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First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1998-6
Class B Floating Rate Asset Backed Certificates,
Series 1998-6
UNDERWRITING AGREEMENT
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August 20, 1998
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0060
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to X.X. Xxxxxx Securities
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Inc. (the "Underwriter") of First USA Credit Card Master Trust $800,000,000
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aggregate principal amount of Class A Floating Rate Asset Backed Certificates,
Series 1998-6 (the "Class A Certificates") and of First USA Credit Card Master
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Trust $72,289,000 aggregate principal amount of Class B Floating Rate Asset
Backed Certificates, Series 1998-6 (the "Class B Certificates" and, together
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with the Class A Certificates, the "Certificates"). The Certificates will be
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issued pursuant to a Pooling and Servicing Agreement dated as of September 1,
1992, as amended as of the date hereof (the "Master Pooling and Servicing
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Agreement"), as supplemented by the Series 1998-6 Supplement, dated as of the
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Closing Date (the "Supplement" and, together with the Master Pooling and
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Servicing Agreement, the "Pooling and Servicing Agreement"), each by and
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between the Bank, as transferor and servicer, and The Bank of New York
(Delaware), a Delaware banking corporation, as trustee (in such capacity, the
"Trustee").
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Each Certificate will represent an undivided interest in
certain assets of First USA Credit Card Master Trust (the "Trust"). The property
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of the Trust will include, among other things, receivables (the "Receivables")
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arising under certain
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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
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Bank represents and warrants to, and agrees with, the Underwriter as follows:
(a) The Bank has filed with the Securities and Exchange
Commission (the "Commission"), on Form S-3, a registration statement
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(Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of
1933, as amended (such act, the "Act"). The Bank may have filed one or more
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amendments thereto each of which amendments has previously been furnished to the
Underwriter. The Bank will also file with the Commission a prospectus supplement
in accordance with Rule 424(b) under the Act. As filed, the registration
statement, including any amendments thereto, the form of prospectus supplement,
and any prospectuses or prospectus supplements filed pursuant to Rule 424(b)
under the Act relating to the Certificates shall, except to the extent that the
Underwriter shall agree in writing to a modification, be in all substantive
respects in the form furnished to the Underwriter prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary prospectus supplement which has previously been furnished to
the Underwriter) as the Bank has advised the Underwriter, prior to the Execution
Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date
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and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
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registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein (including
any Computational Materials, ABS Term Sheets, Structural Term Sheets and
Collateral Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K),
is hereinafter referred to as the "Registration Statement," and any prospectus
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supplement (the "Prospec-
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1 VISA(R) and MasterCard(R) are registered trademarks of Visa
USA Incorporated and MasterCard International Incorporated,
respectively.
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tus Supplement") relating to the Certificates, as filed with the Commission
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pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is,
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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 Prospectus"), hereinafter referred
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to as the "Prospectus". "Execution Time" shall mean the date and time that this
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Agreement is executed and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement,
the Registration Statement did or will, and, when the Prospectus was first filed
and on the Closing Date, the Prospectus did or will, comply in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission under the Act (the "Rules and Regulations"); on
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the Effective Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus did not or will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Bank makes no representation
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or warranty as to the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Bank by the Underwriter specifically for use in
connection with preparation of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has not been
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank and (ii) the Bank has not entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Bank that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Certificates,
otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good
standing as a national banking association under the
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laws of the United States, and has full corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement, the Pooling and
Servicing Agreement, the Certificates and the Transfer and Administration
Agreement, dated as of the Closing Date (the "Transfer and Administration
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Agreement"), between the Bank and Bankers Trust (Delaware), a Delaware banking
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corporation, not in its individual capacity but solely as Owner Trustee on
behalf of the First USA Secured Note Trust 1998-6 (in such capacity, the "Owner
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Trustee").
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(e) This Agreement has been duly authorized and validly
executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly
authorized and, when executed and delivered by the Bank and assuming the due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and binding obligation of the Bank enforceable against the Bank in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Pooling and Servicing Agreement will have been duly and validly
executed by the Bank and will conform in all material respects to the
description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by
all required action of the Bank, and, when duly and validly executed by the
Bank, authenticated by the Trustee and delivered in accordance with the Pooling
and Servicing Agreement, and delivered to and paid for by the Underwriter as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. As of the Closing Date, the
Certificates will have been duly and validly executed by the Bank, and will
conform in all material respects to the descriptions thereof contained in the
Prospectus.
(h) The Transfer and Administration Agreement has been duly
authorized, and, when executed and delivered by the Bank and assuming the due
authorization, execution and delivery thereof by the other parties thereto, will
constitute a valid and binding obligation of the Bank enforceable against the
Bank in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
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principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law). As of the Closing Date, the Transfer and
Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the
Trustee pursuant to the Pooling and Servicing Agreement will conform in all
material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee,
nor the issuance, sale and delivery of the Certificates, nor the execution or
delivery of this Agreement, the Transfer and Administration Agreement or the
Pooling and Servicing Agreement, nor the consummation of any of the transactions
herein or therein contemplated, nor the fulfillment of the terms of the
Certificates, the Pooling and Servicing Agreement, the Transfer and
Administration Agreement or this Agreement, will result in the breach of any
term or provision of the organizational documents or 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 Transfer and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions, suits,
claims or proceedings before or by any court, regulatory body, administrative
agency, governmental body or arbitrator now pending or, to the best knowledge of
the Bank, threatened that, separately or in the aggregate (i) could have a
material adverse effect on (x) the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank or (y) the ability of the Bank to
perform its obligations under this Agreement, the Transfer and Administration
Agreement, the
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Pooling and Servicing Agreement, or the Certificates, (ii) assert the invalidity
of this Agreement, the Transfer and Administration Agreement, the Pooling and
Servicing Agreement, or the Certificates, (iii) seek to prevent the issuance,
sale or delivery of the Certificates or any of the transactions contemplated by
this Agreement, the Transfer and Administration Agreement or the Pooling and
Servicing Agreement or (iv) seek to affect adversely the federal income tax or
ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax
or documentary stamp tax, the non-payment of which would result in the
imposition of a Lien on the Receivables or of transferee liability on the
Trustee, is imposed with respect to the conveyance of the Receivables from the
Bank to the Trust, or in connection with the issuance of the Certificates by the
Trust, or the holding of the Receivables by the Trust, or in connection with any
of the other transactions contemplated by this Agreement, the Transfer and
Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees
and other governmental charges in connection with the execution, delivery and
issuance of the Certificates or the execution and delivery of this Agreement,
the Transfer and Administration Agreement or the Pooling and Servicing Agreement
have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties
of the Bank in the Pooling and Servicing Agreement, with regard to itself as
both transferor and servicer and the Receivables (individually and in the
aggregate), will be true and correct.
(n) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by the Bank of or compliance by the
Bank with this Agreement, the Transfer and Administration Agreement, the Pooling
and Servicing Agreement, or the Certificates or the consummation of the
transactions contemplated hereby or thereby except the filing of Uniform
Commercial Code financing statements with respect to the Receivables.
(o) PricewaterhouseCoopers LLP who have audited certain
financial statements of the Banc One Corporation are independent public
accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receivables
transferred to the Trust pursuant to the Pooling and
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Servicing Agreement will have an aggregate balance of not less than the sum of
(i) the aggregate outstanding principal amount of all classes of all Series
outstanding at the close of business on the Closing Date (including Series
1998-6), plus (ii) 4% of the amount stated in clause (i).
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(q) The Trust is not, and will not be as a result of the
issuance and sale of the Certificates, an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
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2. Purchase, Sale, Payment and Delivery of Certificates. On the
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basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Bank, on August
27, 1998 or on such other date as shall be mutually agreed upon by the Bank and
the Underwriter (the "Closing Date"), $800,000,000 aggregate principal amount of
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Class A Certificates and $72,289,000 aggregate principal amount of Class B
Certificates. The Class A Certificates being purchased by the Underwriter
hereunder are to be purchased at a purchase price equal to 99.650% of the
principal amount thereof. The Class B Certificates being purchased by the
Underwriter hereunder are to be purchased at a purchase price equal to 99.625%
of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall
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be held at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the
Closing Date. Payment of the purchase price for the Certificates being sold and
purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
3. Offering by the Underwriter. (a) It is understood that after
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the Effective Date the Underwriter proposes to offer the Certificates for sale
to the public as set forth in the Prospectus.
(b) The Underwriter may provide to prospective investors the
1998-6 Term Sheet, dated August 18,
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1998, relating to the Certificates (the "1998-6 Term Sheet") prepared by the
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Bank and attached hereto as Exhibit A, subject to the following conditions:
(i) The Underwriter shall have complied with the requirements
of (A) the no-action letter, dated May 20, 1994, issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx
& Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in the
response to the request of the Public Securities Association, dated May
24, 1994 (collectively, the "Xxxxxx/PSA Letter"), (B) the requirements
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of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter") and
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(C) the requirements of the no-action letter, dated April 5, 1996,
issued by the Commission to Greenwood Trust Company (the "Greenwood
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Letter" and, together with the Xxxxxx/PSA Letter and the PSA Letter,
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the "No-Action Letters").
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(ii) The Underwriter represents and warrants to the Bank that
(a) it has not and will not use any information that constitutes
"Computational Materials" with respect to the offering of the
Certificates unless it has obtained the prior written consent of the
Bank to such usage and (b) other than the 1998-6 Term Sheet, it has not
and will not use any information that constitutes "Series Term Sheets,"
"ABS Term Sheets," "Structural Term Sheets" or "Collateral Term Sheets"
with respect to the offering of the Certificates. For purposes hereof,
"Series Term Sheet" shall have the meaning given such term in the
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Greenwood Letter and "Computational Materials" shall have the meaning
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given such term in the No-Action Letters. For purposes hereof, "ABS
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Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
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shall 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 Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Bank will prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Basic Prospectus, the price at which such Certificates are to be purchased
by the Underwriter, the initial public offering price, the selling concessions
and allowances, and such other information as the Bank deems appropriate. The
Bank will transmit the Prospectus including such Prospectus Supplement to the
Commission pursuant
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to Rule 424(b) by a means reasonably calculated to result in filing that
complies with all applicable provisions of Rule 424(b). The Bank will advise the
Underwriter promptly of any such filing pursuant to Rule 424(b).
(b) The Bank will advise the Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
Underwriter, which consent will not unreasonably be withheld; the Bank will also
advise the Underwriter promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Bank will also advise the Underwriter
promptly of any amendment or supplement to the Registration Statement or the
Prospectus and of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and the Bank will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the Bank promptly will advise
the Underwriter thereof and will prepare and file, or cause to be prepared and
filed, with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect such
compliance. Any such filing shall not operate as a waiver or limitation on any
condition or right of the Underwriter hereunder.
(d) As soon as practicable, but not later than sixteen months
after the original effective date of the Registration Statement, the Bank will
cause the Trust to make generally available to Certificateholders an earnings
statement (or statements) of the Trust covering a period of at least twelve
months beginning after the effective date of the Registration Statement which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(e) The Bank will furnish to the Underwriter copies of the
Registration Statement (one of which will be signed
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and will include all exhibits), each related preliminary prospectus or
prospectus supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriter requests.
(f) The Bank will promptly, from time to time, take such
action as the Underwriter may reasonably request to qualify the Certificates for
offering and sale under the securities laws of such jurisdictions as the
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Certificates, provided that
in connection therewith the Bank shall not be required to qualify as a foreign
corporation or dealer in securities or to file a general consent to service of
process in any jurisdiction.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank will deliver to the Underwriter the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding, the
Bank will furnish to the Underwriter (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Certificateholders
or filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any order of the 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
Underwriter reasonably requests.
(i) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that initially rate
the Certificates is conditional upon the furnishing of documents or the taking
of any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
(j) The Bank will file with the Commission a report on Form
8-K with respect to the 1998-6 Term Sheet and a report on Form 8-K setting forth
all Computational Materials described in Section 3 hereof provided to the Bank
by the Underwriter and identified by the Underwriter as within the time
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period allotted for such filing pursuant to the No-Action Letters.
5. Payment of Expenses. The Bank will pay all expenses incident
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to the performance of its obligations under this Agreement, including (i) the
printing of the 1998-6 Term Sheet and any Computational Materials described in
Section 3 hereof, (ii) the printing of the Prospectus and of each amendment or
supplement thereto, (iii) the preparation of this Agreement, the Transfer and
Administration Agreement and the Pooling and Servicing Agreement, (iv) the
preparation, issuance and delivery of the Certificates to the Underwriter, (v)
the fees and disbursements of the Bank's counsel and accountants, (vi) the
qualification of the Certificates under securities laws in accordance with the
provisions of Section 4(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriter and in connection with the
preparation of any blue sky and legal investment survey, (vii) the printing and
delivery to the Underwriter of copies of the 1998-6 Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing and
delivery to the Underwriter of copies of the Prospectus and of each amendment or
supplement thereto, (ix) the printing and delivery to the Underwriter of copies
of any blue sky or legal investment survey prepared in connection with the
Certificates, (x) any fees charged by rating agencies for the rating of the
Certificates, (xi) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and (xii) the
fees and expenses of the Trustee and its counsel. The Underwriter has agreed to
reimburse the Bank for expenses not to exceed $580,000 incurred by the Bank in
connection with the issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriter. The
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obligations of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Bank herein, to the accuracy of the statements of officers of the Bank made
pursuant to the provisions hereof, to the performance by the Bank of its
obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 1 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Bank, shall be contemplated by
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the Commission or by any authority administering any state securities or blue
sky law.
(b) On or prior to the date of the Prospectus and on or prior
to the Closing Date, the Underwriter shall have received a letter or letters,
dated as of the date of the Prospectus and as of the Closing Date, respectively,
of PricewaterhouseCoopers LLP, Certified Public Accountants, substantially in
the form of the drafts to which the Underwriter has previously agreed and
otherwise in form and substance satisfactory to the Underwriter and its
counsel.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, or the Bank which, in the judgment of the Underwriter,
materially impairs the investment quality of the Certificates or makes it
impractical or inadvisable to market the Certificates; (ii) any suspension or
limitation on trading in securities generally on the New York Stock Exchange or
the National Association of Securities Dealers National Market system, or any
setting of minimum prices for trading on such exchange or market system; (iii)
any suspension of trading of any securities of BANC ONE CORPORATION on any
exchange or in the over-the-counter market which materially impairs the
investment quality of the Certificates or makes it impractical or inadvisable to
market the Certificates; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) any outbreak or escalation of major
hostilities or armed conflict, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriter, the effect of any such outbreak, escalation, declaration,
calamity, or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to the
Underwriter certificates of a vice president or more senior officer of the Bank
as to the accuracy of the representations and warranties of the Bank herein at
and as of the Closing Date, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to such Closing Date, and as
to such other matters as the Underwriter may reasonably request.
(e) Xxxxxx Xxxxxxxx, Associate General Counsel of the Bank,
shall have furnished to the Underwriter her written opinion, addressed to the
Underwriter and dated the Closing Date,
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in form and substance satisfactory to the Underwriter and its counsel,
substantially to the effect that:
(i) The Bank has been duly organized and is validly
existing as a national banking association in good standing
under the laws of the United States with full power and
authority (corporate and other) to own its properties and
conduct its business, as presently owned and conducted by it,
and to enter into and perform its obligations under this
Agreement, the Transfer and Administration Agreement and the
Pooling and Servicing Agreement (collectively referred to in
this subsection (e) as the "Agreements"), and the
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Certificates and had at all times, and now has, the power,
authority and legal right to acquire, own and transfer the Re
ceivables;
(ii) The Certificates have been duly authorized,
executed and delivered by the Bank and, when duly
authenticated by the Trustee in accordance with the terms of
the Pooling and Servicing Agreement and delivered to and paid
for by the Underwriter in accordance with the terms of this
Agreement, will be validly issued and outstanding and
entitled to the benefits provided by the Pooling and
Servicing Agreement;
(iii) Each of the Pooling and Servicing Agreement
and the Transfer and Administration Agreement has been duly
authorized, executed and delivered by the Bank and
constitutes the legal, valid and binding agreement of the
Bank enforceable against the Bank in accordance with its
terms, subject, as to enforceability, to (A) the effect of
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating
to or affecting the rights and remedies of creditors
generally, and (B) the application of principles of equity
(regardless of whether considered and applied in a proceeding
in equity or at law) and the rights and powers of the FDIC;
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(iv) This Agreement has been duly authorized,
executed and delivered by the Bank;
(v) The Trust is not now, and immediately following
the sale of the Certificates pursuant to the Underwriting
Agreement will not be, required to register under the 1940
Act;
(vi) No consent, approval, authorization or order of
any governmental agency or body is required for (A) the
execution, delivery and performance by the Bank of its
obligations under the Agreements or the Certificates, or (B)
the issuance or sale of the Certificates, except such as have
been obtained under the Act and as may be required under
state securities or blue sky laws in connection with the
purchase and distribution of the Certificates by the
Underwriter and the filing of Uniform Commercial Code
financing statements with respect to the Receivables;
(vii) To the best knowledge of such counsel, neither
the execution and delivery of the Agreements or the
Certificates by the Bank nor the performance by the Bank of
the transactions therein contemplated nor the fulfillment of
the terms thereof does or will result in any violation of any
statute or regulation or any order or decree of any court or
governmental authority binding upon the Bank or its property,
or conflict with, or result in a breach or violation of any
term or provision of, or result in a default under any of the
terms and provisions of, the Bank's organizational documents
or 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
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effect on the ability of the Bank to perform its obligations
under the Agreements or the Certificates, (B) assert the
invalidity of the Agreements or the Certificates, (C) seek to
prevent the issuance, sale or delivery of the Certificates or
any of the transactions contemplated by the Agreements or (D)
seek to affect adversely the federal income tax or ERISA
attributes of the Certificates described in the Prospectus;
(ix) The Registration Statement and the Prospectus
(except for the financial statements, financial schedules and
other financial and operating data included therein, as to
which such counsel expresses no view) comply as to form with
the Act and the Rules and Regulations;
(x) The Registration Statement has become effective
under the Act, and the Prospectus Supplement will be filed
with the Commission pursuant to Rule 424(b) thereunder; and
(xi) Such counsel has not independently verified
and is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of
the information contained in the Registration Statement and
Prospectus. Based upon discussion with the Bank, its
accountants and others, however, no facts have come to its
attention that cause it to believe that the Prospectus
(except for the financial statements, financial schedules and
other financial and statistical data included therein, as to
which such counsel expresses no view), contains any untrue
statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(f) The Underwriter shall have received a letter from Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the effect
that the Underwriter may rely on its opinion to Xxxxx'x Investors Service, Inc.
("Moody's"), Standard & Poor's Ratings, a
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division of The XxXxxx-Xxxx Companies, Inc.("Standard & Poor's"), and Fitch
-----------------
IBCA, Inc. with respect to certain bank regulatory matters.
(g) The Underwriter shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Bank, addressed to the
Underwriter, dated the Closing Date and satisfactory in form and substance to
the Underwriter and its counsel, to the effect that the Certificates will be
treated as indebtedness for Federal income tax purposes and for Delaware income
tax purposes.
(h) The Underwriter shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, such opinion or
opinions, dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement
and the Transfer and Administration Agreement (collectively
referred to in this subsection (h) as the "Agreements")
----------
constitutes the valid and binding obligation of the Bank,
enforceable against the Bank in accordance with its terms,
except (x) to the extent that the enforceability thereof
may be limited by (a) bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and the rights of creditors of national banking
associations as the same may be applied in the event of the
bankruptcy, insolvency, receivership, reorganization,
moratorium or other similar event in respect of the Bank,
(b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (c) the qualification that certain of the
remedial provisions of the Agreements may be unenforceable
in whole or in part, but the inclusion of such provisions
does not affect the validity of the Agreements taken as a
whole, and the Agreements, together with applicable law,
contain adequate provisions for the practical realization
of the benefits of the security created thereby and (y)
such counsel expresses no opinion as to the enforceability
of any rights to contribution
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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 Underwriter pursuant to this Agreement, will be duly
and validly issued and outstanding and will be entitled to
the benefits of the Pooling and Servicing Agreement;
(iii) This Agreement has been duly authorized,
executed and delivered by the Bank;
(iv) Neither the execution, delivery or
performance by the Bank of the Agreements or this
Agreement, nor the compliance by the Bank with the terms
and provisions thereof or hereof, will contravene any
provision of any applicable law;
(v) Based on such counsel's review of applicable
laws, no governmental approval, which has not been obtained
or taken and is not in full force and effect, is required
to authorize or is required in connection with the
execution, delivery or performance of the Agreements by the
Bank;
(vi) The Certificates, the Pooling and Servicing
Agreement and this Agreement conform in all material
respects to the descriptions thereof contained in the
Prospectus;
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be
registered under the 1940 Act;
(viii) The statements in the Prospectus under
the heading "Certain Legal Aspects of the Receivables", to
the extent that they constitute matters of law or legal
conclusions with respect thereto, have been
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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 Underwriter at which the contents of the Prospectus and related matters
were discussed and, although such counsel need not pass upon, and need not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and shall have made no independent check
or verification thereof, except for those made under the caption "Certain Legal
Aspects of the Receivables" to the extent set forth in paragraph (viii) above,
on the basis of the foregoing, no facts shall have come to such counsel's
attention that shall have led such counsel to believe that the Prospectus, as of
its date, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that such
counsel need not express an opinion or belief with respect to the financial
statements, schedules and other financial information included in such
Prospectus or excluded therefrom.
(i) McGuire, Woods, Battle & Xxxxxx, L.L.P., counsel for The
Bank of New York, a New York banking corporation ("BONY"), in connection with
----
the Agency Agreement, dated as of December 4, 1995, between BONY and the Trustee
(the "Agency Agreement"), and
----------------
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counsel for the Trustee, shall have furnished to the Underwriter its written
opinion, addressed to the Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel, substantially to the
effect that:
(i) BONY is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of New York and has the corporate power
and authority to execute, deliver and perform its
obligations under the Agency Agreement;
(ii) The Certificates have been duly
authenticated by BONY pursuant to the Agency Agreement and
in accordance with the Pooling and Servicing Agreement;
(iii) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power
and authority to execute, deliver and perform its
obligations under the Pooling and Servicing Agreement;
(iv) The Supplement has been duly authorized,
executed and delivered by the Trustee, and the Pooling and
Servicing Agreement constitutes a legal, valid and binding
agreement of the Trustee, enforceable against the Trustee
in accordance with its terms, except (x) as may be limited
by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights of
creditors generally (as such laws would apply in the event
of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect
to, the Trustee), (y) that the enforceability of the
Pooling and Servicing Agreement against the Trustee may be
subject to the application of general principles of equity
(regardless of whether considered or applied in a
proceeding in equity or at law), and (z) that certain
remedial provisions of the Pooling and Servicing Agreement
may be unenforceable, in whole or in part against the
Trustee, but the inclusion of such provisions
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does not affect the validity of the Pooling and Servicing
Agreement, taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contains adequate
provisions for the practical realization of the benefits of
the security provided thereby. Such counsel expresses no
opinion as to the enforceability of any rights to
contribution or indemnification that are violative of
public policy underlying any law, rule or regulation;
(v) The execution and delivery by the Trustee of
the Supplement, and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement, do
not conflict with or result in a violation of (x) any law
or regulation of the United States of America or the State
of Delaware governing the banking or trust activities of
the Trustee or (y) the amended and restated articles of
association or by-laws of the Trustee; and
(vi) The execution and delivery by the Trustee
of the Supplement, and the performance by the Trustee of
its obligations under the Pooling and Servicing Agreement,
do not require any approval, authorization or other action
by, or filing with, any governmental authority of the
United States of America or the State of Delaware having
jurisdiction over the banking or trust activities of the
Trustee, except such as have been obtained, taken or made.
(j) Xxxxxxxx, Xxxxxx & Xxxxxx, counsel for the Owner Trust in
connection with the Transfer and Administration Agreement and the Indenture,
shall have furnished to the Underwriter its written opinion, addressed to the
Underwriter and dated the Closing Date, in form and substance satisfactory to
the Underwriter and its counsel, substantially to the effect that:
(i) The Owner Trust is a business trust duly
formed, validly existing and in good standing under the
laws of the State of Delaware and has the power and
authority to execute, deliver and perform its
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obligations under the Transfer and Administration Agreement
and the Indenture;
(ii) The Transfer and Administration Agreement,
the Indenture and the secured notes issued by the Owner
Trust pursuant to the Indenture (the "Notes") have been
-----
duly authorized, executed and delivered by the Owner Trust,
and the Transfer and Administration Agreement, the
Indenture and the Notes constitute legal, valid and binding
agreements of the Owner Trust, enforceable against the
Owner Trust in accordance with their respective terms,
except (x) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally (as such
laws would apply in the event of the insolvency,
receivership, conservatorship or reorganization of, or
other similar occurrence with respect to, the Owner
Trustee), (y) that the enforceability of the Transfer and
Administration Agreement, the Indenture and the Notes
against the Owner Trust may be subject to the application
of general principles of equity (regardless of whether
considered or applied in a proceeding in equity or at law),
and (z) that certain remedial provisions of the Transfer
and Administration Agreement and the Indenture may be
unenforceable, in whole or in part against the Owner Trust,
but the inclusion of such provisions does not affect the
validity of the Transfer and Administration Agreement and
the Indenture, taken as a whole, and the Transfer and
Administration Agreement, together with applicable law,
contains adequate provisions for the practical realization
of the benefits of the security provided thereby. Such
counsel expresses no opinion as to the enforceability of
any rights to contribution or indemnification that are
violative of public policy underlying any law, rule or
regulation;
(iii) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the
Indenture and the Notes and the performance by the Owner
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Trust of its obligations under the Transfer and
Administration Agreement, the Indenture and the Notes do
not conflict with or result in a violation of (x) any law
or regulation of the State of Delaware applicable to the
Owner Trust, or (y) the Trust Agreement; and
(iv) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the
Indenture and the Notes and the performance by the Owner
Trustee of its obligations under the Transfer and
Administration Agreement, the Indenture and the Notes do
not require any approval, authorization or other action by,
or filing with, any governmental authority of the State of
Delaware having jurisdiction over the Owner Trust, except
such as have been obtained, taken or made.
(k) Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner Trustee
in connection with the Trust Agreement, shall have furnished to the Underwriter
its written opinion, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the Underwriter and its counsel,
substantially to the effect that:
(i) The Owner Trustee is a banking corporation
duly organized, validly existing and in good standing under
the laws of the State of Delaware and has the corporate
power and authority to execute, deliver and perform its
obligations under the Trust Agreement;
(ii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee,
and the Trust Agreement constitutes a legal, valid and
binding agreement of the Owner Trustee, enforceable against
the Owner Trustee in accordance with its terms, except (x)
as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally (as such
laws would apply in the event of the insolvency,
receivership, conservatorship or reorganization of, or
other similar occurrence
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23
with respect to, the Owner Trustee), (y) that the
enforceability of the Trust Agreement against the Owner
Trustee may be subject to the application of general
principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), and (z) that
certain remedial provisions of the Trust Agreement may be
unenforceable, in whole or in part against the Owner
Trustee, but the inclusion of such provisions does not
affect the validity of the Trust Agreement, taken as a
whole, and the Trust Agreement, together with applicable
law, contains adequate provisions for the practical
realization of the benefits of the security provided thereby.
Such counsel expresses no opinion as to the enforceability
of any rights to contribution or indemnification that are
violative of public policy underlying any law, rule or
regulation;
(iii) The execution and delivery by the Owner
Trustee of the Trust Agreement, and the performance by the
Owner Trustee of its obligations under the Trust Agreement,
do not conflict with or result in a violation of (x) any
law or regulation of the United States of America or the
State of Delaware governing the banking or trust activities
of the Owner Trustee, or (y) the organizational documents
of the Owner Trustee; and
(iv) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the
Owner Trustee of its obligations under the Trust Agreement
do not require any approval, authorization or other action
by, or filing with, any governmental authority of the
United States of America or the State of Delaware having
jurisdiction over the banking or trust activities of the
Owner Trustee, except such as have been obtained, taken or
made.
(l) The Underwriter shall have received evidence satisfactory
to the Underwriter and its counsel that, on or before the Closing Date, UCC-1
financing statements have been filed in the appropriate filing
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24
offices of the State of Delaware and such other jurisdictions as counsel to the
Bank deems appropriate to reflect the interest of the Trustee in the
Receivables.
(m) The Class A Certificates shall be rated "AAA" by Standard
& Poor's, "Aaa" by Xxxxx'x and "AAA" by Fitch IBCA, Inc. ("Fitch") and the Class
B Certificates shall be rated at least "A" by Standard & Poor's, at least "A2"
by Xxxxx'x and at least "A+" by Fitch on the Closing Date, and letters to such
effect dated the Closing Date shall have been received from each Rating Agency.
(n) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident thereto shall be
satisfactory in form and substance to the Underwriter and its counsel, and the
Underwriter and its counsel shall have received such information, certificates
and documents as any of them may reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) The Bank agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act and under Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities to which they may
become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or in any revision or amendment thereof or supplement
thereto or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Bank will not be liable in any such case to the
-----------------
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in
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25
conformity with written information furnished to the Bank by the Underwriter
specifically for use therein or any revision or amendment thereof or supplement
thereto. The foregoing indemnification with respect to any untrue statement or
omission in any preliminary prospectus or prospectus supplement shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Bank shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Certificates to such person and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability provided that the Bank shall have identified to the
Underwriter in writing such defect prior to the delivery of such written
confirmation by the Underwriter to such person.
(b) The Underwriter agrees to indemnify and hold harmless the
Bank, its directors, each of the Bank's officers who signed the Registration
Statement and each person, if any, who controls the Bank within the meaning of
Section 15 of the Act and under Section 20 of the Exchange Act against any and
all losses, claims, damages or liabilities to which they may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or in any revision or amendment thereof or supplement thereto or
any related preliminary prospectus or prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Bank by the Underwriter specifically for use therein or any revision or
amendment thereof or supplement thereto, and agrees to reimburse such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with
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investigating or defending any such loss, claim, damage or liability or action
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 7 of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
other than under this Section 7. In the event that any such action is brought
against any indemnified party and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnifying party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Bank on the one hand and the Underwriter on the other from the offering
of the
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Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Bank on the one hand and of the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one hand and
the Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Bank bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Bank or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Certificates purchased by
it hereunder. The Bank and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of any of the equitable considerations referred to above in this subsection (d).
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Survival. The Bank and the Underwriter agree that the
--------
respective representations, warranties and agreements made by them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed
to be relied upon, in the case of the Bank, by
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the Underwriter and, in the case of the Underwriter, by the Bank,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of the Bank or the Underwriter, and that the respective representations,
warranties and agreements (including without limitation the indemnity and
contribution agreement) made by the Bank and the Underwriter herein or in any
such certificate or other instrument shall survive the delivery of and payment
for the Certificates.
9. Termination. This Agreement may be terminated in the sole
-----------
discretion of the Underwriter by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 9 shall be without liability of any party to
any other party except as provided in Sections 5 and 7 hereof.
10. Representation of the Underwriter. The Underwriter represents
---------------------------------
and warrants to, and agrees with, the Bank that (w) it has only issued or passed
on and shall only issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Certificates to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or who is a person to whom
the document may otherwise lawfully be issued or passed on, (x) it has complied
and shall comply with all applicable provisions of the Financial Services Act
1986 and other applicable laws and regulations with respect to anything done by
it in relation to the Certificates in, from or otherwise involving the United
Kingdom and (y) if the Underwriter is an authorized person under the Financial
Services Act 1986, it has only promoted and shall only promote (as that term is
defined in Regulation 1.02 of the Financial Services (Promotion of Unregulated
Schemes) Regulations 1991) to any person in the United Kingdom the scheme
described in the Prospectus if that person is of a kind described either in
Section 76(2) of the Financial Services Act 1986 or in Regulation 1.04 of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991.
11. Notices. All communications provided for or permitted
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hereunder shall be in writing and shall be
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deemed to have been duly given if personally delivered, sent by overnight
courier or mailed by registered mail, postage prepaid and return receipt
requested, or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, if to (a) the Underwriter, addressed to X.X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Syndicate Desk, or to such other address as the Underwriter may designate in
writing to the Bank or (b) the Bank, addressed to the Bank at 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Executive Vice
President and General Counsel, telephone: (000) 000-0000, telecopier: (302)
884-8361, with a copy to Banc One Corporation, 000 Xxxx Xxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Transaction Manager, Structured
Finance, telephone: (000) 000-0000, telecopier: (000) 000-0000.
12. Secondary Trust or Special Purpose Vehicle. The Underwriter
------------------------------------------
represents that it will not, at any time that the Underwriter is acting as an
"underwriter" (as defined in Section 2(11) of the Act) with respect to the
Certificates, transfer, deposit or otherwise convey any Certificates into a
trust or other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interests in, such
Certificates without the prior written consent of the Bank.
13. 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.
14. Severability of Provisions. Any covenant, provision,
--------------------------
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
15. 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
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30
agreements and understandings whatsoever relating to such matters and
transactions.
16. 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.
17. Headings. The headings in this Agreement are for the purposes
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
18. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which shall together
constitute one instrument.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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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. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing Underwriting Agreement is hereby
agreed to as of the date first above written.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
