EXHIBIT 1.1
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 2001-4
Class B Floating Rate Asset Backed Certificates,
Series 2001-4
UNDERWRITING AGREEMENT
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May 3, 2001
Banc One Capital Markets, Inc.,
as Representative of the
Underwriters set forth herein
1 Bank Xxx Xxxxx, Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the "Bank"), has
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duly authorized the issuance and sale to Banc One Capital Markets, Inc. (the
"Representative"),Bear, Xxxxxxx & Co. Inc., Deutsche Banc Alex. Xxxxx Inc. and
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X.X. Xxxxxx Securities Inc., as underwriters (collectively with the
Representative, the "Underwriters" and each individually, an "Underwriter") of
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First USA Credit Card Master Trust $600,000,000 aggregate principal amount of
Class A Floating Rate Asset Backed Certificates, Series 2001-4 (the "Class A
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Certificates") and of First USA Credit Card Master Trust $46,428,000 aggregate
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principal amount of Class B Floating Rate Asset Backed Certificates, Series
2001-4 (the "Class B Certificates" and, together with the Class A Certificates,
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the "Certificates"). The Certificates will be issued pursuant to a Pooling and
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Servicing Agreement dated as of September 1, 1992, as amended as of the date
hereof (the "Master Pooling and Servicing Agreement"), as supplemented by the
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Series 2001-4 Supplement, dated as of the Closing Date (the "Supplement" and,
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together with the Master Pooling and Servicing Agreement, the "Pooling and
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Servicing Agreement"), each by and between the Bank, as transferor and
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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 of the
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Trust will include, among other things, receivables (the "Receivables") arising
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under certain MasterCard(R) and VISA(R)/1/ revolving credit card accounts
(the "Accounts").
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The bank
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represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange
Commission (the "Commission"), on Form S-3, a registration statement
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(Registration No. 333-87653) pursuant to Rule 415 under the Securities Act of
1933, as amended (such act, the "Act"). The Bank may have filed one or more
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amendments thereto each of which amendments has previously been furnished to
each of the Underwriters. The Bank will also file with the Commission a
prospectus supplement in accordance with Rule 424(b) under the Act. As filed,
the registration statement, including any amendments thereto, the form of
prospectus supplement, and any prospectuses or prospectus supplements filed
pursuant to Rule 424(b) under the Act relating to the Certificates shall, except
to the extent that the Underwriters shall agree in writing to a modification, be
in all substantive respects in the form furnished to the Representative prior to
the Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest preliminary prospectus supplement which has previously
been furnished to the Underwriters) as the Bank has advised the Underwriters,
prior to the Execution Time, will be included or made therein.
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/1/ VISA(R) and MasterCard(R) are registered trademarks of VISA USA
Incorporated and MasterCard International Incorporated, respectively.
2
For purposes of this Agreement, "Effective Time" means the date and time
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as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. Such registration
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statement, as amended at the Effective Time, and including the exhibits thereto
and any material incorporated by reference therein (including any 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 final prospectus supplement (the
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"Prospectus Supplement") relating to the Certificates, as filed with the
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Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under
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the Act is, together with the prospectus (such prospectus, in the form it
appears in the Registration Statement or in the form filed with the Commission
pursuant to Rule 424(b) together with the Prospectus Supplement being
hereinafter referred to as the "Basic Prospectus"), hereinafter referred to as
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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 the Effective Date,
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the Registration Statement did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus did not or will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Bank makes no representation or warranty
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as to the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished in
writing to the Bank by the Underwriters specifically for use in connection with
preparation of the Registration Statement or the Prospectus.
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(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 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 Loan Agreement, dated as of the Closing Date (the "Loan
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Agreement"), among the Bank, the Trustee, the CA Investors named therein (each,
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a "CA Investor") and the agent named therein (the "Agent").
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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
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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 Loan 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 Loan 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 Loan 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 Loan Agreement or this Agreement, will result in
the breach of any term or provision of the organizational documents or by-laws
of the Bank, or conflict with, result in a breach, violation or acceleration of,
or constitute a default under, the terms of any indenture or other agreement or
instrument to which the Bank is a party or by which it or its properties is
bound or may be affected or any statute, order or regulation applicable to the
Bank of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Bank or will result in the creation of
any Lien upon any property or assets of the Bank (other than as contemplated in
the Pooling and Servicing Agreement). The Bank is not a party to, bound by, or
in breach
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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 Loan 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 Loan Agreement, the Pooling and Servicing
Agreement, or the Certificates, (ii) assert the invalidity of this Agreement,
the Loan 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 Loan 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 Loan 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 Loan 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
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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 Loan 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) As of the Closing Date, the Principal Receivables
transferred to the Trust pursuant to the Pooling and Servicing Agreement will
have an aggregate balance of not less than the sum of (i) the aggregate
outstanding principal amount of all classes of all Series outstanding at the
close of business on the Closing Date (including Series 2001-4), plus (ii) 4% of
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the amount stated in clause (i).
(p) The Trust is not, and will not become as a result of the
issuance and sale of the Certificates, subject to regulation as 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
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of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Bank agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Bank, on May 16, 2001 or on such other date as shall be mutually agreed
upon by the Bank and the Underwriters (the "Closing Date"), the amount and type
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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 99.775% 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 99.750%
of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall be
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held at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
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at 10:00 a.m., New York City time, on the Closing Date. Payment of the purchase
price for the Certificates being sold and purchased hereunder shall be made on
the Closing Date by wire transfer of Federal or other immediately available
funds to an account to be designated one business day prior to the Closing Date
by the Bank, against delivery of the Certificates at the Closing on the Closing
Date. Each of the Certificates to be so delivered shall be represented by one or
more definitive certificates registered in the name of Cede & Co., as nominee
for The Depository Trust Company.
3. Offering by Underwriters. (a) It is understood that after the
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Effective Date the Underwriters propose to offer the Certificates for sale to
the public as set forth in the Prospectus.
(b) Each Underwriter may provide to prospective investors the
Series 2001-4 Term Sheet, dated May 2, 2001, relating to the Certificates (the
"2001-4 Series Term Sheet") prepared by the Bank and attached hereto as Exhibit
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A, subject to the following conditions:
(i) Such Underwriter shall have complied with the requirements
of (A) the no-action letter, dated May 20, 1994, issued by the Commission
to Xxxxxx, 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 Letter"), (B) the requirements of the
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no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter") and (C) the requirements
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of the no-action letter, dated April 5, 1996, issued by the Commission to
Greenwood Trust Company (the "Greenwood Letter" and, together with the
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Xxxxxx/PSA Letter and the PSA Letter, 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 2001-4 Series Term Sheet, it has not and will not
use any information that constitutes
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"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 the
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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
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have the meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and agrees
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with the several Underwriters as follows:
(a) Immediately following the execution of this Agreement, the
Bank will prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Basic Prospectus, the price at which such Certificates are to be purchased
by the Underwriters, the initial public offering price, the selling concessions
and allowances, and such other information as the Bank deems appropriate. The
Bank will transmit the Prospectus including such Prospectus Supplement to the
Commission pursuant to Rule 424(b) by a means reasonably calculated to result in
filing that complies with all applicable provisions of Rule 424(b). The Bank
will advise the Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Bank will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
Representative, which consent will not unreasonably be withheld; the Bank will
also advise the Representative promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Bank will also advise the Representative
promptly of any amendment or supplement to the Registration Statement or the
Prospectus and of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and the Bank will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
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(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.
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(g) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank will deliver to the Representative the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding, the Bank
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Certificateholders
or filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any order of the Commission thereunder and (ii)
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from time to time, any other information concerning the Bank filed with any
government or regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided with respect
to the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
(j) The Bank will file with the Commission a report on Form 8-K
with respect to the 2001-4 Series 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
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the performance of its obligations under this Agreement, including (i) the
printing of the 2001-4 Series 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
Loan 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
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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 2001-4 Series Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing and
delivery to the Underwriters of copies of the Prospectus and of each amendment
or supplement thereto, (ix) the printing and delivery to the Underwriters of
copies of any blue sky or legal investment survey prepared in connection with
the Certificates, (x) any fees charged by rating agencies for the rating of the
Certificates, (xi) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and (xii) the
fees and expenses of the Trustee and its counsel.
6. Conditions of the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Certificates
will be subject to the accuracy of the representations and warranties on the
part of the Bank herein, to the accuracy of the statements of officers of the
Bank made pursuant to the provisions hereof, to the performance by the Bank of
its obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 1 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Bank, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and on or prior to
the Closing Date, the Underwriters shall have received a letter or letters,
dated as of the date of the Prospectus and as of the Closing Date, respectively,
of Xxxxxx Xxxxxxxx, 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.
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(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 BANK ONE CORPORATION on any exchange
or in the over-the-counter market which materially impairs the investment
quality of the Certificates or makes it impractical or inadvisable to market the
Certificates; (iv) any banking moratorium declared by Federal, Delaware or New
York authorities; or (v) any outbreak or escalation of major hostilities or
armed conflict, any declaration of war by Congress, or any other substantial
national or international calamity or emergency if, in the judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity, or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to the
Representative certificates of a vice president or more senior officer of the
Bank as to the accuracy of the representations and warranties of the Bank herein
at and as of the Closing Date, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to such Closing Date, and as
to such other matters as the Representative may reasonably request.
(e) Xxxxxxxxx X. Xxxxxxx, Chief Legal Officer, Executive Vice
President and Secretary of BANK ONE CORPORATION, the parent corporation of First
USA Bank, National Association, shall have furnished to the Representative her
written opinion, addressed to the Representative and dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) The Bank has been duly organized and is validly existing as
a national banking association in good standing
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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 Loan 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 now has, the
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power, authority and legal right to acquire, own and transfer the
Receivables;
(ii) The Certificates have been duly authorized, executed and
delivered by the Bank and, when duly authenticated by the Trustee in
accordance with the terms of the Pooling and Servicing Agreement and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be validly issued and outstanding and entitled to
the benefits provided by the Pooling and Servicing Agreement;
(iii) Each of the Pooling and Servicing Agreement and the Loan
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;
(iv) This Agreement has been duly authorized, executed and
delivered by the Bank;
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(v) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution, delivery and
performance by the Bank of its obligations under the Agreements or the
Certificates, or (B) the issuance or sale of the Certificates, except such
as have been obtained under the Act and as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters and the filing of
Uniform Commercial Code financing statements with respect to the
Receivables;
(vi) To the best knowledge of such counsel, neither the
execution and delivery of the Agreements or the Certificates by the Bank
nor the performance by the Bank of the transactions therein contemplated
nor the fulfillment of the terms thereof does or will result in any
violation of any statute or regulation or any order or decree of any court
or governmental authority binding upon the Bank or its property, or
conflict with, or result in a breach or violation of any term or provision
of, or result in a default under any of the terms and provisions of, the
Bank's organizational documents or by-laws or any material indenture, loan
agreement or other material agreement to which the Bank is a party or by
which the Bank is bound;
(vii) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to which the Bank is
a party or to which the Bank is subject which, individually or in the
aggregate (A) would have a material adverse effect on the ability of the
Bank to perform its obligations under the Agreements or the Certificates,
(B) assert the invalidity of the Agreements or the Certificates, (C) seek
to prevent the issuance, sale or delivery of the Certificates or any of the
transactions
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contemplated by the Agreements or (D) seek to affect adversely the Federal
income tax or ERISA attributes of the Certificates described in the
Prospectus;
(viii) The Registration Statement and the Prospectus (except for
the financial statements, financial schedules and other financial and
operating data included therein, as to which such counsel expresses no
opinion) comply as to form with the Act and the Rules and Regulations;
(ix) The Registration Statement has become effective under the
Act, and the Prospectus Supplement will be filed with the Commission
pursuant to Rule 424(b) thereunder; and
(x) Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the information contained in the Registration
Statement and Prospectus. Based upon her discussions with the Bank, its
accountants and others, however, no facts have come to its attention that
cause her to believe that the Prospectus (except for the financial
statements, financial schedules and other financial and statistical data
included therein, as to which such counsel expresses no opinion), contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(f) The Representative shall have received a letter from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the
effect that the Representative may rely on its opinion to Xxxxx'x Investors
Service, Inc. ("Moody's"), Standard & Poor's Ratings, a division of The McGraw-
-------
Hill Companies,
16
Inc.("Standard & Poor's"), and Fitch, Inc. ("Fitch") with respect to certain
------------------ -----
bank regulatory 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 Loan
Agreement (collectively referred to in this subsection (h) as the
"Agreements") constitutes the valid and binding obligation of the Bank,
----------
enforceable against the Bank in accordance with its terms, except (x) to
the extent that the enforceability thereof may be limited by (a)
bankruptcy, insolvency, receivership, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and the rights of creditors of national banking associations as
the same may be applied in the event of the bankruptcy, insolvency,
receivership, reorganization, moratorium or other similar event in respect
of the Bank, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and (c)
the qualification that certain of the remedial provisions of the Agreements
may be unenforceable in whole or in part, but 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
17
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 Applicable Law of the States of Delaware and New York or any
Applicable Laws of the United States of America;
(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 or the enforceability of any of the Agreements against 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;
18
(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, 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
19
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 counsel for the Trustee, shall have furnished to
----------------
the Representative its written opinion, addressed to the Representative and
dated the Closing Date, in form and substance satisfactory to the Representative
and its counsel, substantially to the effect that:
(i) BONY is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York and
has the corporate power and authority to execute, deliver and perform its
obligations under the Agency Agreement;
(ii) The Certificates have been duly authenticated by BONY
pursuant to the Agency Agreement and in accordance with the Pooling and
Servicing Agreement;
(iii) The Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to execute, deliver and
perform its obligations under the Pooling and Servicing Agreement, the
Supplement and the Loan Agreement;
(iv) Each of the Supplement and the Loan Agreement has been
duly authorized, executed and delivered by the Trustee, and the
20
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 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 Loan Agreement, and the performance of the terms thereof by the
Trustee and the performance of the Trustee of its obligations under the
Pooling and Servicing Agreement, does not conflict with or constitute a
breach of or default under the charter or by-laws of the Trustee or any
agreement, indenture or other instrument, in each case known to such
counsel, to which the Trustee is a party or by which it or any of its
properties may be
21
bound, and does not violate any law, governmental rule or regulation of the
State of Delaware or any federal law of the United States of America
governing the banking or trust powers of the Trustee or any court decree
known to such counsel to be applicable to the Trustee;
(vi) The execution and delivery by the Trustee of the
Supplement and the Loan Agreement, 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; and
(vii) The Loan Agreement constitutes a legal, valid and binding
obligation of the Trustee, enforceable against the Trustee in accordance
with its terms, except (x) to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, receivership, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and the rights of creditors of Delaware
chartered banks as the same may be applied in the event of the bankruptcy,
insolvency, receivership, reorganization, moratorium or other similar event
in respect of the Trustee and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in
equity), and (y) such counsel expresses no opinion as to the enforceability
of any rights to contribution or indemnification which are violative of the
public policy underlying any law, rule or regulation.
(j) The Representative shall have received opinions of counsel to
the Agent and each CA Investor in
22
their respective jurisdictions of organization (foreign and/or domestic, as
applicable), addressed to the Representative, dated the Closing Date,
substantially to the effect that (i) the Loan Agreement has been duly authorized
by all necessary corporate action and has been duly executed and delivered by
the Agent and each CA Investor through its applicable branches and constitutes
the legal, valid and binding obligation of the Agent and each CA Investor,
enforceable against the Agent and each CA Investor through its applicable branch
in accordance with its terms under the laws of the jurisdiction of organization
of its branch and of its jurisdiction of organization, except 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 or equitable principals of
general applicability and (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity) and
(ii) covering such other matters as are customary and in form and substance
satisfactory to the Representative and its counsel.
(k) The Representative shall have received evidence satisfactory
to the Representative and its counsel that, on or before the Closing Date,
financing statements have been filed in the appropriate filing offices of the
State of Delaware and such other jurisdictions as counsel to the Bank deems
appropriate to reflect the interest of the Trustee in the Receivables.
(l) The Class A Certificates shall be rated "AAA" by Standard &
Poor's, "Aaa" by Moody's and "AAA" by Fitch and the Class B Certificates shall
be rated at least "A" by Standard & Poor's, at least "A1" by Moody's 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.
(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
23
the Representative and its counsel, and the Representative and its counsel shall
have received such information, certificates and documents as any of them may
reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) The Bank agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act and under Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities to which they may
become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or in any revision or amendment thereof or supplement
thereto or any related preliminary prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with 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
24
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 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
25
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 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
26
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 be deemed to
be relied upon, in the case of the Bank, by
27
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 underwriter, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the applicable class of Certificates,
each of the non-defaulting Underwriters of such class of Certificates shall
be obligated to 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
28
of all non-defaulting Underwriters of such class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the applicable class of Certificates,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Bank shall
have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
11. Representation of the Underwriters. Each of the
----------------------------------
Underwriters represents and warrants to, and agrees with, the Bank that (w)
it has only issued or passed on and shall only issue or pass on in the
United Kingdom any document received by it in connection with the issue of
the Certificates to a person who is of a kind described in Article 11(3) of
the Financial Services Xxx 0000 (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 Xxx 0000
and other applicable laws and regulations with respect to anything done by
it in relation to the Certificates in, from or otherwise involving the
United Kingdom and (y) if that Underwriter is an authorized person under
the Financial Services 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
29
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 Banc One Capital Markets, Inc., 1
Bank Xxx Xxxxx, Xxxx Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset Backed Finance, or to such other address as the Representative may
designate in writing to the Bank or (b) the Bank, addressed to the Bank at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxx,
Senior Vice President, telephone (000) 000-0000, telecopier: (302) 282-
6605, with a copy to BANK ONE CORPORATION, 1 Bank Xxx Xxxxx, Xxxx Xxxxx
XX0-0000 Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxxxx, First Vice
President Structured Finance, telephone: (000) 000-0000, telecopier: (312)
732-4055.
13. Secondary Trust or Special Purpose Vehicle. Each
------------------------------------------
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of
the Act) with respect to the Certificates, transfer, deposit or otherwise
convey any Certificates into a trust or other type of special purpose
vehicle that issues securities or other instruments backed in whole or in
part by, or that represents interests in, such Certificates without the
prior written consent of the Bank.
14. Successors. This Agreement shall inure to the benefit of
----------
and be 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-
30
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 an original, but all of which
shall together constitute one instrument.
20. GOVERNING LAW THIS AGREEMENT SHALL BE GOVERNED BY, AND
--------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
31
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. Xxxxxxxxxxx
----------------------------
Name:Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
BANC ONE CAPITAL MARKETS, INC.,
for itself and as Representative
of the Underwriters named in
Schedule A hereto
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Director
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
------------ ----------------------
Banc One Capital Markets, In..... $ 150,000,000
Bear, Xxxxxxx & Co. Inc.......... 150,000,000
Deutsche Banc Alex. Xxxxx Inc.... 150,000,000
X.X. Xxxxxx Securities Inc....... 150,000,000
---------------
Total ................. $ 600,000,000
===============
Aggregate Principal
Amount of the Class B
Underwriter Certificates
------------ ----------------------
Banc One Capital Markets, Inc.... $ 11,607,000
Bear, Xxxxxxx & Co. Inc.......... 11,607,000
Deutsche Banc Alex. Xxxxx Inc.... 11,607,000
X.X. Xxxxxx Securities Inc....... 11,607,000
---------------
Total ................. $ 46,428,000
===============
