and Regulations"); on the Effective Date, --------------------- the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or will not include any untrue statement of a material fact or omit 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; provided, however, that the Bank makes no representation or warranty -------- ------- as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by the Underwriters specifically for use in connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank and (ii) the Bank has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Bank that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Certificates, otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware and is qualified to transact business in and is in good standing under the laws of each state in which its activities require such qualification, and has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Certificates and the Transfer and Administration Agreement, dated as of the Closing Date (the "Transfer and Administration --------------------------- Agreement"), by and among the Bank, Bankers Trust (Delaware), a Delaware banking --------- corporation, not in its individual capacity but solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-1 (in such capacity, the "Owner ----- Trust"), and The Bank of New York, a New York banking corporation, not in its ----- individual capacity but solely as Indenture Trustee (in such capacity, the "Indenture Trustee"). ------------------
(e) This Agreement has been duly authorized and validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Pooling and Servicing Agreement will have been duly and validly executed by the Bank and will conform in all material respects to the description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all required action of the Bank, and, when duly and validly executed by the Bank, authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Certificates will have been duly and validly executed by the Bank, and will conform in all material respects to the descriptions thereof contained in the Prospectus.
(h) The Transfer and Administration Agreement has been duly authorized, and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Transfer and Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee pursuant to the Pooling and Servicing Agreement will conform in all material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the issuance, sale and delivery of the Certificates, nor the execution or delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank, or conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of the Bank to perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or proceedings before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate (i) could have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity of this Agreement, the Transfer and Administration Agreement the Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or documentary stamp tax, the non-payment of which would result in the imposition of a Lien on the Receivables or of transferee liability on the Trustee, is imposed with respect to the conveyance of the Receivables from the Bank to the Trust, or in connection with the issuance of the Certificates by the Trust, or the holding of the Receivables by the Trust, or in connection with any of the other transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of the Certificates or the execution and delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of the Bank in the Pooling and Servicing Agreement, with regard to itself as both transferor and servicer and the Receivables (individually and in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of or compliance by the Bank with this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates or the consummation of the transactions contemplated hereby or thereby except the filing of Uniform Commercial Code financing statements with respect to the Receivables and to the approval of the Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & Xxxxxxx L.L.P. who have audited certain financial statements of the Banc One Corporation are independent public accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receivables transferred to the Trust pursuant to the Pooling and Servicing Agreement will have an aggregate balance of not less than the sum of (i) the aggregate outstanding principal amount of all classes of all Series outstanding at the close of business on the Closing Date (including Series 1998-1), plus (ii) 7% of ---- the amount stated in clause (i).
(q) The Trust is not, and will not be as a result of the issuance and sale of the Certificates, an "investment company" or a company "controlled by" an investment company within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"). --------
Appears in 1 contract
Samples: Underwriting Agreement (First Usa Credit Card Master Trust)
Representations, Warranties and Agreements of the Bank. The Bank bank ------------------------------------------------------ represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission (the "Commission"), on Form S-3, a registration statement ---------- (Registration No. 333-2422787653) pursuant to Rule 415 under the Securities Act of 1933, as amended (such act, the "Act"). The Bank may have filed one or more --- amendments thereto each of which amendments has previously been furnished to each of the Underwriters. The Bank will also file with the Commission a prospectus supplement in accordance with Rule 424(b) under the Act. As filed, the registration statement, including any amendments thereto, the form of prospectus supplement, and any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under the Act relating to the Certificates shall, except to the extent that the Underwriters shall agree in writing to a modification, be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus supplement which has previously been furnished to the Underwriters) as the Bank has advised the Underwriters, prior to the Execution Time, will be included or made therein. For purposes of this Agreement, "Effective Time" means the date _____________________________ /1/ VISA(R) 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 -------------- ------------------ /1/ VISA/(R)/ and MasterCard/(R)/ MasterCard(R) are registered trademarks of Visa VISA USA Incorporated and MasterCard International Incorporated, respectively. the date of the Effective Time. Such registration statement, as amended at the Effective Time, and including the exhibits thereto and any material incorporated by reference therein (including any Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is hereinafter referred to as the "Registration ------------ Statement," and any prospectus supplement (the "Prospectus Supplement") relating --------- --------------------- to the Certificates, as filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the prospectus ----------- filed as part of 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) being hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as the "Prospectus". ---------------- ---------- "Execution Time" shall mean the date and time that this Agreement is executed -------------- and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus was first filed and on the Closing Date, the Prospectus did or will, comply in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules and Regulations"); on the Effective Date, --------------------- the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or will not include any untrue statement of a material fact or omit 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; provided, however, that the Bank makes no representation or warranty -------- ------- as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by the Underwriters specifically for use in connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank and (ii) the Bank has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Bank that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Certificates, otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware and is qualified to transact business in and is in good standing under the laws of each state in which its activities require such qualification, and has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Certificates and the Transfer and Administration Agreement, dated as of the Closing Date (the "Transfer and Administration --------------------------- Agreement"), by and among the Bank, Bankers Trust (Delaware), a Delaware banking --------- corporation, not in its individual capacity but solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-1 (in such capacity, the "Owner ----- Trust"), and The Bank of New York, a New York banking corporation, not in its ----- individual capacity but solely as Indenture Trustee (in such capacity, the "Indenture Trustee"). ------------------
(e) This Agreement has been duly authorized and validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Pooling and Servicing Agreement will have been duly and validly executed by the Bank and will conform in all material respects to the description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all required action of the Bank, and, when duly and validly executed by the Bank, authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Certificates will have been duly and validly executed by the Bank, and will conform in all material respects to the descriptions thereof contained in the Prospectus.
(h) The Transfer and Administration Agreement has been duly authorized, and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Transfer and Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee pursuant to the Pooling and Servicing Agreement will conform in all material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the issuance, sale and delivery of the Certificates, nor the execution or delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank, or conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of the Bank to perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or proceedings before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate (i) could have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity of this Agreement, the Transfer and Administration Agreement the Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or documentary stamp tax, the non-payment of which would result in the imposition of a Lien on the Receivables or of transferee liability on the Trustee, is imposed with respect to the conveyance of the Receivables from the Bank to the Trust, or in connection with the issuance of the Certificates by the Trust, or the holding of the Receivables by the Trust, or in connection with any of the other transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of the Certificates or the execution and delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of the Bank in the Pooling and Servicing Agreement, with regard to itself as both transferor and servicer and the Receivables (individually and in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of or compliance by the Bank with this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates or the consummation of the transactions contemplated hereby or thereby except the filing of Uniform Commercial Code financing statements with respect to the Receivables and to the approval of the Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & Xxxxxxx L.L.P. who have audited certain financial statements of the Banc One Corporation are independent public accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receivables transferred to the Trust pursuant to the Pooling and Servicing Agreement will have an aggregate balance of not less than the sum of (i) the aggregate outstanding principal amount of all classes of all Series outstanding at the close of business on the Closing Date (including Series 1998-1), plus (ii) 7% of ---- the amount stated in clause (i).
(q) The Trust is not, and will not be as a result of the issuance and sale of the Certificates, an "investment company" or a company "controlled by" an investment company within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"). --------
Appears in 1 contract
Samples: Underwriting Agreement (First Usa Bank National Association)
Representations, Warranties and Agreements of the Bank. The ------------------------------------------------------ Bank ------------------------------------------------------ represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission (the "Commission"), on Form S-3, a registration statement ---------- (Registration No. 333-2422787653) pursuant to Rule 415 under the Securities Act of 1933, as amended (such act, the "Act"). The Bank may have filed one or more --- amendments thereto each of which amendments has previously been furnished to each of the Underwriters. The Bank will also file with the Commission a prospectus supplement in accordance with Rule 424(b) under the Act. As filed, the registration statement, including any amendments thereto, the form of prospectus supplement, and any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under the Act relating to the Certificates shall, except to the extent that the Underwriters shall agree in writing to a modification, be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus supplement which has previously been furnished to the Underwriters) as the Bank has advised the Underwriters, prior to the Execution Time, will be included or made therein. For purposes of this Agreement, "Effective Time" means the date ---------------------- /1/ VISA(R) 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 -------------- ------------------ /1/ VISA/(R)/ and MasterCard/(R)/ MasterCard(R) are registered trademarks of Visa VISA USA Incorporated and MasterCard International Incorporated, respectively. the date of the Effective Time. Such registration statement, as amended at the Effective Time, and including the exhibits thereto and any material incorporated by reference therein (including any Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is hereinafter referred to as the "Registration ------------ Statement," and any prospectus supplement (the "Prospectus Supplement") relating --------- --------------------- to the Certificates, as filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the prospectus ----------- filed as part of 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) being hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as the "Prospectus". ---------------- ---------- "Execution Time" shall mean the date and time that this Agreement is executed -------------- and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus was first filed and on the Closing Date, the Prospectus did or will, comply in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules and Regulations"); on the Effective Date, --------------------- the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or will not include any untrue statement of a material fact or omit 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; provided, however, that the Bank makes no representation or warranty -------- ------- as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by the Underwriters specifically for use in connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank and (ii) the Bank has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Bank that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Certificates, otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware and is qualified to transact business in and is in good standing under the laws of each state in which its activities require such qualification, and has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Certificates and the Transfer and Administration Agreement, dated as of the Closing Date (the "Transfer and Administration --------------------------- Agreement"), by and among the Bank, Bankers Trust (Delaware), a Delaware banking --------- corporation, not in its individual capacity but solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-1 (in such capacity, the "Owner ----- Trust"), and The Bank of New York, a New York banking corporation, not in its ----- individual capacity but solely as Indenture Trustee (in such capacity, the "Indenture Trustee"). ------------------
(e) This Agreement has been duly authorized and validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Pooling and Servicing Agreement will have been duly and validly executed by the Bank and will conform in all material respects to the description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all required action of the Bank, and, when duly and validly executed by the Bank, authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Certificates will have been duly and validly executed by the Bank, and will conform in all material respects to the descriptions thereof contained in the Prospectus.
(h) The Transfer and Administration Agreement has been duly authorized, and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Transfer and Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee pursuant to the Pooling and Servicing Agreement will conform in all material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the issuance, sale and delivery of the Certificates, nor the execution or delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank, or conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of the Bank to perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or proceedings before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate (i) could have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity of this Agreement, the Transfer and Administration Agreement the Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or documentary stamp tax, the non-payment of which would result in the imposition of a Lien on the Receivables or of transferee liability on the Trustee, is imposed with respect to the conveyance of the Receivables from the Bank to the Trust, or in connection with the issuance of the Certificates by the Trust, or the holding of the Receivables by the Trust, or in connection with any of the other transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of the Certificates or the execution and delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of the Bank in the Pooling and Servicing Agreement, with regard to itself as both transferor and servicer and the Receivables (individually and in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of or compliance by the Bank with this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates or the consummation of the transactions contemplated hereby or thereby except the filing of Uniform Commercial Code financing statements with respect to the Receivables and to the approval of the Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & Xxxxxxx L.L.P. who have audited certain financial statements of the Banc One Corporation are independent public accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receivables transferred to the Trust pursuant to the Pooling and Servicing Agreement will have an aggregate balance of not less than the sum of (i) the aggregate outstanding principal amount of all classes of all Series outstanding at the close of business on the Closing Date (including Series 1998-1), plus (ii) 7% of ---- the amount stated in clause (i).
(q) The Trust is not, and will not be as a result of the issuance and sale of the Certificates, an "investment company" or a company "controlled by" an investment company within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"). --------
Appears in 1 contract
Samples: Underwriting Agreement (First Usa Credit Card Master Trust)
Representations, Warranties and Agreements of the Bank. The Bank ------------------------------------------------------ represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission (the "Commission"), on Form S-3, a registration statement ---------- (Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of 1933, as amended (such act, the "Act"). The Bank may have filed one or more --- amendments thereto each of which amendments has previously been furnished to each of the Underwriters. The Bank will also file with the Commission a prospectus supplement in accordance with Rule 424(b) under the Act. As filed, the registration statement, including any amendments thereto, the form of prospectus supplement, and any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under the Act relating to the Certificates shall, except to the extent that the Underwriters shall agree in writing to a modification, be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus supplement which has previously been furnished to the Underwriters) as the Bank has advised the Underwriters, prior to the Execution Time, will be included or made therein. 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 -------------- ------------------ /1/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA Incorporated and MasterCard International Incorporated, respectively. the date of the Effective Time. Such registration statement, as amended at the Effective Time, and including the exhibits thereto and any material incorporated by reference therein (including any Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is hereinafter referred to as the "Registration ------------ Statement," and any prospectus supplement (the "Prospectus Supplement") relating --------- --------------------- to the Certificates, as filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the prospectus ----------- filed as part of 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) being hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as the "Prospectus". ---------------- ---------- "Execution Time" shall mean the date and time that this Agreement is executed -------------- and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus was first filed and on the Closing Date, the Prospectus did or will, comply in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules and Regulations"); on the Effective Date, --------------------- the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or will not include any untrue statement of a material fact or omit 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; provided, however, that the Bank makes no representation or warranty -------- ------- as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by the Underwriters specifically for use in connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank and (ii) the Bank has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Bank that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Certificates, otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware and is qualified to transact business in and is in good standing under the laws of each state in which its activities require such qualification, and has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Certificates and the Transfer and Administration Agreement, dated as of the Closing Date (the "Transfer and Administration --------------------------- Agreement"), by and among the Bank, Bankers Trust (Delaware), a Delaware banking --------- corporation, not in its individual capacity but solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-1 (in such capacity, the "Owner ----- Trust"), and The Bank of New York, a New York banking corporation, not in its ----- individual capacity but solely as Indenture Trustee (in such capacity, the "Indenture Trustee"). ------------------
(e) This Agreement has been duly authorized and validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Pooling and Servicing Agreement will have been duly and validly executed by the Bank and will conform in all material respects to the description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all required action of the Bank, and, when duly and validly executed by the Bank, authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Certificates will have been duly and validly executed by the Bank, and will conform in all material respects to the descriptions thereof contained in the Prospectus.
(h) The Transfer and Administration Agreement has been duly authorized, and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Transfer and Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee pursuant to the Pooling and Servicing Agreement will conform in all material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the issuance, sale and delivery of the Certificates, nor the execution or delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank, or conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of the Bank to perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or proceedings before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate (i) could have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity of this Agreement, the Transfer and Administration Agreement the Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or documentary stamp tax, the non-payment of which would result in the imposition of a Lien on the Receivables or of transferee liability on the Trustee, is imposed with respect to the conveyance of the Receivables from the Bank to the Trust, or in connection with the issuance of the Certificates by the Trust, or the holding of the Receivables by the Trust, or in connection with any of the other transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of the Certificates or the execution and delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of the Bank in the Pooling and Servicing Agreement, with regard to itself as both transferor and servicer and the Receivables (individually and in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of or compliance by the Bank with this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates or the consummation of the transactions contemplated hereby or thereby except the filing of Uniform Commercial Code financing statements with respect to the Receivables and to the approval of the Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & Xxxxxxx L.L.P. who have audited certain financial statements of the Banc One Corporation are independent public accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receivables transferred to the Trust pursuant to the Pooling and Servicing Agreement will have an aggregate balance of not less than the sum of (i) the aggregate outstanding principal amount of all classes of all Series outstanding at the close of business on the Closing Date (including Series 1998-1), plus (ii) 7% of ---- the amount stated in clause (i).
(q) The Trust is not, and will not be as a result of the issuance and sale of the Certificates, an "investment company" or a company "controlled by" an investment company within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"). --------
Appears in 1 contract
Samples: Underwriting Agreement (First Usa Credit Card Master Trust)
Representations, Warranties and Agreements of the Bank. The Bank ------------------------------------------------------ represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission (the "Commission"), on Form S-3, a registration statement ---------- (Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of 1933, as amended (such act, the "Act"). The Bank may have filed one or more --- amendments thereto each of which amendments has previously been furnished to each of the Underwriters. The Bank will also file with the Commission a prospectus supplement in accordance with Rule 424(b) under the Act. As filed, the registration statement, including any amendments thereto, the form of prospectus supplement, and any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under the Act relating to the Certificates shall, except to the extent that the Underwriters shall agree in writing to a modification, be in all substantive respects in the form furnished to the Representative Representatives prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus supplement which has previously been furnished to the Underwriters) as the Bank has advised the Underwriters, prior to the Execution Time, will be included or made therein. 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 -------------- ------------------ ----------------- /1/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA Incorporated and MasterCard International Incorporated, respectively. the date of the Effective Time. Such registration statement, as amended at the Effective Time, and including the exhibits thereto and any material incorporated by reference therein (including any Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is hereinafter referred to as the "Registration ------------ Statement," and any prospectus supplement (the "Prospectus Supplement") relating --------- --------------------- to the Certificates, as filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the prospectus ----------- filed as part of 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) being hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as the "Prospectus". ---------------- ---------- "Execution Time" shall mean the date and time that this Agreement is executed -------------- and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus was first filed and on the Closing Date, the Prospectus did or will, comply in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules and Regulations"); on the Effective Date, --------------------- the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or will not include any untrue statement of a material fact or omit 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; provided, however, that the Bank makes no representation or warranty -------- ------- as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Bank by the Underwriters specifically for use in connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank and (ii) the Bank has not entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Bank that, in either case, would reasonably be expected to materially adversely affect the interests of the holders of the Certificates, otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware and is qualified to transact business in and is in good standing under the laws of each state in which its activities require such qualification, and has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Certificates and the Transfer and Administration Agreement, dated as of the Closing Date (the "Transfer and Administration --------------------------- Agreement"), by and among the Bank, Bankers Trust (Delaware), a Delaware banking --------- corporation, not in its individual capacity but solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-1 (in such capacity, the "Owner ----- Trust"), and The Bank of New York, a New York banking corporation, not in its ----- individual capacity but solely as Indenture Trustee (in such capacity, the "Indenture Trustee"). ------------------
(e) This Agreement has been duly authorized and validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Pooling and Servicing Agreement will have been duly and validly executed by the Bank and will conform in all material respects to the description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all required action of the Bank, and, when duly and validly executed by the Bank, authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Certificates will have been duly and validly executed by the Bank, and will conform in all material respects to the descriptions thereof contained in the Prospectus.
(h) The Transfer and Administration Agreement has been duly authorized, and, when executed and delivered by the Bank and assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Transfer and Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee pursuant to the Pooling and Servicing Agreement will conform in all material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the issuance, sale and delivery of the Certificates, nor the execution or delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank, or conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of the Bank to perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or proceedings before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate (i) could have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders' equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity of this Agreement, the Transfer and Administration Agreement the Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or documentary stamp tax, the non-payment of which would result in the imposition of a Lien on the Receivables or of transferee liability on the Trustee, is imposed with respect to the conveyance of the Receivables from the Bank to the Trust, or in connection with the issuance of the Certificates by the Trust, or the holding of the Receivables by the Trust, or in connection with any of the other transactions contemplated by this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of the Certificates or the execution and delivery of this Agreement, the Transfer and Administration Agreement or the Pooling and Servicing Agreement have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of the Bank in the Pooling and Servicing Agreement, with regard to itself as both transferor and servicer and the Receivables (individually and in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of or compliance by the Bank with this Agreement, the Transfer and Administration Agreement, the Pooling and Servicing Agreement, or the Certificates or the consummation of the transactions contemplated hereby or thereby except the filing of Uniform Commercial Code financing statements with respect to the Receivables and to the approval of the Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & Xxxxxxx L.L.P. who have audited certain financial statements of the Banc One Corporation are independent public accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receivables transferred to the Trust pursuant to the Pooling and Servicing Agreement will have an aggregate balance of not less than the sum of (i) the aggregate outstanding principal amount of all classes of all Series outstanding at the close of business on the Closing Date (including Series 1998-1), plus (ii) 7% of ---- the amount stated in clause (i).
(q) The Trust is not, and will not be as a result of the issuance and sale of the Certificates, an "investment company" or a company "controlled by" an investment company within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"). --------
Appears in 1 contract
Samples: Underwriting Agreement (First Usa Credit Card Master Trust)
