EXHIBIT 1
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1997-9
Class B Floating Rate Asset Backed Certificates,
Series 1997-9
UNDERWRITING AGREEMENT
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October 1, 1997
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 Bear, Xxxxxxx & Co. Inc. (the
"Underwriter") of First USA Credit Card Master Trust $500,000,000 aggregate
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principal amount of Class A Floating Rate Asset Backed Certificates, Series
1997-9 (the "Class A Certificates") and $45,180,000 aggregate principal amount
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of Class B Floating Rate Asset Backed Certificates, Series 1997-9 (the "Class B
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Certificates" and together with the Class A Certificates, the "Certificates").
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The Certificates will be issued pursuant to a Pooling and Servicing Agreement,
dated as of September 1, 1992 (the "Master Pooling and Servicing Agreement"), as
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supplemented by the Series 1997-9 Supplement dated as of the Closing Date (the
"Supplement" and together with the Master Pooling and Servicing Agreement, the
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"Pooling and Servicing Agreement"), each by and between the Bank, as transferor
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and servicer, and The Bank of New York (Delaware) (the "Trustee").
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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* VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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
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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
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amendments thereto each of 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 Under writer 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, together
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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 hereinaf ter 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.
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(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 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
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Agreement, and the Certificates.
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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 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 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,
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the Spread Account Agreement, or the Pooling and Servicing Agree ment, 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, govern mental 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 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
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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 September 30, 1997,
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 principal
amount of all classes of all Series outstanding on September 30, 1997, plus (y)
the aggregate outstanding principal amount of all classes of all Series issued
after September 30, 1997 and that will be outstanding at the close of business
on the Closing Date (including Series 1997-9), 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
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within the meaning of the Investment Company Act of 1940, as amended (the "1940
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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
October 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 99.675%
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 99.600%
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 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
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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 proposal 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 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
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
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
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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.
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
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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 $147,590 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
Coopers & 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
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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 owned and conducted by it, and to enter
into and per form 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
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at all times, and now has, the power, author-
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ity 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 enforce ability 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;
(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;
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(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 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
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XXXXX attributes of the Certificates de scribed 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
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XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") with respect to certain
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matters 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.
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(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 public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and authenticated in
accordance with
15
the terms of the Pooling and Servicing Agree ment 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
(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
16
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 transfer of the Class A Certificates and/or
the Class B Certificates by the Underwriter into a trust or other type of
special purpose vehicle or the terms of the trust's or special purpose vehicle's
securities or the issuance or sale of the trust's or special purpose vehicle'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 Agency Agreement dated as of December 4, 1995 between BONY and the Trustee
(the "Agency Agreement"), and
----------------
17
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 Agree ment 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
equity or at law), and (z) that certain remedial provisions of the Pooling
and
18
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 Sec tion 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 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 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 al leged 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
amend ment thereof or supplement thereto, and agrees to xxxx xxxxx 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
indemnified 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 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
indemni fied 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
certifi cate 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 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 Bear, Xxxxxxx &
Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Asset Backed
Securities Department, or to such other address as you 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: (000) 000-0000, telecopier: (000) 000-0000, with
a copy to First USA Management Inc., 0000 Xxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx
00000, Attention: Xxxxxxx Xxxxxx, Officer, Securitization Department,
telephone: (000) 000-0000, telecopier: (000) 000-0000.
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.
14. Secondary Trust or Special Purpose Vehicle. The Underwriter
------------------------------------------
represents that it will not, at any time that such Underwriter is acting as an
"underwriter" (as defined in Section 2(11) of the Act) with respect to the Class
B Certificates, transfer, deposit or otherwise convey any Class B Certificates
into a trust or other type of special purpose vehicle
25
that issues securities or other instruments backed in whole or in part by, or
that represents interests in, such Class B Certificates without the prior
written consent of the Bank.
15. 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.
16. 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.
17. 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.
18. 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.
19. Headings. The headings in this Agreement are for the purposes of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
20. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which shall together
constitute one instrument.
21. 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.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
