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First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1998-8
Class B Floating Rate Asset Backed Certificates,
Series 1998-8
UNDERWRITING AGREEMENT
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September 11, 1998
Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to Credit Suisse First Boston
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Corporation (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 1998-8 (the "Class A Certificates") and of First USA Credit
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Card Master Trust $45,180,000 aggregate principal amount of Class B Floating
Rate Asset Backed Certificates, Series 1998-8 (the "Class B Certificates" and,
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together with the Class A Certificates, the "Certificates"). The Certificates
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will be issued pursuant to a Pooling and Servicing Agreement dated as of
September 1, 1992, as amended as of the date hereof (the "Master Pooling and
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Servicing Agreement"), as supplemented by the Series 1998-8 Supplement, dated as
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of the Closing Date (the "Supplement" and, together with the Master Pooling and
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Servicing Agreement, the "Pooling and Servicing Agreement"), each by and
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between the Bank, as transferor and servicer, and The Bank of New York
(Delaware), a Delaware banking corporation, as trustee (in such capacity, 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
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of the Trust will include, among other things, receivables (the "Receivables")
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arising under certain
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MasterCard(R) and VISA(R)(1) 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
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Bank. The Bank represents and warrants to, and agrees with, the
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Underwriter as follows:
(a) The Bank has filed with the Securities and
Exchange Commission (the "Commission"), on Form S-3, a registration statement
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(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 or will be
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, 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 Underwriter shall agree in writing to a modification, be
in all substantive respects in the form furnished to the Underwriter 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
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date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
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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
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(1) VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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Statement," and any prospectus supplement (the "Prospectus Supplement") relating
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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
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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".
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"Execution Time" shall mean the date and time that this Agreement is executed
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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
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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
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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.
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(d) The Bank is duly organized, validly existing and
in good standing as a national banking association under the laws of the United
States, and has full corporate 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"), between the Bank and
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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 1998-8 (in such capacity, the "Owner Trustee").
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(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 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
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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 trans actions 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 organizational documents 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,
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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.
(o) PricewaterhouseCoopers LLP who have audited
certain financial statements of Banc One Corporation are
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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 1998-8), plus (ii) 4% of
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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").
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2. Purchase, Sale, Payment and Delivery of Certificates. On
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the 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 17, 1998 or on such other date as shall be mutually agreed upon by
the Bank and the Underwriter (the "Closing Date"), $500,000,000 aggregate
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principal 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 99.70% 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 99.65% of
the principal amount thereof.
The closing of the sale of the Certificates (the "Closing")
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shall be 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.
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3. Offering by the Underwriter. (a) It is under stood that
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after the Effective Date the Underwriter proposes to offer the Certificates for
sale to the public as set forth in the Prospectus.
(b) The Underwriter may provide to prospective
investors the 1998-8 Term Sheet, dated September 8, 1998, relating to the
Certificates (the "1998-8 Term Sheet") prepared by the Bank and attached hereto
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as Exhibit A, subject to the following conditions:
(i) The Underwriter shall have complied with the
requirements of (A) the no-action letter, dated May 20, 1994, issued by
the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in
the response to the request of the Public Securities Association, dated
May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), (B) the
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requirements of the no-action letter, dated February 17, 1995, issued
by the Commission to the Public Securities Association (the "PSA
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Letter") and (C) the requirements of the no-action letter, dated April
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5, 1996, issued by the Commission to Greenwood Trust Company (the
"Greenwood Letter" and, together with the Xxxxxx/PSA Letter and the PSA
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Letter, the "No-Action Letters").
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(ii) The Underwriter represents and warrants to the
Bank that (a) it has not and will not use any information that
constitutes "Computational Materials" with respect to the offering of
the Certificates unless it has obtained the prior written consent of
the Bank to such usage and (b) other than the 1998-8 Term Sheet, it has
not and will not use any information that constitutes "Series Term
Sheets," "ABS Term Sheets," "Structural Term Sheets" or "Collateral
Term Sheets" with respect to the offering of the Certificates. For
purposes hereof, "Series Term Sheet" shall have the meaning given such
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term in the Greenwood Letter and "Computational Materials" shall have
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the meaning given such term in the No-Action Letters. For purposes
hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral
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Term Sheets" shall have the meanings given such terms in the PSA
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Letter.
4. Certain Agreements of the Bank. The Bank covenants and
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agrees with the Underwriter as follows:
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(a) Immediately following the execution of this
Agreement, the Bank will prepare a Prospectus Supplement setting 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 the Underwriter promptly of any such filing
pursuant to Rule 424(b).
(b) The Bank will advise the Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the Prospectus
and will not effect such amendment or supplement without the consent of the
Underwriter, which consent will not unreasonably be withheld; the Bank will also
advise the Underwriter 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 the Underwriter
promptly of any amendment or supplement to the Registration Statement or the
Prospectus 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
the Underwriter 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.
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(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 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 the Underwriter 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 the
Underwriter 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 the Underwriter (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
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Commission thereunder and (ii) from time to time, any other information
concerning the Bank filed with any government or regulatory authority which is
otherwise publicly available, as the Underwriter reasonably requests.
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(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.
(j) The Bank will file with the Commission a report
on Form 8-K with respect to the 1998-8 Term Sheet and a report on Form 8-K
setting forth all Computational Materials described in Section 3 hereof provided
to the Bank by the Underwriter and identified by the Underwriter as such within
the time period allotted for such filing pursuant to the No-Action Letters.
5. Payment of Expenses. The Bank will pay all expenses
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incident to the performance of its obligations under this Agreement, including
(i) the printing of the 1998-8 Term Sheet and any Computational Materials
described in Section 3 hereof, (ii) the printing of the Prospectus and of each
amendment or supplement thereto, (iii) the preparation of this Agreement, the
Transfer and Administration Agreement and the Pooling and Servicing Agreement,
(iv) the preparation, issuance and delivery of the Certificates to the
Underwriter, (v) the fees and disbursements of the Bank's counsel and
accountants, (vi) 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, (vii) the printing
and delivery to the Underwriter of copies of the 1998-8 Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing and
delivery to the Underwriter of copies of the Prospectus and of each amendment or
supplement thereto, (ix) the printing and delivery to the Underwriter of copies
of any blue sky or legal investment survey prepared in connection with the
Certificates, (x) any fees charged by rating agencies for the rating of the
Certificates, (xi) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and (xii) the
fees and expenses of the Trustee and its counsel. The Underwriter has agreed to
reimburse the Bank for expenses not to exceed $500,000 incurred by the Bank in
connection with the issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriter. The
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obligations of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the
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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 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 PricewaterhouseCoopers LLP, Certified Public Accountants,
substantially in the form of the drafts to which the Underwriter has previously
agreed and otherwise in form and substance satisfactory to the Underwriter and
its 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.
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(d) At the Closing Date, the Bank shall have
furnished to the Underwriter 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 the Underwriter may reasonably request.
(e) Xxxxxxx X. Xxxxxx, General Counsel of the Bank,
shall have furnished to the Underwriter his written opinion, addressed to the
Underwriter and dated the Closing Date, in form and substance satisfactory to
the Underwriter and its counsel, substantially to the effect that:
(i) The Bank has been duly organized and is
validly existing as a national banking association in good
standing under the laws of the United States with full power
and authority (corporate and other) to own its properties and
conduct its business, as presently owned and conducted by it,
and to enter into and perform its obligations under this
Agreement, the Transfer and Administration Agreement and the
Pooling and Servicing Agreement (collectively referred to in
this subsection (e) as the "Agreements"), and the Certificates
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and had at all times, and now has, the power, authority and
legal right to acquire, own and transfer the Receivables;
(ii) 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;
(iii) Each of the Pooling and Servicing
Agreement and the Transfer and Administration Agreement has
been duly authorized, executed and delivered by the Bank and
constitutes the legal, valid and binding
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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, receiver
ship, 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;
(iv) This Agreement has been duly authorized,
executed and delivered by the Bank;
(v) 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;
(vi) 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 organizational documents
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;
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(vii) 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
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;
(viii) 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 opinion) comply
as to form with the Act and the Rules and Regulations;
(ix) 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
(x) 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 his discussions with the Bank, its
accountants and others, however, no facts have come to its
attention that cause him 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 opinion), contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or
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necessary in order to make the statements therein not
misleading.
(f) The Underwriter shall have received a letter from
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the
effect that the Underwriter may rely on its opinion to Xxxxx'x Investors
Service, Inc. ("Moody's"), Standard & Poor's Ratings, a division of The
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XxXxxx-Xxxx Companies, Inc.("Standard & Poor's"), and Fitch IBCA, Inc. ("Fitch")
----------------- -----
with respect to certain bank regulatory matters.
(g) The Underwriter shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Bank, addressed
to the Underwriter, dated the Closing Date and satisfactory in form and
substance to the Underwriter and its counsel, to the effect that the
Certificates will be treated as indebtedness for Federal income tax purposes and
for Delaware income tax purposes.
(h) The Underwriter shall have received from Skadden,
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 Transfer and Administration 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 national banking associations
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
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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 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 Pooling and Servicing
Agreement and this Agreement conform in all material respects
to the descriptions thereof contained in the Prospectus;
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(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
(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
(if applicable) 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
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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.
(i) McGuire, Woods, Battle & Xxxxxx, L.L.P., counsel
for The Bank of New York, a New York banking corporation ("BONY"), in connection
----
with the 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 the Underwriter its written opinion, addressed to the Underwriter
and dated the Closing Date, in form and substance satisfactory to the
Underwriter and its 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;
(iv) The Supplement has been duly authorized,
executed and delivered by the Trustee, and the Pooling and
Servicing Agreement constitutes a legal, valid and binding
agreement of the Trustee, enforceable against the Trustee in
accordance with its 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
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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 against
the Trustee may be subject to the application of general
principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), and (z) that
certain remedial provisions of the Pooling and Servicing
Agreement may be unenforceable, in whole or in part against
the Trustee, 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 performance by the Trustee of its
obligations under the Pooling and Servicing 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 performance by the Trustee of its
obligations under the Pooling and Servicing 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.
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(j) Xxxxxxxx, Xxxxxx & Finger, counsel for First USA
Secured Note Trust 1998-8 (the "Owner Trust") in connection with the Transfer
and Administration Agreement and the Indenture dated as of the Closing Date,
between the Owner Trust and The Bank of New York, as indenture trustee, shall
have furnished to the Underwriter its written opinion, addressed to the
Underwriter and dated the Closing Date, in form and substance satisfactory to
the Underwriter and its counsel, substantially to the effect that:
(i) The Owner Trust is a business trust duly
formed, validly existing and in good standing under the laws
of the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the
Transfer and Administration Agreement and the Indenture;
(ii) The Transfer and Administration Agreement,
the Indenture and the secured notes issued by the Owner Trust
pursuant to the Indenture (the "Notes") have been duly
-----
authorized, executed and delivered by the Owner Trust, and the
Transfer and Administration Agreement, the Indenture and the
Notes constitute legal, valid and binding agreements of the
Owner Trust, enforceable against the Owner Trust 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 Owner
Trustee), (y) that the enforceability of the Transfer and
Administration Agreement, the Indenture and the Notes against
the Owner Trust may be subject to the application of general
principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), and (z) that
certain remedial provisions of the Transfer and Administration
Agreement and the Indenture may be unenforceable, in whole or
in part against the Owner Trust, but the inclusion of such
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provisions does not affect the validity of the Transfer and
Administration Agreement and the Indenture, taken as a whole,
and the Transfer and Administration 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;
(iii) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the
Indenture and the Notes and the performance by the Owner Trust
of its obligations under the Transfer and Administration
Agreement, the Indenture and the Notes do not conflict with or
result in a violation of (x) any law or regulation of the
State of Delaware applicable to the Owner Trust, or (y) the
Trust Agreement; and
(iv) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the
Indenture and the Notes and the performance by the Owner
Trustee of its obligations under the Transfer and
Administration Agreement, the Indenture and the Notes do not
require any approval, authorization or other action by, or
filing with, any governmental authority of the State of
Delaware having jurisdiction over the Owner Trust, except such
as have been obtained, taken or made.
(k) Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner
Trustee in connection with the Trust Agreement, dated as of September 15, 1998,
between the Bank and the Owner Trustee, shall have furnished to the Underwriter
its written opinion, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter and its counsel,
substantially to the effect that:
(i) The Owner Trustee is a banking corporation
duly organized, validly
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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 Trust Agreement;
(ii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee, and
the Trust Agreement constitutes a legal, valid and binding
agreement of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its 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 Owner Trustee), (y) that the enforceability of the
Trust Agreement against the Owner Trustee may be subject to
the application of general principles of equity (regardless of
whether considered or applied in a proceeding in equity or at
law), and (z) that certain remedial provisions of the Trust
Agreement may be unenforceable, in whole or in part against
the Owner Trustee, but the inclusion of such provisions does
not affect the validity of the Trust Agreement, taken as a
whole, and the Trust 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;
(iii) The execution and delivery by the Owner
Trustee of the Trust Agreement, and the performance by the
Owner Trustee of its obligations under the Trust 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
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activities of the Owner Trustee, or (y) the organizational
documents of the Owner Trustee; and
(iv) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the
Owner Trustee of its obligations under the Trust 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 Owner Trustee, except
such as have been obtained, taken or made.
(l) The Underwriter shall have received evidence
satisfactory to the Underwriter and its counsel that, on or before the Closing
Date, 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.
(m) The Class A Certificates shall be rated "AAA" by
Standard & Poor's, "Aaa" by Xxxxx'x and "AAA" by Fitch and the Class B
Certificates shall be rated at least "A" by Standard & Poor's, at least "A2" by
Xxxxx'x and at least "A+" by Fitch on the Closing Date, and letters to such
effect dated the Closing Date shall have been received from each Rating Agency.
(n) All proceedings in connection with the
transactions contemplated by this Agreement and all documents incident thereto
shall be satisfactory in form and substance to the Underwriter and its counsel,
and the Underwriter and its 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
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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 reimburse 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
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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 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,
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26
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
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 indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party
26
27
in connection with the defense thereof other than reasonable 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 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
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28
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 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
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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 the 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 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 Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxx, 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, Executive Vice President and General Counsel,
telephone: (000) 000-0000, telecopier: (000) 000-0000, with a copy to Banc One
Corporation, 000 Xxxx Xxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention:
Xxxxxxx Xxxxxx, Transaction Manager, Structured Finance, telephone: (614)
000-0000, telecopier: (000) 000-0000.
12. Secondary Trust or Special Purpose Vehicle. The
-------------------------------------------
Underwriter represents that it will not, at any time that the Underwriter is
acting as an "underwriter" (as defined in Section 2(11) of the Act) with respect
to the Certificates, transfer, deposit or otherwise convey any Certificates into
a trust or other type of special purpose vehicle that issues securities
29
30
or other instruments backed in whole or in part by, or that represents interests
in, such Certificates without the prior written consent of the Bank.
14. 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 the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
15. Severability of Provisions. Any covenant, provision,
---------------------------
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
16. 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.
17. 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.
18. Headings. The headings in this Agreement are for the
---------
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
19. Counterparts. This Agreement may be executed in
-------------
counterparts, each of which shall constitute an original, but all of which shall
together constitute one instrument.
20. 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.
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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, N.A.,
as Transferor and Servicer
By: /s/ XXXXXXX X. XXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
