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Exhibit 1.1
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1998-4
Class B Floating Rate Asset Backed Certificates,
Series 1998-4
UNDERWRITING AGREEMENT
July 16, 1998
Salomon Brothers Inc
Seven World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to Salomon Brothers Inc (the
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"Underwriter") of First USA Credit Card Master Trust $700,000,000 aggregate
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principal amount of Class A Floating Rate Asset Backed Certificates, Series
1998-4 (the "Class A Certificates") and of First USA Credit Card Master Trust
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$63,253,000 aggregate principal amount of Class B Floating Rate Asset Backed
Certificates, Series 1998-4 (the "Class B Certificates" and, together with the
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Class A Certificates, the "Certificates"). The Certificates will be issued
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pursuant to a Pooling and Servicing Agreement dated as of September 1, 1992, as
amended as of the date hereof (the "Master Pooling and Servicing Agreement"), as
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supplemented by the Series 1998-4 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), a Delaware banking
corporation, as trustee (in such capacity, the "Trustee").
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Each Certificate will represent an undivided interest in
certain assets of First USA Credit Card Master Trust (the "Trust"). The property
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of the Trust will include, among other things, receivables (the "Receivables")
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arising under certain 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.
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The Bank 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. 33324227) 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 the
Underwriter. The Bank will also file with the Commission a prospectus supplement
in accordance with Rule 424(b) under the Act. As filed, the registration
statement, including any amendments thereto, the form of prospectus supplement,
and any prospectuses or prospectus supplements filed pursuant to Rule 424(b)
under the Act relating to the Certificates shall, except to the extent that the
Underwriter shall agree in writing to a modification, be in all substantive
respects in the form furnished to the Underwriter prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary prospectus supplement which has previously been furnished to
the Underwriter) as the Bank has advised the Underwriter, prior to the Execution
Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the
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date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
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registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein (including
any Computational Materials, ABS Term Sheets, Structural Term Sheets and
Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K),
is hereinafter referred to as the "Registration Statement," and any prospectus
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supplement (the "Prospectus
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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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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 hereinafter referred to as the "Basic Prospectus"), hereinafter referred
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to as the "Prospectus". "Execution Time" shall mean the date and time that this
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Agreement is executed and delivered by the parties hereto.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus was
first filed and on the Closing Date, the Prospectus did or will, comply in all
material respects with the applicable requirements of the Act and the rules and
regulations of the Commission under the Act (the "Rules and Regulations"); on
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the Effective Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus did not or will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Bank makes no representation
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or warranty as to the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Bank by the Underwriter specifically for use in
connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has not been
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank and (ii) the Bank has not entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Bank that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Certificates,
otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in
good standing as a national banking association under the
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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
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Agreement"), between the Bank and Bankers Trust (Delaware), a Delaware banking
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corporation, not in its individual capacity but solely as Owner Trustee on
behalf of the First USA Secured Note Trust 1998-4 (in such capacity, the "Owner
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Trustee").
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(e) This Agreement has been duly authorized and validly
executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly
authorized and, when executed and delivered by the Bank and assuming the due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and binding obligation of the Bank enforceable against the Bank in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Pooling and Servicing Agreement will have been duly and validly
executed by the Bank and will conform in all material respects to the
description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized
by all required action of the Bank, and, when duly and validly executed by the
Bank, authenticated by the Trustee and delivered in accordance with the Pooling
and Servicing Agreement, and delivered to and paid for by the Underwriter as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. As of the Closing Date, the
Certificates will have been duly and validly executed by the Bank, and will
conform in all material respects to the descriptions thereof contained in the
Prospectus.
(h) The Transfer and Administration Agreement has been
duly authorized, and, when executed and delivered by the Bank and assuming the
due authorization, execution and delivery thereof by the other parties thereto,
will constitute a valid and binding obligation of the Bank enforceable against
the Bank in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
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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 bylaws of the Bank, or
conflict with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other agreement or instrument to
which the Bank is a party or by which it or its properties is bound or may be
affected or any statute, order or regulation applicable to the Bank of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Bank or will result in the creation of any Lien
upon any property or assets of the Bank (other than as contemplated in the
Pooling and Servicing Agreement). The Bank is not a party to, bound by, or in
breach or violation of, any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over it, that materially and adversely affects the ability of the
Bank to perform its obligations under this Agreement, the Pooling and Servicing
Agreement, the Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits,
claims or proceedings before or by any court, regulatory body, administrative
agency, governmental body or arbitrator now pending or, to the best knowledge of
the Bank, threatened that, separately or in the aggregate (i) could have a
material adverse effect on (x) the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank or (y) the ability of the Bank to
perform its obligations under this Agreement, the Transfer and Administration
Agreement, the
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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 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
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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
1998-4), plus (ii) 7% of the amount stated in clause (i).
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(q) The Trust is not, and will not be as a result of the
issuance and sale of the Certificates, an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
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2. Purchase, Sale, Payment and Delivery of Certificates. On
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the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Bank agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Bank,
on July 22, 1998 or on such other date as shall be mutually agreed upon by the
Bank and the Underwriter (the "Closing Date"), $700,000,000 aggregate principal
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amount of Class A Certificates and $63,253,000 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 99.650%
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")
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shall be held at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on
the Closing Date. Payment of the purchase price for the Certificates being sold
and purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
3. Offering by the Underwriter. (a) It is understood that
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after the Effective Date the Underwriter proposes to offer the Certificates for
sale to the public as set forth in the Prospectus.
(b) The Underwriter may provide to prospective investors
the 1998-4 Term Sheet, dated July 14, 1998,
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relating to the Certificates (the "1998-4 Term Sheet") prepared by the Bank and
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attached hereto as Exhibit A, subject to the following conditions:
(i) The Underwriter shall have complied with the
requirements of (A) the no-action letter, dated May 20, 1994, issued
by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in
the response to the request of the Public Securities Association,
dated May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), (B) the
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requirements of the no-action letter, dated February 17, 1995, issued
by the Commission to the Public Securities Association (the "PSA
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Letter") and (C) the requirements of the no-action letter, dated April
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5, 1996, issued by the Commission to Greenwood Trust Company (the
"Greenwood Letter" and, together with the Xxxxxx/PSA Letter and the
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PSA Letter, the "No-Action Letters").
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(ii) The Underwriter represents and warrants to the Bank
that (a) it has not and will not use any information that constitutes
"Computational Materials" with respect to the offering of the
Certificates unless it has obtained the prior written consent of the
Bank to such usage and (b) other than the 1998-4 Term Sheet, it has
not and will not use any information that constitutes "Series Term
Sheets," "ABS Term Sheets," "Structural Term Sheets" or "Collateral
Term Sheets" with respect to the offering of the Certificates. For
purposes hereof, "Series Term Sheet" shall have the meaning given such
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term in the Greenwood Letter and "Computational Materials" shall have
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the meaning given such term in the No-Action Letters. For purposes
hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral
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Term Sheets" shall have the meanings given such terms in the PSA
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Letter.
4. Certain Agreements of the Bank. The Bank covenants and
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agrees with the Underwriter as follows:
(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 the
Underwriter promptly of any such filing pursuant to Rule 424(b).
(b) The Bank will advise the Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
Underwriter, which consent will not unreasonably be withheld; the Bank will also
advise the Underwriter promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Bank will also advise the Underwriter
promptly of any amendment or supplement to the Registration Statement or the
Prospectus and of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and the Bank will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the Bank promptly will advise
the Underwriter thereof and will prepare and file, or cause to be prepared and
filed, with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect such
compliance. Any such filing shall not operate as a waiver or limitation on any
condition or right of the Underwriter hereunder.
(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
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and will include all exhibits), each related preliminary prospectus or
prospectus supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriter requests.
(f) The Bank will promptly, from time to time, take such
action as the Underwriter may reasonably request to qualify the Certificates for
offering and sale under the securities laws of such jurisdictions as the
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Certificates, provided that
in connection therewith the Bank shall not be required to qualify as a foreign
corporation or dealer in securities or to file a general consent to service of
process in any jurisdiction.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank will deliver to the Underwriter the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding,
the Bank will furnish to the Underwriter (i) as soon as practicable after the
end of the fiscal year all documents required to be distributed to
Certificateholders or filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the
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Commission thereunder and (ii) from time to time, any other information
concerning the Bank filed with any government or regulatory authority which is
otherwise publicly available, as the Underwriter reasonably requests.
(i) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that initially rate
the Certificates is conditional upon the furnishing of documents or the taking
of any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
(j) The Bank will file with the Commission a report on
Form 8-K with respect to the 1998-4 Term Sheet and a report on Form 8-K setting
forth all Computational Materials described in Section 3 hereof provided to the
Bank by the Underwriter and identified by the Underwriter as within the time
period allotted for such filing pursuant to the No-Action Letters.
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5. Payment of Expenses. The Bank will pay all expenses
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incident to the performance of its obligations under this Agreement, including
(i) the printing of the 1998-4 Term Sheet and any Computational Materials
described in Section 3 hereof, (ii) the printing of the Prospectus and of each
amendment or supplement thereto, (iii) the preparation of this Agreement, the
Transfer and Administration Agreement and the Pooling and Servicing Agreement,
(iv) the preparation, issuance and delivery of the Certificates to the
Underwriter, (v) the fees and disbursements of the Bank's counsel and
accountants, (vi) the qualification of the Certificates under securities laws in
accordance with the provisions of Section 4(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriter and in connection with
the preparation of any blue sky and legal investment survey, (vii) the printing
and delivery to the Underwriter of copies of the 1998-4 Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing and
delivery to the Underwriter of copies of the Prospectus and of each amendment or
supplement thereto, (ix) the printing and delivery to the Underwriter of copies
of any blue sky or legal investment survey prepared in connection with the
Certificates, (x) any fees charged by rating agencies for the rating of the
Certificates, (xi) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and (xii) the
fees and expenses of the Trustee and its counsel. The Underwriter has agreed to
reimburse the Bank for expenses not to exceed $710,000 incurred by the Bank in
connection with the issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriter. The
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obligations of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Bank herein, to the accuracy of the statements of officers of the Bank made
pursuant to the provisions hereof, to the performance by the Bank of its
obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have
been filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 1 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Bank, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
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(b) On or prior to the date of the Prospectus and on or
prior to the Closing Date, the Underwriter shall have received a letter or
letters, dated as of the date of the Prospectus and as of the Closing Date,
respectively, of PricewaterhouseCoopers LLP, Certified Public Accountants,
substantially in the form of the drafts to which the Underwriter has previously
agreed and otherwise in form and substance satisfactory to the Underwriter and
its counsel.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, or the Bank which, in the judgment of the Underwriter,
materially impairs the investment quality of the Certificates or makes it
impractical or inadvisable to market the Certificates; (ii) any suspension or
limitation on trading in securities generally on the New York Stock Exchange or
the National Association of Securities Dealers National Market system, or any
setting of minimum prices for trading on such exchange or market system; (iii)
any suspension of trading of any securities of BANC ONE CORPORATION on any
exchange or in the over-the-counter market which materially impairs the
investment quality of the Certificates or makes it impractical or inadvisable to
market the Certificates; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) any outbreak or escalation of major
hostilities or armed conflict, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriter, the effect of any such outbreak, escalation, declaration,
calamity, or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to
the Underwriter certificates of a vice president or more senior officer of the
Bank as to the accuracy of the representations and warranties of the Bank herein
at and as of the Closing Date, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to such Closing Date, and as
to such other matters as the Underwriter may reasonably request.
(e) Xxxxxx Xxxxxxxx, Associate General Counsel of the
Bank, shall have furnished to the Underwriter her written opinion, addressed to
the Underwriter and dated the Closing Date, in form and substance satisfactory
to the Underwriter and its counsel, substantially to the effect that:
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(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
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Certificates and had at all times, and now has, the power, authority
and legal right to acquire, own and transfer the Receivables;
(ii) The Certificates have been duly authorized,
executed and delivered by the Bank and, when duly authenticated by the
Trustee in accordance with the terms of the Pooling and Servicing
Agreement and delivered to and paid for by the Underwriter in
accordance with the terms of this Agreement, will be validly issued
and outstanding and entitled to the benefits provided by the Pooling
and Servicing Agreement;
(iii) Each of the Pooling and Servicing Agreement and
the Transfer and Administration Agreement has been duly authorized,
executed and delivered by the Bank and constitutes the legal, valid
and binding agreement of the Bank enforceable against the Bank in
accordance with its terms, subject, as to enforceability, to (A) the
effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally, and (B) the
application of principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law) and the rights and
powers of the FDIC;
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(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,
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;
(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 bylaws
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
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effect on the ability of the Bank to perform its obligations under the
Agreements or the Certificates, (B) assert the invalidity of the
Agreements or the Certificates, (C) seek to prevent the issuance, sale
or delivery of the Certificates or any of the transactions
contemplated by the Agreements or (D) seek to affect adversely the
federal income tax or ERISA attributes of the Certificates described
in the Prospectus;
(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) The Underwriter shall have received a letter from
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the
effect that the Underwriter may rely on its opinion to Xxxxx'x Investors
Service, Inc. ("Moody's") Standard & Poor's Ratings, a
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division of The McGrawHill Companies, Inc.("Standard & Poor's"), and Fitch IBCA,
-----------------
Inc. with respect to certain bank regulatory matters.
(g) The Underwriter shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Bank, addressed
to the Underwriter, dated the Closing Date and satisfactory in form and
substance to the Underwriter and its counsel, to the effect that the
Certificates will be treated as indebtedness for Federal income tax purposes and
for Delaware income tax purposes.
(h) The Underwriter shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, such opinion or
opinions, dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement and
the Transfer and Administration Agreement (collectively referred to in
this subsection (h) as the "Agreements") constitutes the valid and
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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 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;
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(ii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the Underwriter
pursuant to this Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement;
(iii) This Agreement has been duly authorized,
executed and delivered by the Bank;
(iv) Neither the execution, delivery or performance
by the Bank of the Agreements or this Agreement, nor the compliance by
the Bank with the terms and provisions thereof or hereof, will
contravene any provision of any applicable law;
(v) Based on such counsel's review of applicable
laws, no governmental approval, which has not been obtained or taken
and is not in full force and effect, is required to authorize or is
required in connection with the execution, delivery or performance of
the Agreements by the Bank;
(vi) The Certificates, the Pooling and Servicing
Agreement and this Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus;
(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
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(ix) Each of the Registration Statement, as of its
effective date, and the Prospectus, as of its date, appeared on its
face to be appropriately responsive in all material respects to the
requirements of the Act and the General Rules and Regulations under
the Act, except that in each case such counsel expresses no opinion as
to the financial data included therein or excluded therefrom or the
exhibits to the Registration Statement, and such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and the
Prospectus.
Such opinion shall also state that such counsel has
participated in conferences with officers and representatives of the Bank,
counsel for the Bank, representatives of the independent accountants of the Bank
and the Underwriter at which the contents of the Prospectus and related matters
were discussed and, although such counsel need not pass upon, and need not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and shall have made no independent check
or verification thereof, except for those made under the caption "Certain Legal
Aspects of the Receivables" to the extent set forth in paragraph (viii) above,
on the basis of the foregoing, no facts shall have come to such counsel's
attention that shall have led such counsel to believe that the Prospectus, as of
its date, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that such
counsel need not express an opinion or belief with respect to the financial
statements, schedules and other financial information included in such
Prospectus or excluded therefrom.
(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
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counsel for the Trustee, shall have furnished to the Underwriter its written
opinion, addressed to the Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel, substantially to the
effect that:
(i) BONY is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and has the corporate power and authority to execute, deliver
and perform its obligations under the Agency Agreement;
(ii) The Certificates have been duly authenticated by
BONY pursuant to the Agency Agreement and in accordance with the
Pooling and Servicing Agreement;
(iii) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement;
(iv) The Supplement has been duly authorized,
executed and delivered by the Trustee, and the Pooling and Servicing
Agreement constitutes a legal, valid and binding agreement of the
Trustee, enforceable against the Trustee in accordance with its terms,
except (x) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally (as such laws would apply
in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect to, the
Trustee), (y) that the enforceability of the Pooling and Servicing
Agreement against the Trustee may be subject to the application of
general principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), and (z) that certain
remedial provisions of the Pooling and Servicing Agreement may be
unenforceable, in whole or in part against the Trustee, but the
inclusion of such provisions
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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 bylaws 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 Underwriter its written opinion, addressed to the
Underwriter and dated the Closing Date, in form and substance satisfactory to
the Underwriter and its counsel, substantially to the effect that:
(i) The Owner Trust is a business trust duly formed,
validly existing and in good standing under the laws of the State of
Delaware and has the power and authority to execute, deliver and
perform its obligations under the Transfer and Administration
Agreement and the Indenture;
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(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
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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 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
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Trust of its obligations under the Transfer and Administration
Agreement, the Indenture and the Notes do not conflict with or result
in a violation of (x) any law or regulation of the State of Delaware
applicable to the Owner Trust, or (y) the Trust Agreement; and
(iv) The execution and delivery by the Owner Trust of
the Transfer and Administration Agreement, the Indenture and the Notes
and the performance by the Owner Trustee of its obligations under the
Transfer and Administration Agreement, the Indenture and the Notes do
not require any approval, authorization or other action by, or filing
with, any governmental authority of the State of Delaware having
jurisdiction over the Owner Trust, except such as have been obtained,
taken or made.
(k) Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner
Trustee in connection with the Trust Agreement, shall have furnished to the
Underwriter its written opinion, addressed to the Underwriter and dated the
Closing Date, in form and substance satisfactory to the Underwriter and its
counsel, substantially to the effect that:
(i) The Owner Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to
execute, deliver and perform its obligations under the Trust
Agreement;
(ii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee, and the Trust Agreement
constitutes a legal, valid and binding agreement of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its terms,
except (x) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally (as such laws would apply
in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence
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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 jurisdiction over the banking or trust activities of the Owner
Trustee, except such as have been obtained, taken or made.
(l) The Underwriter shall have received evidence
satisfactory to the Underwriter and its counsel that, on or before the Closing
Date, UCC-1 financing statements have been filed in the appropriate filing
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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 IBCA, Inc. ("Fitch") and
the Class B Certificates shall be rated at least "A" by Standard & Poor's, at
least "A+" by Xxxxx'x and at least "A+" by Fitch on the Closing Date, and
letters to such effect dated the Closing Date shall have been received from each
Rating Agency.
(n) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident thereto shall be
satisfactory in form and substance to the Underwriter and its counsel, and the
Underwriter and its counsel shall have received such information, certificates
and documents as any of them may reasonably request.
7. Indemnification and Contribution.
---------------------------------
(a) The Bank agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act and under Section 20 of the Exchange Act
against any and all losses, claims, damages or 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
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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
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conformity with written information furnished to the Bank by the Underwriter
specifically for use therein or any revision or amendment thereof or supplement
thereto. The foregoing indemnification with respect to any untrue statement or
omission in any preliminary prospectus or prospectus supplement shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Bank shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Certificates to such person and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability provided that the Bank shall have identified to the
Underwriter in writing such defect prior to the delivery of such written
confirmation by the Underwriter to such person.
(b) The Underwriter agrees to indemnify and hold harmless
the Bank, its directors, each of the Bank's officers who signed the Registration
Statement and each person, if any, who controls the Bank within the meaning of
Section 15 of the Act and under Section 20 of the Exchange Act against any and
all losses, claims, damages or liabilities to which they may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or in any revision or amendment thereof or supplement thereto or any
related preliminary prospectus or prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Bank by the Underwriter specifically for use therein or any revision or
amendment thereof or supplement thereto, and agrees to reimburse such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage or
liability or action as such expenses are incurred.
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(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 (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
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Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Bank on the one hand and of the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one hand and
the Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Bank bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Bank or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Certificates purchased by
it hereunder. The Bank and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of any of the equitable considerations referred to above in this subsection (d).
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Survival. The Bank and the Underwriter agree that the
---------
respective representations, warranties and agreements made by them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed to
be relied upon, in the case of the Bank, by
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the Underwriter and, in the case of the Underwriter, by the Bank,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of the Bank or the Underwriter, and that the respective representations,
warranties and agreements (including without limitation the indemnity and
contribution agreement) made by the Bank and the Underwriter herein or in any
such certificate or other instrument shall survive the delivery of and payment
for the Certificates.
9. Termination. This Agreement may be terminated in the sole
------------
discretion of the Underwriter by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 9 shall be without liability of any party to
any other party except as provided in Sections 5 and 7 hereof.
10. Representation of the Underwriter. The Underwriter
----------------------------------
represents and warrants to, and agrees with, the Bank that (w) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or who is
a person to whom the document may otherwise lawfully be issued or passed on, (x)
it has complied and shall comply with all applicable provisions of the Financial
Services Act 1986 and other applicable laws and regulations with respect to
anything done by it in relation to the Certificates in, from or otherwise
involving the United Kingdom and (y) if the Underwriter is an authorized person
under the Financial Services Act 1986, it has only promoted and shall only
promote (as that term is defined in Regulation 1.02 of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991) to any person in the United
Kingdom the scheme described in the Prospectus if that person is of a kind
described either in Section 76(2) of the Financial Services Act 1986 or in
Regulation 1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
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11. Notices. All communications provided for or permitted
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hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered, sent by overnight courier or mailed by registered mail,
postage prepaid and return receipt requested, or transmitted by telex, telegraph
or telecopier and confirmed by a similar mailed writing, if to (a) the
Underwriter, addressed to Salomon Brothers Inc, Seven World Trade Center, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Trading Syndicate, or to such
other address as the Underwriter may designate in writing to the Bank or (b) the
Bank, addressed to the Bank at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxx, Executive Vice President and General
Counsel, telephone: (000) 000-0000, telecopier: (000) 000-0000, with a copy to
Banc One Corporation, 000 Xxxx Xxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000,
Attention: Xxxxxxx Xxxxxx, Transaction Manager, Structured Finance, telephone:
(000) 000-0000, telecopier: (000) 000-0000.
12. Secondary Trust or Special Purpose Vehicle. The
-------------------------------------------
Underwriter represents that it will not, at any time that the Underwriter is
acting as an "underwriter" (as defined in Section 2(11) of the Act) with respect
to the Certificates, transfer, deposit or otherwise convey any Certificates into
a trust or other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interests in, such
Certificates without the prior written consent of the Bank.
14. Successors. This Agreement shall inure to the benefit of
-----------
and be binding upon the parties hereto and their respective successors and
assigns. Nothing expressed herein is intended or shall be construed to give any
person other than the persons referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
15. Severability of Provisions. Any covenant, provision,
---------------------------
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
16. Entire Agreement. This Agreement constitutes the entire
-----------------
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
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17. Amendment. Neither this Agreement nor any term hereof may
----------
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
18. Headings. The headings in this Agreement are for the
---------
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
19. Counterparts. This Agreement may be executed in
-------------
counterparts, each of which shall constitute an original, but all of which shall
together constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
--------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will be a binding agreement among the undersigned in accordance
with its terms.
Very truly yours,
FIRST USA BANK, N.A.,
as Transferor and Servicer
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
SALOMON BROTHERS INC
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Vice President
