EXHIBIT 1.2
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1996-8
Class B Floating Rate Asset Backed Certificates,
Series 1996-8
UNDERWRITING AGREEMENT
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December 4, 1996
X.X. Xxxxxx Securities Inc.
as Representative of the
Underwriters set forth herein
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"), has
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duly authorized the issuance and sale to X.X. Xxxxxx Securities Inc. (the
"Representative"), NationsBanc Capital Markets, Inc. and Salomon Brothers Inc,
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as underwriters (each individually, an "Underwriter" and collectively, the
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"Underwriters") of First USA Credit Card Master Trust $400,000,000 aggregate
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principal amount of Class A Floating Rate Asset Backed Certificates, Series
1996-8 (the "Class A Certificates") and $36,200,000 aggregate principal amount
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of Class B Floating Rate Asset Backed Certificates, Series 1996-8 (the "Class B
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Certificates" and together with the Class A Certificates, the "Certificates").
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The Certificates will be issued pursuant to a Pooling and Servicing Agreement,
dated as of September 1, 1992 (the "Master Pooling and Servicing Agreement"), as
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supplemented by the Series 1996-8 Supplement dated as of December 11, 1996 (the
"Supplement" and together with the Master Pooling and Servicing Agreement, the
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"Pooling and Servicing Agreement"), each by and between the Bank, as transferor
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and servicer, and The Bank of New York (Delaware) (the "Trustee").
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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) 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, including a form of
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prospectus supplement (Registration No. 33-99362) pursuant to Rule 415 under the
Securities Act of 1933, as amended (such act, the "Act"). The Bank may have
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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 as amended, the form of prospectus
supplement, and any prospectuses or prospectus supplements filed pursuant to
Rule 424(b) under the Act relating to the Certificates shall, except to the
extent that the Under writers 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 time as
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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 Computational
Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets
(as defined in Section 3(b) of this Agreement) 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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_____________________
. VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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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
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 (the "Rules and Regulations"); on the Effective Date, the
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Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not
or will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
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that the Bank makes no representation or warranty as to the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Bank by the 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 holders of the Certificates,
otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good standing
as a banking corporation under the laws of the State of Delaware and is
qualified to transact business in and is in good standing under the laws of each
state in which its activities require such qualification, and has full power,
authority and legal right to own its properties and conduct its
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business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement, the Spread Account Agreement dated as of December 11, 1996 by and
among the Bank, as Transferor and Servicer, the Trustee and The Bank of New
York, as initial collateral agent (the "Spread Account Agreement"), the Pooling
and Servicing Agreement, and the Certificates.
(e) This Agreement has been duly authorized and validly executed and
delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized and,
when executed and delivered by the Bank and assuming the due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
binding obligation of the Bank enforceable against the Bank in accordance with
its terms, subject to applicable bankruptcy, reorganization, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Pooling and Servicing Agreement will have been duly and validly
executed by the Bank and will conform in all material respects to the
description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all
required action of the Bank, and when duly and validly executed by the Bank,
authenticated by the Trustee and delivered in accordance with the Pooling and
Servicing Agreement, and delivered to and paid for by the 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 Spread Account Agreement has been duly authorized, and when
executed and delivered by the Bank and assuming the due authorization, execution
and delivery thereof by the other parties thereto, will constitute a valid and
binding obligation of the Bank enforceable against the Bank in accordance with
its terms, subject to applicable bankruptcy, reorganization, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Spread Account Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee
pursuant to the Pooling and Servicing Agreement
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will conform in all material respects with the description thereof contained in
the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor the
issuance, sale and delivery of the Certificates, nor the execution or delivery
of this Agreement, the Spread Account Agreement, or the Pooling and Servicing
Agreement, nor the consummation of any of the transactions herein or therein
contemplated, nor the fulfillment of the terms of the Certificates, the Pooling
and Servicing Agreement, the Spread Account Agreement, or this Agreement, will
result in the breach of any term or provision of the charter or by-laws of the
Bank, or conflict with, result in a breach, violation or acceleration of, or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Bank is a party or by which it or its properties is
bound or may be affected or any statute, order or regulation applicable to the
Bank of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Bank or will result in the creation of
any Lien upon any property or assets of the Bank (other than as contemplated in
the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or
in breach or violation of, any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over it, that materially and adversely affects the ability of the
Bank to perform its obligations under this Agreement, the Pooling and Servicing
Agreement, the Spread Account Agreement, or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or
proceedings before or by any court, regulatory body, administrative agency,
governmental body or arbitrator now pending or, to the best knowledge of the
Bank, threatened that, separately or in the aggregate (i) could have a material
adverse effect on (x) the general affairs, business, management financial
condition, stockholders' equity, results of operations, regulatory status or
business prospects of the Bank or (y) the ability of the Bank to perform its
obligations under this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates, (ii) assert the invalidity of this
Agreement, the Spread Account Agreement, the Pooling and Servicing Agreement, or
the Certificates, (iii) seek to prevent the issuance, sale or delivery of the
Certificates or any of the transactions contemplated by this Agreement, the
Spread Account Agreement, or the Pooling and Servicing Agreement or (iv) seek to
affect adversely the federal income tax or ERISA attributes of the Certificates
described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or
documentary stamp tax, the non-payment of
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which would result in the imposition of a Lien on the Receivables or of
transferee liability on the Trustee, is imposed with respect to the conveyance
of the Receivables from the Bank to the Trust, or in connection with the
issuance of the Certificates by the Trust, or the holding of the Receivables by
the Trust, or in connection with any of the other transactions contemplated by
this Agreement, the Spread Account Agreement, or the Pooling and Servicing
Agreement. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Certificates or the execution and
delivery of this Agreement, the Spread Account Agreement, or the Pooling and
Servicing Agreement have been or will have been paid at or prior to the Closing
Date.
(m) As of the Closing Date, the representations and warranties of the
Bank in the Pooling and Servicing Agreement, with regard to itself as both
transferor and servicer and the Receivables (individually and in the aggregate),
will be true and correct.
(n) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by the Bank of or compliance by the
Bank with this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates or the consummation of the transactions
contemplated hereby or thereby except the filing of Uniform Commercial Code
financing statements with respect to the Receivables and to the approval of the
Office of the State Bank Commissioner of the State of Delaware.
(o) Ernst & Young LLP who have audited certain financial statements of
the Bank are independent public accountants as required by the Act and the Rules
and Regulations.
(p) As of the close of business on October 31, 1996, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement have an aggregate balance determined, including the Receivables in the
Additional Accounts to be added to the Trust on or prior to the Closing Date, of
not less than the sum of (i) the sum of (x) the aggregate outstanding principal
amount of all classes of all Series outstanding on October 31, 1996, plus (y)
$2,103,400,000 plus (ii) 7% of the sum of (x) plus (y).
(q) The Trust is not, and will not be as a result of the issuance and
sale of the Certificates, an "investment company" or a company "controlled by"
an investment company within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
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2. Purchase, Sale, Payment and Delivery of Certificates. On the basis of
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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 December 11, 1996 or on such other date as shall be mutually
agreed upon by the Bank and the Underwriters (the "Closing Date"), the number
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and type of Certificates set forth in Schedule A opposite the name of each such
Underwriter. The Class A Certificates being purchased by the Underwriters
hereunder are to be purchased at a purchase price equal to 99.65% 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 99.60%
of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall be held
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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 so to
be 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 the Certificates for sale to
the public as set forth in the Prospectus.
(b) Each Underwriter may provide to prospective investors the 1996-8
Term Sheet dated October 16, 1996 relating to the Certificates (the "1996-8 Term
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Sheet") prepared by the Bank and attached hereto as Exhibit A, subject to the
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following conditions:
(i) Such Underwriter shall have complied with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Peabody 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
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Letter"), the requirements of the no-action letter, dated February 17, 1995,
issued by the Commission to the Public Securities Association (the "PSA Letter")
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and the requirements of the no-action letter, dated
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April 5, 1996, issued by the Commission to Greenwood Trust Company (the
"Greenwood Letter" and together with the Xxxxxx/PSA Letter and the PSA Letter,
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the "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 1996-8 Term Sheet, it has not and will not use any
information that constitutes "Series Term Sheets," "ABS Term Sheets," Structural
Term Sheets," or "Collateral Term Sheets" with respect to the offering of the
Certificates. For purposes hereof, "Series Term Sheet" shall have the meaning
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given such 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
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Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets" shall have
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the meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and agrees with the
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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 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
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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 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
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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.
(j) The Bank will file with the Commission a report on Form 8-K with
respect to the 1996-8 Term Sheet and a report on Form 8-K setting forth all
Computational Materials described in Section 3 hereof provided to the Bank by
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 1996-8 Term Sheet and any Computational Materials described in Section 3
hereof, (ii) the printing of the Prospectus and of each amendment or supplement
thereto, (iii) the preparation of this Agreement, the Spread Account 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 1996-8 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
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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
$118,100 incurred by the Bank in connection with the issuance and distribution
of the Certificates.
6. Conditions of the Obligations of the Underwriters. The obligations of
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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 accordance with the rules and regulations
under the Act and Section 1 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Bank, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and on or prior to the
Closing Date, the Underwriters shall have received a letter or letters, dated as
of the date of the Prospectus and as of the Closing Date, respectively, of Ernst
& Young 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 First USA, Inc. 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
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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 Date, and as
to such other matters as the Representative may reasonably request.
(e) Xxxxx X. Xxxxxx, counsel for the Bank, shall have furnished to the
Representative his written opinion, ad dressed 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 incorporated and is validly
existing as a bank in good standing under the laws of the State of
Delaware with full power and authority (corporate and other) to own
its proper ties and conduct its business, as presently owned and
conducted by it, and to enter into and perform its obligations under
this Agreement, the Spread Account Agreement and the Pooling and
Servicing Agreement (collectively, referred to in this subsection (e)
as the "Agreements"), and the Certificates and had at all times, and
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now has, the power, authority and legal right to acquire, own and
transfer the Receivables;
(ii) The Bank is duly qualified to do business and is in
good standing, and under state laws, as they are currently interpreted
and enforced, has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
licenses or approvals would materially and adversely affect the
enforce ability of any Receivable by the Bank or the Trustee or would
adversely affect the ability of the Bank to perform its obligations
under the Agreements or the Certificates;
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(iii) The Certificates have been duly
authorized, executed and delivered by the Bank and,
when duly authenticated by the Trustee in accordance
with the terms of the Pooling and Servicing Agreement
and delivered to and paid for by the 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;
(iv) Each of the Agreements has been duly
authorized, executed and delivered by the Bank and
constitutes the legal, valid and binding agreement of
the Bank enforceable against the Bank in accordance
with its terms, subject, as to enforceability to (A)
the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other
similar laws relating to or affecting the rights and
remedies of creditors generally, and (B) the
application of principles of equity (regardless of
whether considered and applied in a proceeding in
equity or at law) and the rights and powers of the
FDIC;
(v) The Trust is not now, and immediately
following the sale of the Certificates pursuant to the
Underwriting Agreement will not be, required to
register under the 1940 Act;
(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 Underwriters
and the filing of Uniform Commercial Code financing
statements with respect to the Receivables and the
approval of the Office of the State Bank Commissioner
of the State of Delaware;
(vii) To the best knowledge of such counsel,
neither the execution and
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delivery of the Agreements or the Certificates by the Bank nor the
performance by the Bank of the transactions therein contemplated nor
the fulfillment of the terms thereof does or will result in any
violation of any statute or regulation or any order or decree of any
court or governmental authority binding upon the Bank or its property,
or conflict with, or result in a breach or violation of any term or
provision of, or result in a default under any of the terms and
provisions of, the Bank's charter or by-laws or any material
indenture, loan agreement or other material agreement to which the
Bank is a party or by which the Bank is bound;
(viii) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending
to which the Bank is a party or to which the Bank is subject which,
individually or in the aggregate (A) would have a material adverse
effect on the ability of the Bank to perform its obligations under the
Agreements or the Certificates, (B) assert the invalidity of the
Agreements or the Certificates, (C) seek to prevent the issuance, sale
or delivery of the Certificates or any of the transactions
contemplated by the Agreements or (D) seek to affect adversely the
federal income tax or 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
Xxxxxxxx-
00
tion 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 Representative shall have received a letter of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the effect that the
Representative may rely on those provisions of their opinions to Xxxxx'x
Investors Service, Inc. and Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") with respect to certain
-----------------
matters relating to the transfer of the Receivables to the Trust, with respect
to the perfection of the Trust's interest in the Receivables and with respect to
other related matters.
(g) The Representative shall have received an opinion of Skadden,
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
Spread Account Agreement (collectively referred to in this subsection
(h) as the "Agreements") constitutes the valid and binding obligation
----------
of the Bank, enforceable against the Bank in accordance with its
terms, except (x) to the extent that the enforceability thereof may be
limited by (a) bankruptcy, insolvency, receivership, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to
15
creditors' rights generally and the rights of creditors of Delaware
chartered banks as the same may be applied in the event of the
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar event in respect of the Bank, (b) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (c) the qualification that certain
of the remedial provisions of the Agreements may be unenforceable in
whole or in part, but the inclusion of such provisions does not affect
the validity of the Agreements taken as a whole, and the Agreements,
together with applicable law, contain adequate provisions for the
practical realization of the benefits of the security created thereby
and (y) such counsel expresses no opinion as to the enforceability of
any rights to contribution or indemnification which are violative of
public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and authenticated in
accordance with 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;
16
(vi) The Certificates, the Agreements and this
Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus;
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be
registered under the 1940 Act;
(viii) The statements in the Prospectus under the
heading "Certain Legal Aspects of the Receivables", to the
extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects; and
(ix) Each of the Registration Statement, as of
its effective date, and the Prospectus, as of its date,
appeared on its face to be appropriately responsive in all
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, com pleteness 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
17
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
opinion or excluded therefrom.
(i) XxXxxxx Xxxxx 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 their 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 and
the Spread Account Agreement;
(iv) the Supplement and the Spread Account
Agreement have been duly authorized, executed and delivered
by the Trustee, and the Pooling and Servicing Agreement and
the Spread Account Agreement constitute the legal, valid and
binding agreements of the Trustee enforceable against the
Trustee in accordance with their respective terms, except
(x) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights of creditors generally
18
(as such laws would apply in the event of the insolvency,
receivership, conservatorship or reorganization of, or other
similar occurrence with respect to, the Trustee), (y) that
the enforceability of the Pooling and Servicing Agreement
and the Spread Account Agreement may be subject to the
application of general principles of equity (regardless of
whether considered or applied in a proceeding in equity or
at law), and (z) that certain remedial provisions of the
Pooling and Servicing Agreement may be unenforceable in
whole or in part, but the inclusion of such provisions does
not affect the validity of the Pooling and Servicing
Agreement taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contains adequate
provisions for the practical realization of the benefits of
the security provided thereby. Such counsel expresses no
opinion as to the enforceability of any rights to
contribution or indemnification that are violative of public
policy underlying any law, rule or regulation;
(v) the execution and delivery by the Trustee of
the Supplement and the Spread Account Agreement and the
performance by the Trustee of its obligations under the
Pooling and Servicing Agreement and the Spread Account
Agreement do not conflict with or result in a violation of
(x) any law or regulation of the United States of America or
the State of Delaware governing the banking or trust
activities of the Trustee or (y) the amended and restated
articles of association or by-laws of the Trustee; and
(vi) the execution and delivery by the Trustee of
the Supplement and the Spread Account Agreement and the
performance by the Trustee of its obligations under the
Pooling and Servicing Agreement and the Spread Account
Agreement do not require any approval, authorization or
other action by, or filing with, any governmental authority
of the United States of America or the State of Delaware
having jurisdiction over the banking or trust activities of
the Trustee, except such as have been obtained, taken or
made.
19
(j) 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.
(k) The Class A Certificates shall be rated "AAA" by Standard & Poor's
and "Aaa" by Xxxxx'x Investors Service, Inc. and the Class B Certificates shall
be rated at least "A" by Standard & Poor's and rated at xxxxx "X0" by Xxxxx'x
Investors Service, Inc. on the Closing Date, and letters to such effect dated
the Closing Date shall have been received from each Rating Agency.
(l) The Representative shall have received evidence satisfactory to
the Representative that, on or before the Closing Date, the Bank shall have
received the approval of the Office of the State Bank Commissioner of the State
of Delaware to the trans action.
(m) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident thereto shall be satisfactory in
form and substance to 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
20
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Bank will not be liable in any such case to the
-------- -------
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in 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 or alleged
omission was made in reliance upon and in conformity with written information
furnished to the
21
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 otherwise
than under this Section 7. In case 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 rea
sonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnifying party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the rela-
22
tive 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) 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
23
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 Underwriter shall have the right, within 24 hours
----------
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, 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 purchase 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 Agree-
24
ment 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 Xxx
0000 (Investment Advertisements)(Exemptions) Order 1996 or who is a person to
whom the document may otherwise lawfully be issued or passed on, (x) it has
complied and shall comply with all applicable provisions of the Financial
Services Xxx 0000 of Great Britain 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
Xxx 0000, 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 Xxx 0000 or in Regulation 1.04 of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991.
12. Notices. All communications provided for or permitted hereunder
-------
shall be in writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail, postage
prepaid and return receipt requested, or transmitted by telex, telegraph or
telecopier and confirmed by a similar mailed writing, if to (a) the
Underwriters, addressed to X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000-0000, Attention: ABS Trading/Syndicate, or to such other
address as the Underwriters may designate in writing to the Bank or (b)
25
the Bank, addressed to the Bank at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Executive Vice President - Finance & Accounting, with a copy
to First USA, Inc., 0000 Xxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention:
Securitization Group.
13. Secondary Trusts. 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
----------
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 unenforce
able in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
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
26
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.
27
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By:/s/ W. Xxxx Xxxxxxxx
------------------------
Name: W. Xxxx Xxxxxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
X.X. XXXXXX SECURITIES INC.,
for itself and as Representative
of the several Underwriters named
in Schedule A hereto
By:/s/ Xxxxxxx Xxxxx, III
---------------------------
Name: Xxxxxxx Xxxxx, III
Title: Vice President
28
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
X.X. Xxxxxx Securities Inc........ $134,000,000
NationsBanc Capital Markets, Inc.. $133,000,000
Salomon Brothers Inc ............. $133,000,000
Total................... $400,000,000
Aggregate Principal
Amount of the Class B
Underwriter Certificates
----------- ------------
X.X. Xxxxxx Securities Inc. . . . . $12,068,000
NationsBanc Capital Markets, Inc. . $12,066,000
Salomon Brothers Inc . . . . . . .. $12,066,000
Total. . . . . . . . . .. $36,200,000
29
