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First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1998-5
Class B Floating Rate Asset Backed Certificates,
Series 1998-5
UNDERWRITING AGREEMENT
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August 18, 1998
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
as Representative of the
Underwriters set forth herein
World Financial Center, North Tower
New York, New York 10281-1315
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to Xxxxxxx Lynch, Pierce,
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Xxxxxx & Xxxxx Incorporated (the "Representative"), Banc One Capital Markets,
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Inc., Bear, Xxxxxxx & Co., Inc., First Chicago Capital Markets, Inc. and Xxxxxx
Brothers Inc, as underwriters (collectively with the Representative, the
"Underwriters" and each individually, an "Underwriter") of First USA Credit Card
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Master Trust $650,000,000 aggregate principal amount of Class A Floating Rate
Asset Backed Certificates, Series 1998-5 (the "Class A Certificates") and of
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First USA Credit Card Master Trust $58,735,000 aggregate principal amount of
Class B Floating Rate Asset Backed Certificates, Series 1998-5 (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, as amended as of the date hereof (the "Master
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Pooling and Servicing Agreement"), as supplemented by the Series 1998-5
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Supplement, dated as of the Closing Date (the "Supplement" and, together with
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the Master Pooling and Servicing Agreement, the "Pooling and Servicing
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Agreement"), each by and between the Bank, as transferor and servicer, and The
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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 of the Trust
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will include, among other things, receivables (the "Receivables") arising under
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certain 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 Bank. The Bank
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represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission
(the "Commission"), on Form S-3, a registration statement (Registration No.
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333-24227) pursuant to Rule 415 under the Securities Act of 1933, as amended
(such act, the "Act"). The Bank may have filed one or more amendments thereto
each of which amendments has previously been furnished to each of the
Underwriters. The Bank will also file with the Commission a prospectus
supplement in accordance with Rule 424(b) under the Act. As filed, the
registration statement, including any amendments thereto, the form of prospectus
supplement, and any prospectuses or prospectus supplements filed pursuant to
Rule 424(b) under the Act relating to the Certificates shall, except to the
extent that the Underwriters shall agree in writing to a modification, be in all
substantive respects in the form furnished to the Representative prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest preliminary prospectus supplement which has previously
been furnished to the Underwriters) as the Bank has advised the Underwriters,
prior to the Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
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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 (including any
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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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Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is
hereinafter referred to as the "Registration Statement," and any prospectus
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supplement (the "Prospectus Supplement") relating to the Certificates, as filed
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with the Commission pursuant to and in accordance with Rule 424(b) ("Rule
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424(b)") under the Act is, together with the prospectus filed as part of the
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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
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Prospectus"), hereinafter referred to as the "Prospectus". "Execution Time"
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shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first filed and
on the Closing Date, the Prospectus did or will, comply in all material respects
with the applicable requirements of the Act and the rules and regulations of the
Commission under the Act (the "Rules and Regulations"); on the Effective Date,
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the Registration Statement did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus did not or will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Bank makes no representation or warranty
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as to the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished in
writing to the Bank by the Underwriters specifically for use in connection with
preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank and (ii) the Bank has not entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Bank that, in either case, would reasonably be expected to
materially adversely affect the interests of the
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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 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 1998-5 (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 Underwriters as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. As of the Closing Date, the
Certificates will have been duly and validly executed by the Bank, and will
conform in all material respects to the descriptions thereof contained in the
Prospectus.
(h) The Transfer and Administration Agreement has been duly
authorized, and, when executed and delivered by the Bank and assuming the due
authorization, execution and delivery
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thereof by the other parties thereto, will constitute a valid and binding
obligation of the Bank enforceable against the Bank in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency and similar
laws affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law). As of the Closing Date, the Transfer and
Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee
pursuant to the Pooling and Servicing Agreement will conform in all material
respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the
issuance, sale and delivery of the Certificates, nor the execution or delivery
of this Agreement, the Transfer and Administration Agreement or the Pooling and
Servicing Agreement, nor the consummation of any of the transactions herein or
therein contemplated, nor the fulfillment of the terms of the Certificates, the
Pooling and Servicing Agreement, the Transfer and Administration Agreement or
this Agreement, will result in the breach of any term or provision of the
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, 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
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
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material adverse effect on (x) the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank or (y) the ability of the Bank to
perform its obligations under this Agreement, the Transfer and Administration
Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii) assert
the invalidity of this Agreement, the Transfer and Administration Agreement, the
Pooling and Servicing Agreement, or the Certificates, (iii) seek to prevent the
issuance, sale or delivery of the Certificates or any of the transactions
contemplated by this Agreement, the Transfer and Administration Agreement or the
Pooling and Servicing Agreement or (iv) seek to affect adversely the federal
income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or
documentary stamp tax, the non-payment of which would result in the imposition
of a Lien on the Receivables or of transferee liability on the Trustee, is
imposed with respect to the conveyance of the Receivables from the Bank to the
Trust, or in connection with the issuance of the Certificates by the Trust, or
the holding of the Receivables by the Trust, or in connection with any of the
other transactions contemplated by this Agreement, the Transfer and
Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees
and other governmental charges in connection with the execution, delivery and
issuance of the Certificates or the execution and delivery of this Agreement,
the Transfer and Administration Agreement or the Pooling and Servicing Agreement
have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of
the Bank in the Pooling and Servicing Agreement, with regard to itself as both
transferor and servicer and the Receivables (individually and in the aggregate),
will be true and correct.
(n) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by the Bank of or compliance by the
Bank with this Agreement, the Transfer and Administration Agreement, the Pooling
and Servicing Agreement, or the Certificates or the consummation of the
transactions contemplated hereby or thereby except the filing of Uniform
Commercial Code financing statements with respect to the Receivables.
(o) PricewaterhouseCoopers LLP who have audited certain financial
statements of the 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 1998-5), plus (ii) 4% of the amount stated in
clause (i).
(q) The Trust is not, and will not be as a result of the issuance
and sale of the Certificates, an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
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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 Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Bank, on August 27, 1998 or on such other date as shall be
mutually agreed upon by the Bank and the Underwriters (the "Closing Date"),
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$650,000,000 aggregate principal amount of Class A Certificates and $58,735,000
aggregate principal amount of Class B Certificates. The Class A Certificates
being purchased by the Underwriters hereunder are to be purchased at a purchase
price equal to 99.725% of the principal amount thereof. The Class B Certificates
being purchased by the Underwriters hereunder are to be purchased at a purchase
price equal to 99.675% 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 Underwriters. (a) It is understood that after the
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Effective Date the Underwriters propose to offer
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the Certificates for sale to the public as set forth in the Prospectus.
(b) Each Underwriter may provide to prospective investors the 1998-5
Term Sheet, dated August 17, 1998, relating to the Certificates (the "1998-5
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Term Sheet") prepared by the Bank and attached hereto as Exhibit A, subject to
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the following conditions:
(i) Such 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, Xxxxxxx
& 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 requirements
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of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter") and
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(C) the requirements of the no-action letter, dated April 5, 1996,
issued by the Commission to Greenwood Trust Company (the "Greenwood
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Letter" and, together with the Xxxxxx/PSA Letter and the PSA Letter, the
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"No-Action Letters").
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(ii) Each Underwriter, severally, 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 1998-5 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 term in the
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Greenwood Letter and "Computational Materials" shall have the meaning
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given such term in the No-Action Letters. For purposes hereof, "ABS Term
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Sheets," "Structural Term Sheets" and "Collateral Term Sheets" shall
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have the meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and agrees with
the several Underwriters 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
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price at which such Certificates are to be purchased by the Underwriters, 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
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Bank will advise the Representative 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 Representative,
which consent will not unreasonably be withheld; the Bank will also advise the
Representative 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 Representative 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
Representative 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 Underwriters 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
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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 Underwriters 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 Underwriters request.
(f) The Bank will promptly, from time to time, take such action as
any Underwriter may reasonably request to qualify the Certificates for offering
and sale under the securities laws of such jurisdictions as such 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 Representative 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 Representative (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)
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from time to time, any other information concerning the Bank filed with any
government or regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
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(j) The Bank will file with the Commission a report on Form 8-K with
respect to the 1998-5 Term Sheet and a report on Form 8-K setting forth all
Computational Materials described in Section 3 hereof provided to the Bank by
any of the Underwriters and identified by such 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 incident to the
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performance of its obligations under this Agreement, including (i) the printing
of the 1998-5 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 Underwriters, (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 Underwriters and in connection with the
preparation of any blue sky and legal investment survey, (vii) the printing and
delivery to the Underwriters of copies of the 1998-5 Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing and
delivery to the Underwriters of copies of the Prospectus and of each amendment
or supplement thereto, (ix) the printing and delivery to the Underwriters 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 Underwriters have agreed
to reimburse the Bank for expenses not to exceed $191,868 incurred by the Bank
in connection with the issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriters. The obligations
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of the several Underwriters 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 accor-
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dance 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 Underwriters 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 Representative has previously agreed and
otherwise in form and substance satisfactory to the Representative 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 Representative, 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
Representative, 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 the
Representative 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
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Date, and as to such other matters as the Representative may reasonably request.
(e) Xxxxxx Xxxxxxxx, Associate General Counsel of the Bank, shall
have furnished to the Representative her written opinion, addressed to the
Representative and dated the Closing Date, in form and substance satisfactory to
the Representative 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 Underwriters 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
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,
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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) The Trust is not now, and immediately following the sale of
the Certificates pursuant to the Underwriting Agreement will not be,
required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution, de livery
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 Underwriters and the filing
of Uniform Commercial Code Financing statements with respect to the
Receivables;
(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 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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(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 ERISA
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) there under; 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.
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(f) The Representative shall have received a letter from Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the effect
that the Representative may rely on its opinion to Xxxxx'x Investors Service,
Inc. ("Moody's") Standard & Poor's Ratings, a division of The XxXxxx-Xxxx
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Companies, Inc.("Standard & Poor's"), and Fitch IBCA, Inc. ("Fitch") with
----------------- -----
respect to certain bank regulatory matters.
(g) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Bank, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative 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 Representative shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, 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 may be unenforceable in whole or in part, but
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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 Underwriters 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;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of
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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 and the Underwriters
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
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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
----------------
Representative its written opinion, addressed to the Representative and dated
the Closing Date, in form and substance satisfactory to the Representative 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 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
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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.
(j) Xxxxxxxx, Xxxxxx & Xxxxxx, counsel for the Owner Trust in
connection with the Transfer and Administration Agreement and the Indenture,
shall have furnished to the Representative its written opinion, addressed to
the Representative and dated the Closing Date, in form and substance
satisfactory to the
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Representative 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 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
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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 & Xxxxxx, counsel for the Owner Trustee in
connection with the Trust Agreement, shall have furnished to the Representative
its written opinion, addressed to the Representative and dated the Closing Date,
in form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) The Owner 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 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
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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 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
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jurisdiction over the banking or trust activities of the Owner Trustee,
except such as have been obtained, taken or made.
(l) The Representative shall have received evidence satisfactory to
the Representative and its 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.
(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 Representative and its counsel, and the Representative
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 each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act and under Section 20 of the Exchange Act against any and
all losses, claims, damages or liabilities to which they may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or in any revision or amendment thereof or supplement thereto or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with
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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
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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 any 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 any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Certificates, or any person controlling
such 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 such 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 such
Underwriter in writing such defect prior to the delivery of such written
confirmation by such Underwriter to such person.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Bank, its directors, each of the Bank's officers who
signed the Registration Statement and each person, if any, who controls the Bank
within the meaning of Section 15 of the Act and under Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities to which they may
become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or in any revision or amendment thereof or supplement
thereto or any related preliminary prospectus or prospectus supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission
25
26
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Bank by such 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 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
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(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 respective 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 respective 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 respective 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 such 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 any 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), each 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
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) 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)
27
28
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 Underwriters 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 each Underwriter and, in the case of
the Underwriters, by the Bank, notwithstanding any investigation heretofore or
hereafter made by or on behalf of the Bank or the Underwriters, and that the
respective representations, warranties and agreements (including without
limitation the indemnity and contribution agreement) made by the Bank and the
Underwriters 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 Underwriters 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. Default by One or More of the Underwriters. If one or more of the
------------------------------------------
Underwriters shall fail on the Closing Date to purchase the Certificates which
it or they are obligated to purchase under this Agreement (the "Defaulted
---------
Securities"), the lead Under writer shall have the right, within 24 hours
----------
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriter, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the applicable class of Certificates, each
of the non-defaulting Underwriters of such class of Certificates shall be
obligated to pur-
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29
chase the full amount thereof in the proportions that their respective
underwriting obligations hereunder with respect to such class of
Certificates bear to the underwriting obligations of all non-defaulting
Underwriters of such class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the applicable class of Certificates, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Bank shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
11. Representation of the Underwriters. Each of the Underwriters
----------------------------------
represents and warrants to, and agrees with, the Bank that (w) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or who is
a person to whom the document may otherwise lawfully be issued or passed on, (x)
it has complied and shall comply with all applicable provisions of the Financial
Services Act 1986 and other applicable laws and regulations with respect to
anything done by it in relation to the Certificates in, from or otherwise
involving the United Kingdom and (y) if that Underwriter is an authorized person
under the Financial Services Act 1986, it has only promoted and shall only
promote (as that term is defined in Regulation 1.02 of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991) to any person in the United
Kingdom the scheme described in the Prospectus if that person is of a kind
described either in Section 76(2) of the Financial Services Act 1986 or
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30
in Regulation 1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
12. Notices. All communications provided for or permitted hereunder
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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
Underwriters, addressed to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
World Financial Center, North Tower, New York, New York 10281-1315, Attention:
Secretary, or to such other address as the Representative 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: (302)
884-8361, with a copy to Banc One Corporation, 000 Xxxx Xxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Transaction Manager, Structured
Finance, telephone: (000) 000-0000, telecopier: (000) 000-0000.
13. Secondary Trust or Special Purpose Vehicle. Each Underwriter
------------------------------------------
severally 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 Certificates, transfer, deposit or otherwise convey any Certificates into
a trust or other type of special purpose vehicle that issues securities 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
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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
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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.
31
32
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.
-----------------------------
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
for itself and as Representative
of the Underwriters named in
Schedule A hereto
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
33
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated ............................. $130,000,000
Banc One Capital Markets, Inc. ................... 130,000,000
Bear, Xxxxxxx & Co., Inc. ........................ 130,000,000
First Chicago Capital
Markets, Inc. ................................. 130,000,000
Xxxxxx Brothers Inc. ............................. 130,000,000
------------
Total .......................... $650,000,000
============
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated ............................. $11,747,000
Banc One Capital Markets, Inc. ................... 11,747,000
Bear, Xxxxxxx & Co., Inc. ........................ 11,747,000
First Chicago Capital
Markets, Inc. ................................. 11,747,000
Xxxxxx Brothers Inc. ............................. 11,747,000
-----------
Total .......................... $58,735,000
===========
