EXHIBIT 1.2
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1997-7
Class B Floating Rate Asset Backed Certificates,
Series 1997-7
UNDERWRITING AGREEMENT
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August 18, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
World Financial Center, North Tower
New York, New York 10281-1315
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"),
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has duly authorized the issuance and sale to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (the "Underwriter"), of First USA Credit Card Master Trust
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$500,000,000 aggregate principal amount of Class A Floating Rate Asset Backed
Certificates, Series 1997-7 (the "Class A Certificates") and $45,180,000
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aggregate principal amount of Class B Floating Rate Asset Backed Certificates,
Series 1997-7 (the "Class B Certificates" and together with the Class A
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Certificates, the "Certificates"). The Certificates will be issued pursuant to
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a Pooling and Servicing Agreement, dated as of September 1, 1992 (the "Master
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Pooling and Servicing Agreement"), as supplemented by the Series 1997-7
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Supplement dated as of the Closing Date (the "Supplement" and together with the
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Master Pooling and Servicing Agreement, the "Pooling and Servicing Agreement"),
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each by and between the Bank, as transferor and servicer, and The Bank of New
York (Delaware) (the "Trustee").
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Each Certificate will represent an undivided interest in certain
assets of First USA Credit Card Master Trust (the "Trust"). The property of the
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Trust will include, among other things, receivables (the "Receivables") arising
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under certain
MasterCard(R) and VISA(R)* revolving credit card accounts (the "Accounts").
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The Bank
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represents and warrants to, and agrees with, the Underwriter 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-
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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
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which amendments has previously been furnished to the Underwriter. 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 as amended, 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 Underwriter shall agree in writing to a modification, be
in all substantive respects in the form furnished to you 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 Underwriter) as the Bank has advised the Underwriter, prior to the
Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
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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
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statement, as amended at the Effective Time, and including the exhibits thereto
and any material incorporated by reference therein, is hereinafter referred to
as the "Registration Statement," and any prospectus supplement (the "Prospectus
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Supplement") relating to the Certificates, as filed with the Commission pursuant
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to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is,
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* VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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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
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to as the "Prospectus". "Execution Time" shall mean the date and time that this
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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 (the "Rules and Regulations"); on the Effective Date, the
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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,
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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 Underwriter 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
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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 Spread Account
Agreement dated as of the Closing Date by and among the Bank, as Transferor and
Servicer, the Trustee and The Bank of New York, as initial collateral agent (the
"Spread Account Agreement"), the Pooling and Servicing Agreement, and the
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Certificates.
(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 Underwriter 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 Spread Account 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
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Spread Account 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 Spread Account 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 Spread Account 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 Spread Account 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 Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates, (ii) assert the invalidity of this
Agreement, the Spread Account Agreement, the Pooling and Servicing Agreement, or
the Certificates, (iii) seek
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to prevent the issuance, sale or delivery of the Certificates or any of the
transactions contemplated by this Agreement, the Spread Account 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 Spread Account 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 Spread
Account 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 Spread Account 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) Xxxxxxx & Xxxxxxx L.L.P. who have audited certain financial
statements of the Bank are independent public accountants as required by the Act
and the Rules and Regulations.
(p) As of the close of business on June 30, 1997, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement have an aggregate balance determined, including the Receivables in the
Additional Accounts to be added to the Trust on or prior to the Closing Date, of
not less than the sum of (i) the sum of (x) the aggregate outstanding
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principal amount of all classes of all Series outstanding on June 30, 1997, plus
(y) $2,951,800,000 plus (ii) 7% of the sum of (x) plus (y).
(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").
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2. Purchase, Sale, Payment and Delivery of Certificates. On the
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basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Bank, on
September 9, 1997 or on such other date as shall be mutually agreed upon by the
Bank and the Underwriter (the "Closing Date"), $500,000,000 aggregate principal
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amount of Class A Certificates and $45,180,000 aggregate principal amount of
Class B Certificates. The Class A Certificates being purchased by the
Underwriter hereunder are to be purchased at a purchase price equal to 99.90% of
the principal amount thereof. The Class B Certificates being purchased by the
Underwriter hereunder are to be purchased at a purchase price equal to 99.60% of
the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall be
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held at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the
Closing Date. Payment of the purchase price for the Certificates being sold and
purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
3. Offering by Underwriter. It is understood that after the
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Effective Date the Underwriter proposes to offer the Certificates as set forth
in the Prospectus.
4. Certain Agreements of the Bank. The Bank covenants and agrees
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with the Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Bank
will prepare a Prospectus Supplement setting
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forth the amount of Certificates covered thereby and the terms thereof not
otherwise specified in the Basic Prospectus, the price at which such
Certificates are to be purchased by the Underwriter, the initial public offering
price, the selling concessions and allowances, and such other information as the
Bank deems appropriate. The Bank will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing that complies with all applicable
provisions of Rule 424(b). The Bank will advise you promptly of any such filing
pursuant to Rule 424(b).
(b) The Bank will advise you promptly of any pro posal to amend or
supplement the Registration Statement or the Prospectus and will not effect such
amendment or supplement without your consent, which consent will not
unreasonably be withheld; the Bank will also advise you promptly of any request
by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information; and the Bank will
also advise you promptly of any amendment or supplement to the Registration
Statement or the Pro spectus and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose and the Bank will use
its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act, the Bank promptly will advise you thereof
and will prepare and file, or cause to be prepared and filed, with the
Commission an amendment or supplement which will correct such statement or
omission, or an amendment or supplement which will effect such compliance. Any
such filing shall not operate as a waiver or limitation on any condition or
right of the Underwriter hereunder.
(d) As soon as practicable, but not later than sixteen months after
the original effective date of the Registration Statement, the Bank will cause
the Trust to make generally available to Certificateholders an earnings
statement (or statements) of the Trust covering a period of at least twelve
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months beginning after the effective date of the Registration Statement which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(e) The Bank will furnish to the Underwriter copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus or prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Underwriter requests.
(f) The Bank will promptly, from time to time, take such action as you
may reasonably request to qualify the Certificates for offering and sale under
the securities laws of such jurisdictions as the Underwriter may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Certificates, provided that in connection therewith the Bank
shall not be required to qualify as a foreign corporation or dealer in
securities or to file a general consent to service of process in any
jurisdiction.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, the Bank will deliver to you the annual statements of
compliance and the annual independent certified public accountants' reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(h) So long as any of the Certificates are outstanding, the Bank will
furnish to you (i) as soon as practicable after the end of the fiscal year all
documents required to be distributed to Certificateholders or filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any order of the Commission thereunder and (ii) from time to
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time, any other information concerning the Bank filed with any government or
regulatory authority which is otherwise publicly available, as you reasonably
request.
(i) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
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5. Payment of Expenses. The Bank will pay all expenses incident to
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the performance of its obligations under this Agreement, including (i) the
printing of the Prospectus and of each amendment or supplement thereto, (ii) the
preparation of this Agreement, the Spread Account Agreement, and the Pooling and
Servicing Agreement, (iii) the preparation, issuance and delivery of the
Certificates to the Underwriter, (iv) the fees and disbursements of the Bank's
counsel and accountants, (v) the qualification of the Certificates under
securities laws in accordance with the provisions of Section 4(f) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriter and in connection with the preparation of any blue sky and legal
investment survey, (vi) the printing and delivery to the Underwriter of copies
of the Prospectus and of each amendment or supplement thereto, (vii) the
printing and delivery to the Underwriter of copies of any blue sky or legal
investment survey prepared in connection with the Certificates, (viii) any fees
charged by rating agencies for the rating of the Certificates, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the fees and expenses of the
Trustee and its counsel. The Underwriter has agreed to reimburse the Bank for
expenses not to exceed $522,590 incurred by the Bank in connection with the
issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriter. The obligations
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of the Underwriter to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Bank
herein, to the accuracy of the statements of officers of the Bank made pursuant
to the provisions hereof, to the performance by the Bank of its obligations
hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the rules and regulations
under the Act and Section 1 hereof, 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 Bank, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and on or prior to the
Closing Date, the Underwriter shall have received a letter or letters, dated as
of the date of the Prospectus and as of the Closing Date, respectively, of
Xxxxxxx &
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Xxxxxxx L.L.P., Certified Public Accountants, substantially in the form of the
drafts to which you have previously agreed and otherwise in form and substance
satisfactory to you and your counsel.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, or the Bank which, in the judgment of the Underwriter, materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to market the Certificates; (ii) any suspension or limitation on
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers National Market system, or any setting of
minimum prices for trading on such exchange or market system; (iii) any
suspension of trading of any securities of BANC ONE CORPORATION on any exchange
or in the over-the-counter market which materially impairs the investment
quality of the Certificates or makes it impractical or inadvisable to market the
Certificates; (iv) any banking moratorium declared by Federal, Delaware or New
York authorities; or (v) any outbreak or escalation of major hostilities or
armed conflict, any declaration of war by Congress, or any other substantial
national or international calamity or emergency if, in the judgment of the
Underwriter, the effect of any such outbreak, escalation, declaration, calamity,
or emergency makes it impractical or inadvisable to proceed with completion of
the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to you
certificates of a vice president or more senior officer of the Bank as to the
accuracy of the representations and warranties of the Bank herein at and as of
the Closing Date, as to the performance by the Bank of all of its obligations
hereunder to be performed at or prior to such Closing Date, and as to such
other matters as you may reasonably request.
(e) Xxxxxx Xxxxxxxx, Associate General Counsel of First USA Bank,
shall have furnished to you her written opinion, addressed to you and dated the
Closing Date, in form and substance satisfactory to you and your counsel,
substantially to the effect that:
(i) The Bank has been duly incorporated and is validly existing as
a bank in good standing under the laws of the State of Delaware with
full power and authority (corporate and other) to own its properties
and conduct its business, as presently
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owned and conducted by it, and to enter into and perform its
obligations under this Agreement, the Spread Account Agreement and the
Pooling and Servicing Agreement (collectively referred to in this
subsection (e) as the "Agreements"), and the Certificates and had at
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all times, and now has, the power, authority and legal right to
acquire, own and transfer the Receivables;
(ii) The Bank is duly qualified to do business and is in good
standing, and under state laws, as they are currently interpreted and
enforced, has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such licenses or
approvals would materially and adversely affect the enforceability of
any Receivable by the Bank or the Trustee or would adversely affect
the ability of the Bank to perform its obligations under the
Agreements or the Certificates;
(iii) The Certificates have been duly authorized, executed and
delivered by the Bank and, when duly authenticated by the Trustee in
accordance with the terms of the Pooling and Servicing Agreement and
delivered to and paid for by the Underwriter in accordance with the
terms of this Agreement, will be validly issued and outstanding and
entitled to the benefits provided by the Pooling and Servicing
Agreement;
(iv) Each of the Agreements has been duly authorized, executed
and delivered by the Bank and constitutes the legal, valid and binding
agreement of the Bank enforceable against the Bank in accordance with
its terms, subject, as to enforceability to (A) the effect of
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation and other similar laws relating to or affecting the rights
and remedies of creditors generally, and (B) the application of
principles of equity (regardless of whether considered and applied in
a proceeding in equity or at law) and the rights and powers of the
FDIC;
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(v) The Trust is not now, and immediately following the sale of
the Certificates pursuant to the Underwriting Agreement will not be,
required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution,
delivery and performance by the Bank of its obligations under the
Agreements or the Certificates, or (B) the issuance or sale of the
Certificates, except such as have been obtained under the Act and as
may be required under state securities or blue sky laws in connection
with the purchase and distribution of the Certificates by the
Underwriter and the filing of Uniform Commercial Code financing
statements with respect to the Receivables and the approval of the
Office of the State Bank Commissioner of the State of Delaware;
(vii) To the best knowledge of such counsel, neither the
execution and delivery of the Agreements or the Certificates by the
Bank nor the performance by the Bank of the transactions therein
contemplated nor the fulfillment of the terms thereof does or will
result in any violation of any statute or regulation or any order or
decree of any court or governmental authority binding upon the Bank or
its property, or conflict with, or result in a breach or violation of
any term or provision of, or result in a default under any of the
terms and provisions of, the Bank's charter or by-laws or any material
indenture, loan agreement or other material agreement to which the
Bank is a party or by which the Bank is bound;
(viii) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to which the
Bank is a party or to which the Bank is subject which, individually or
in the aggregate (A) would have a material adverse effect on the
ability of the Bank to perform its obligations under the Agreements or
the
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Certificates, (B) assert the invalidity of the Agreements or the
Certificates, (C) seek to prevent the issuance, sale or delivery of
the Certificates or any of the transactions contemplated by the
Agreements or (D) seek to affect adversely the federal income tax or
ERISA attributes of the Certificates described in the Prospectus;
(ix) The Registration Statement and the Prospectus (except for the
financial statements, financial schedules and other financial and
operating data included therein, as to which such counsel expresses no
view) comply as to form with the Act and the Rules and Regulations;
(x) The Registration Statement has become effective under the
Act, and the Prospectus Supplement will be filed with the Commission
pursuant to Rule 424(b) thereunder; and
(xi) Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in the
Registration Statement and Prospectus. Based upon discussion with the
Bank, its accountants and others, however, no facts have come to its
attention that cause it to believe that the Prospectus (except for the
financial statements, financial schedules and other financial and
statistical data included therein, as to which such counsel expresses
no view), contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
(f) You shall have received a letter from Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the effect that you may
rely on those provisions of their opinions to Xxxxx'x Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services, a division of The McGraw-
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Hill Companies, Inc. ("Standard & Poor's") with respect to certain matters
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relating to the transfer of the Receivables to the Trust, with respect to the
perfection of the Trust's interest in the Receivables and with respect to other
related matters.
(g) You shall have received an opinion of Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel to the Bank, addressed to you, dated the
Closing Date and satisfactory in form and substance to you and your counsel, to
the effect that the Certificates will be treated as indebtedness for Federal
income tax purposes and for Delaware income tax purposes.
(h) You shall have received from Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing
Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement and the Spread
Account Agreement (collectively referred to in this subsection (h) as the
"Agreements") constitutes the valid and binding obligation of the Bank,
-----------
enforceable against the Bank in accordance with its terms, except (x) to
the extent that the enforceability thereof may be limited by (a)
bankruptcy, insolvency, receivership, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and the rights of creditors of Delaware chartered banks as the
same may be applied in the event of the bankruptcy, insolvency,
receivership, reorganization, moratorium or other similar event in respect
of the Bank, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and (c)
the qualification that certain of the remedial provisions of the Agreements
may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Agreements taken as a whole,
and the Agreements, together with applicable law, contain adequate
provisions for the practical realization of the benefits of the security
created thereby and (y) such counsel expresses no opinion as to the
enforceability of any rights to contribution or indemnification which are
violative of
15
public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and authenticated in
accordance with the terms of the Pooling and Servicing Agreement and
delivered to and paid for by the Underwriter pursuant to this Agreement,
will be duly and validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement;
(iii) This Agreement has been duly authorized, executed and
delivered by the Bank;
(iv) Neither the execution, delivery or performance by the Bank
of the Agreements or this Agreement, nor the compliance by the Bank with
the terms and provisions thereof or hereof, will contravene any provision
of any applicable law;
(v) Based on such counsel's review of applicable laws, no
governmental approval, which has not been obtained or taken and is not in
full force and effect, is required to authorize or is required in
connection with the execution, delivery or performance of the Agreements by
the Bank;
(vi) The Certificates, the Agreements and this Agreement conform
in all material respects to the descriptions thereof contained in the
Prospectus;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
is not required to be registered under the 1940 Act;
(viii) The statements in the Prospectus under the heading
"Certain Legal Aspects of the Receivables", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material respects; and
16
(ix) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, appeared on its face to be
appropriately responsive in all material respects to the requirements of
the Act and the General Rules and Regulations under the Act, except that in
each case such counsel expresses no opinion as to the financial data
included therein or excluded therefrom or the exhibits to the Registration
Statement, and such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus.
Such opinion shall also state that such counsel has participated in
conferences with officers and representatives of the Bank, counsel for the Bank,
representatives of the independent accountants of the Bank and the Underwriter
at which the contents of the Prospectus and related matters were discussed and,
although such counsel need not pass upon, and need not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Prospectus and shall have made no independent check or verification thereof,
except for those made under the caption "Certain Legal Aspects of the
Receivables" to the extent set forth in paragraph (viii) above, on the basis of
the foregoing, no facts shall have come to such counsel's attention that shall
have led such counsel to believe that the Prospectus, as of its date, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that such counsel need not
express an opinion or belief with respect to the financial statements, schedules
and other financial information included in such Prospectus or excluded
therefrom nor with respect to statements or omissions in the Prospectus with
respect to the deposit of the Class A Certificates by the Underwriter into a
secondary trust or the terms of the secondary trust's securities or the issuance
or sale of the secondary trust's securities.
(i) XxXxxxx, Woods, Battle & Xxxxxx, L.L.P., counsel for The Bank of
New York, a New York banking corporation ("BONY"), in connection with the
----
17
Agency Agreement dated as of December 4, 1995 between BONY and the Trustee (the
"Agency Agreement"), and counsel for the Trustee, shall have furnished to you
----------------
their written opinion, addressed to you and dated the Closing Date, in form and
substance satisfactory to you and your counsel, substantially to the effect
that:
(i) BONY is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York and
has the corporate power and authority to execute, deliver and perform its
obligations under the Agency Agreement;
(ii) the Certificates have been duly authenticated by BONY
pursuant to the Agency Agreement and in accordance with the Pooling and
Servicing Agreement;
(iii) the Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to execute, deliver and
perform its obligations under the Pooling and Servicing Agreement and the
Spread Account Agreement;
(iv) the Supplement and the Spread Account Agreement have been
duly authorized, executed and delivered by the Trustee, and the Pooling and
Servicing Agreement and the Spread Account Agreement constitute the legal,
valid and binding agreements of the Trustee enforceable against the Trustee
in accordance with their respective terms, except (x) as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally (as such laws
would apply in the event of the insolvency, receivership, conservatorship
or reorganization of, or other similar occurrence with respect to, the
Trustee), (y) that the enforceability of the Pooling and Servicing
Agreement and the Spread Account Agreement may be subject to the
application of general principles of equity (regardless of whether
considered or applied in a proceeding in
18
equity or at law), and (z) that certain remedial provisions of the Pooling
and Servicing Agreement may be unenforceable in whole or in part, but the
inclusion of such provisions does not affect the validity of the Pooling
and Servicing Agreement taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contains adequate provisions for
the practical realization of the benefits of the security provided thereby.
Such counsel expresses no opinion as to the enforceability of any rights to
contribution or indemnification that are violative of public policy
underlying any law, rule or regulation;
(v) the execution and delivery by the Trustee of the Supplement
and the Spread Account Agreement and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement and the Spread
Account Agreement do not conflict with or result in a violation of (x) any
law or regulation of the United States of America or the State of Delaware
governing the banking or trust activities of the Trustee or (y) the amended
and restated articles of association or by-laws of the Trustee; and
(vi) the execution and delivery by the Trustee of the Supplement
and the Spread Account Agreement and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement and the Spread
Account Agreement do not require any approval, authorization or other
action by, or filing with, any governmental authority of the United States
of America or the State of Delaware having jurisdiction over the banking or
trust activities of the Trustee, except such as have been obtained, taken
or made.
(j) You shall have received evidence satisfactory to you and your
counsel that, on or before the Closing Date, UCC-1 financing statements have
been filed in the appropriate filing offices of the State of Delaware and such
other jurisdictions as counsel to the Bank deems appropriate to reflect the
interest of the Trustee in the Receivables.
19
(k) The Class A Certificates shall be rated "AAA" by Standard & Poor's
and "Aaa" by Xxxxx'x and the Class B Certificates shall be rated at least "A" by
Standard & Poor's and rated at least "A2" by Xxxxx'x on the Closing Date, and
letters to such effect dated the Closing Date shall have been received from each
Rating Agency.
(l) You shall have received evidence satisfactory to you that, on or
before the Closing Date, the Bank shall have received the approval of the Office
of the State Bank Commissioner of the State of Delaware to the transaction.
(m) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident thereto shall be satisfactory in
form and substance to you and your counsel, and you and your counsel shall have
received such information, certificates and documents as any of them may
reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) The Bank agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Act and under Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities to which they may become subject 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
in any revision or amendment thereof or supplement thereto or any related
preliminary prospectus, 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 not misleading, and agrees to xxxx-
xxxxx each such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
--------
however, that 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 or omission or alleged omission
made therein in reliance upon and in
20
conformity with written information furnished to the Bank by the Underwriter
specifically for use therein or any revision or amendment thereof or supplement
thereto. The foregoing indemnification with respect to any untrue statement or
omission in any preliminary prospectus or prospectus supplement shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Bank shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Certificates to such person and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability provided that the Bank shall have identified to the
Underwriter in writing such defect prior to the delivery of such written
confirmation by the Underwriter to such person.
(b) The Underwriter agrees to indemnify and hold harmless the Bank,
its directors, each of the Bank's officers who signed the Registration Statement
and each person, if any, who controls the Bank within the meaning of Section 15
of the Act and under Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities to which they may become subject 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 in any
revision or amendment thereof or supplement thereto or any related preliminary
prospectus or prospectus supplement, 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 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 written information furnished to the Bank by the
Underwriter specifically for use therein or any revision or amendment thereof
or supplement thereto, and agrees to reimburse such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
21
investigating or defending any such loss, claim, damage or liability or action
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
7 of the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party other than
under this Section 7. In the event that any such action is brought against any
indemnified party and it notified the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
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), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indem nified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than rea-
sonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding 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 claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 7 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 indemnifying 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 Bank on the one hand and the Underwriter on the other from the offering
of the
22
Certificates 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 Bank on the one hand and of the Underwriter 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. The relative benefits received by the Bank on the one hand and
the Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Bank bear to the total underwriting discounts and commissions received by the
Underwriter. 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 Bank or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. 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). Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Certificates purchased by
it hereunder. The Bank and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of any of the equitable considerations referred to above in 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.
8. Survival. The Bank and the Underwriter agree that the respective
--------
representations, warranties and agreements made by them herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon, in the case of the Bank, by
23
the Underwriter and, in the case of the Underwriter, by the Bank,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of the Bank or the Underwriter, and that the respective representations,
warranties and agreements (including without limitation the indemnity and
contribution agreement) made by the Bank and the Underwriter herein or in any
such certificate or other instrument shall survive the delivery of and payment
for the Certificates.
9. Termination. This Agreement may be terminated in the sole
-----------
discretion of the Underwriter by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 9 shall be without liability of any party to
any other party except as provided in Sections 5 and 7 hereof.
10. Representation of the Underwriter. The Underwriter represents
---------------------------------
and warrants to, and agrees with, the Bank that (w) it has only issued or passed
on and shall only issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Certificates to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or who is a person to whom
the document may otherwise lawfully be issued or passed on, (x) it has complied
and shall comply with all applicable provisions of the Financial Services Act
1986 and other applicable laws and regulations with respect to anything done by
it in relation to the Certificates in, from or otherwise involving the United
Kingdom and (y) if that Underwriter is an authorized person under the Financial
Services Act 1986, it has only promoted and shall only promote (as that term is
defined in Regulation 1.02 of the Financial Services (Promotion of Unregulated
Schemes) Regulations 1991) to any person in the United Kingdom the scheme
described in the Prospectus if that person is of a kind described either in
Section 76(2) of the Financial Services Act 1986 or in Regulation 1.04 of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991.
11. Notices. All communications provided for or permitted hereunder
-------
shall be in writing and shall be
24
deemed to have been duly given if personally delivered, sent by overnight
courier or mailed by registered mail, postage prepaid and return receipt
requested, or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, if to (a) the Underwriter, addressed to Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, World Financial Center, North Tower, New
York, New York 10281-1315, Attention: Secretary, or to such other address as the
Underwriter may designate in writing to the Bank or (b) the Bank, addressed to
the Bank at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxx, Senior Vice President and General Counsel, telephone: (302)
000-0000, telecopier: (000) 000-0000, with a copy to First USA Financial, Inc.,
0000 Xxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxx Xxxxxx,
Vice President-Corporate Finance, telephone: (000) 000-0000, telecopier: (214)
849-2472.
12. Computational Materials. The Underwriter represents and warrants
-----------------------
to the Bank that (a) it has not and will not use any information that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994), with respect to the offering of the Certificates, (b) it has not
and will not use any information that constitutes "ABS Term Sheets," as defined
in the Commission's No-Action Letter, dated February 13, 1995, addressed to the
Public Securities Association, with respect to the offering of the Certificates
and (c) it has not and will not use any information that constitutes "Series
Term Sheets," as defined in the Commission's No-Action Letter, dated April 5,
1996, addressed to Greenwood Trust Company, with respect to the offering of the
Certificates, in each case unless it has obtained the prior written consent of
the Bank to such usage.
13. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and assigns.
Nothing expressed herein is intended or shall be construed to give any person
other than the persons referred to in
25
the preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement.
14. Severability of Provisions. Any covenant, provision, agreement
--------------------------
or term of this Agreement that is prohibited or is held to be void or unenforce-
able in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
15. Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
16. Amendment. Neither this Agreement nor any term hereof may be
---------
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
17. Headings. The headings in this Agreement are for the purposes of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
18. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which shall together
constitute one instrument.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
26
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
XXXXXXX LYNCH, XXXXXX,
XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxx X. Xxxx
---------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
