Exhibit 1.1
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BANK ONE ISSUANCE TRUST
FIRST USA BANK, NATIONAL ASSOCIATION
(Transferor and Servicer)
FORM OF UNDERWRITING AGREEMENT
(Standard Terms)
[ ], 2002
[ ],
As Underwriter or as the Representative
of the Underwriters named in the
Terms Agreement
[ ]
[ ]
Ladies and Gentlemen:
Bank One Issuance Trust, a Delaware statutory business
trust (the "Issuer"), and First USA Bank, National Association (the
"Bank"), as originator (in such capacity, the "Originator") and beneficiary
(in such capacity, the "Beneficiary") of the Issuer, propose to sell the
notes of the series, classes and tranches designated in the applicable
Terms Agreement (as hereinafter defined) (the "Notes"). The Notes will be
issued pursuant to the Indenture, as supplemented by the Asset Pool [One]
Supplement and the Indenture Supplement, each dated as of [ ], 2002, and a
Terms Document having the date stated in the applicable Terms Agreement (as
so supplemented and as otherwise modified or amended from time to time, the
"Indenture"), between the Issuer and Xxxxx Fargo Bank Minnesota, N.A., as
trustee (in such capacity, the "Indenture Trustee"). The Issuer is operated
pursuant to a Trust Agreement, dated as of [ ], 2002, between the Bank, as
Beneficiary, and Wilmington Trust Company, as owner trustee (the "Owner
Trustee") (the "Trust Agreement"). The Notes will be secured pursuant to
the Asset Pool One Supplement, dated as of [ ], 2002 between the Issuer and
Xxxxx Fargo Bank Minnesota, N.A., as collateral agent (the "Collateral
Agent") (the "Asset Pool Supplement") by certain assets of the Issuer,
initially including the Collateral Certificate and, subsequently, possibly
including Receivables, as discussed below (the "Collateral").
The Bank transfers credit card receivables to the First
USA Credit Card Master Trust (the "First USA Credit Card Master Trust")
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated
as of [ ], 2002 (as may be further amended from time to time, the "Pooling
and Servicing Agreement"), as supplemented by the applicable Series
Supplement (the "Series Supplement"; references herein to the Pooling and
Servicing Agreement shall mean, unless otherwise specified, the Pooling and
Servicing Agreement as supplemented by the Series Supplement), having the
date stated in the applicable Terms Agreement, among the Bank, as
transferor (in such capacity, the "Transferor") and as servicer (in such
capacity, the "Servicer"), and The Bank of New York (Delaware), as trustee
(in such capacity, the "First USA Master Trust Trustee"). The assets of the
First USA Credit Card Master Trust include, among other things, receivables
("Receivables") arising under certain revolving credit card accounts (the
"Accounts"). Pursuant to the Pooling and Servicing Agreement and the
Transfer and Servicing Agreement, among the Bank, as Transferor, Servicer
and Administrator, and the Issuer, dated as of [ ], 2002 (as amended from
time to time, the "Transfer and Servicing Agreement"), the Bank has caused
the First USA Credit Card Master Trust to issue to the Issuer a collateral
certificate (the "Collateral Certificate"). The Collateral Certificate is
an investor certificate under the Pooling and Servicing Agreement that
represents undivided interests in certain assets of the First USA Credit
Card Master Trust.
The Notes designated in the applicable Terms Agreement
will be sold in a public offering by the Issuer through [ ], as
underwriter, or through certain underwriters which include [ ], one or more
of which may with [ ] act as the representative of such underwriters listed
on Schedule I to the applicable Terms Agreement (any underwriter through
which Notes are sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the
"Underwriters;" each representative thereof may be referred to herein
together as "Representative," which, if the context herein does require,
shall include [ ] in its capacity as Underwriter of any Notes or as
Representative). Notes sold to the Underwriters for which [ ] is the
Representative shall be sold pursuant to a Terms Agreement by and between
the Bank and the Representative, a form of which is attached hereto as
Exhibit A (a "Terms Agreement"), which incorporates by reference this
Underwriting Agreement (the "Agreement," which may include the applicable
Terms Agreement if the context so requires). Any Notes sold pursuant to any
Terms Agreement may include the benefits of a reserve account, letter of
credit, surety bond, cash collateral account, cash collateral guaranty,
collateral interest, guaranteed rate agreement, maturity guaranty facility,
tax protection agreement, interest rate swap, spread account or other
contract or agreement for the benefit of the Noteholders of such Series
("Credit Enhancement"). The term "applicable Terms Agreement" means the
Terms Agreement dated the date hereof. To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in
the Indenture or the Pooling and Servicing Agreement. Unless otherwise
stated herein or in the applicable Terms Agreement, as the context
otherwise requires or if such term is otherwise defined in the Indenture or
the Pooling and Servicing Agreement, each capitalized term used or defined
herein or in the applicable Terms Agreement shall relate only to the Notes
designated in the applicable Terms Agreement and no other Series, Class or
Tranche of Notes issued by the Issuer.
The Bank has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Act"), a shelf registration
statement on Form S-3 (having the registration number stated in the
applicable Terms Agreement), including a form of prospectus, relating to
the Notes and the Collateral Certificate. The registration statement as
amended has been declared effective by the Commission. If any
post-effective amendment has been filed with respect thereto, prior to the
execution and delivery of the applicable Terms Agreement, the most recent
such amendment has been declared effective by the Commission. Such
registration statement, as amended at the time of effectiveness, including
all material incorporated by reference therein and including all
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Act, is referred to
in this Agreement as the "Registration Statement." The Bank proposes to
file with the Commission pursuant to Rule 424(b) ("Rule 424(b)") under the
Act a supplement (the "Prospectus Supplement") to the prospectus included
in 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) is hereinafter referred to as
the "Basic Prospectus") relating to the Notes and the method of
distribution thereof. The Basic Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, is hereinafter
referred to as the "Prospectus."
Upon the execution of the applicable Terms Agreement, the
Bank agrees with the Underwriters as follows:
1. Subject to the terms and conditions herein set forth
and in the applicable Terms Agreement, the Bank agrees to cause the Issuer
to sell and deliver the Notes to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter
stated, agrees to purchase, severally and not jointly, from the Issuer the
respective principal amount of the Notes set forth opposite such
Underwriter's name in the applicable Terms Agreement. The Notes are to be
purchased by the Underwriters at the purchase price(s) set forth in such
Terms Agreement.
2. The Bank understands that the Underwriters intend (i)
to make a public offering of their respective portions of the Notes as soon
after the Registration Statement and this Agreement and the applicable
Terms Agreement have become effective as in the judgment of the
Representative is advisable and (ii) initially to offer the Notes upon the
terms set forth in the Prospectus.
3. Unless otherwise provided in the applicable Terms
Agreement, payment for the Notes shall be made to the Bank or to its order
by wire transfer of same day funds at 10:00 A.M., New York City time, on
the Closing Date (as hereinafter defined), or at such other time on the
same or such other date, not later than the fifth Business Day thereafter,
as the Representative and the Bank may agree upon in writing. The time and
date of such payment for the Notes are referred to herein as the "Closing
Date." As used herein, the term "Business Day" means any day other than a
day on which banks are permitted or required to be closed in New York City.
Unless otherwise provided in the applicable Terms
Agreement, payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of
the Notes registered in the name of Cede & Co. as nominee of The Depository
Trust Company and in such denominations as the Representative shall request
in writing not later than two full Business Days prior to the Closing Date,
with any transfer taxes payable in connection with the transfer to the
Underwriters of the Notes duly paid by the Bank. The Notes will be made
available for inspection and packaging by the Representative at the office
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date.
4. Upon the execution of the applicable Terms Agreement,
the Bank represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3
(having the registration number stated in the applicable Terms Agreement),
including the Prospectus and such amendments thereto as may have been
required on the date of the applicable Terms Agreement, relating to the
Notes, has been filed with the Commission and such Registration Statement
as amended has become effective. The conditions to the use of a shelf
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Bank and the Registration Statement;
(b) No stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Bank, threatened by
the Commission, and on the effective date of the Registration Statement,
the Registration Statement and the Prospectus conformed in all respects to
the requirements of the Act and the rules and regulations of the Commission
under the Act (the "Rules and Regulations"), and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of the applicable Terms Agreement, the
Registration Statement and the Prospectus conform, and at the time of
filing of the Prospectus pursuant to Rule 424(b) such documents will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents will include on
the date of the applicable Terms Agreement and on the Closing Date any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Bank in writing by such Underwriter through the Representative expressly
for use therein;
(c) As of the Closing Date, the representations
and warranties of the Bank, as Transferor and Servicer, in the Pooling and
Servicing Agreement will be true and correct in all material respects;
(d) 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 power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and to execute, deliver and perform this Agreement and the
applicable Terms Agreement and to authorize the sale of the Notes, and to
consummate the transactions contemplated by this Agreement and the
applicable Terms Agreement and to consummate the transactions contemplated
by this Agreement and the applicable Terns Agreement and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Bank and its
subsidiaries, taken as a whole;
(e) The Collateral Certificate has been duly
authorized, [and when executed, issued and delivered pursuant to the
Pooling and Servicing Agreement, duly authenticated by the First USA Master
Trust Trustee and delivered by the Bank, as Beneficiary, to the Owner
Trustee on behalf of the Issuer pursuant to the Trust Agreement, will be]
duly and validly executed, authenticated, issued and delivered and entitled
to the benefits provided by the Pooling and Servicing Agreement. Each
increase in the Invested Amount of the Collateral Certificate will have
been authorized and effected in accordance with the Pooling and Servicing
Agreement; each of the Pooling and Servicing Agreement, this Agreement and
the applicable Terms Agreement have been duly authorized by the Bank, and,
when executed and delivered by the bank, as Transferor and Servicer, and
the First USA Master Trust Trustee (in the case of the Pooling and
Servicing Agreement), each of the Pooling and Servicing Agreement, this
Agreement and the applicable Terms Agreement will constitute a valid and
binding agreement of the Bank; and the Collateral Certificate and the
Pooling and Servicing Agreement conform to the descriptions thereof in the
Prospectus in all material respects;
(f) No consent, approval, authorization or order
of, or filing with, any court or governmental agency or governmental body
is required to be obtained or made by the Bank for the consummation of the
transactions contemplated by this Agreement, the applicable Terms Agreement
or the Pooling and Servicing Agreement, except such as have been obtained
and made under the Act, such as may be required under state securities laws
and the filing of any financing statements required to perfect the First
USA Credit Card Master Trust's interest in the Receivables or the Indenture
Trustee's or Collateral Agent's interest in the Collateral;
(g) The Bank is not in violation of its
organizational documents nor in default in its performance or observance of
any obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or its properties are
bound which would have a material adverse effect on the transactions
contemplated herein or in the Pooling and Servicing Agreement;
(h) The execution, delivery and performance of
this Agreement, the applicable Terms Agreement and the Pooling and
Servicing Agreement and compliance with the terms and provisions thereof
will not result in a material breach or violation of any of the terms and
provisions of, or constitute a material default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Bank, or any of its properties or any agreement or
instrument to which the Bank is a party or by which the Bank is bound or to
which any of the properties of the Bank is subject, or the organizational
documents of the Bank and the Bank has full power and authority to enter
into this Agreement, the applicable Terms Agreement and the Pooling and
Servicing Agreement;
(i) Other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Bank, threatened to which any of the Bank or its
subsidiaries is or may be a party or to which any property of the Bank or
its subsidiaries is or may be the subject which, if determined adversely to
the Bank, could individually or in the aggregate reasonably be expected to
have a material adverse effect on (i) the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Bank and its subsidiaries, as applicable, taken as a
whole or (ii) the interests of the holders of the Notes; and there are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Basic Prospectus which are not filed or
described as required;
(j) This Agreement has been duly authorized,
executed and delivered by the Bank and when executed and delivered by the
Bank, each of this Agreement and the applicable Terms Agreement will
constitute a valid and binding agreement of the Bank.
5. Upon the execution of the applicable Terms Agreement,
the Issuer represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3
(having the registration number stated in the applicable Terms Agreement),
including the Prospectus and such amendments thereto as may have been
required on the date of the applicable Terms Agreement, relating to the
Notes, has been filed with the Commission and such Registration Statement
as amended has become effective. The conditions to the use of a shelf
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Issuer and the Registration Statement;
(b) No stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Issuer, threatened
by the Commission, and on the effective date of the Registration Statement,
the Registration Statement and the Prospectus conformed in all respects to
the requirements of the Act and the rules and regulations of the Commission
under the Act (the "Rules and Regulations"), and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of the applicable Terms Agreement, the
Registration Statement and the Prospectus conform, and at the time of
filing of the Prospectus pursuant to Rule 424(b) such documents will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents will include on
the date of the applicable Terms Agreement and on the Closing Date any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Issuer in writing by such Underwriter through the Representative expressly
for use therein;
(c) As of the Closing Date, the representations
and warranties of the Issuer in the Indenture will be true and correct in
all material respects;
(d) The Issuer has been duly formed and is
validly existing as a statutory trust in good standing under the laws of
the State of Delaware, with power and authority to own its properties and
conduct its business as described in the Prospectus and to execute, deliver
and perform the Indenture, and to authorize the issuance of the Notes, and
to consummate the transactions contemplated by the Indenture;
(e) As of the Closing Date, the Notes have been
duly authorized, and, when executed, issued and delivered pursuant to the
Indenture, duly authenticated by the Indenture Trustee and paid for by the
Underwriters in accordance with this Agreement and the applicable Terms
Agreement, will be duly and validly executed, authenticated, issued and
delivered and entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized by the Issuer and, when executed and
delivered by the Issuer and the Indenture Trustee (in the case of the
Indenture), each of the Indenture, this Agreement and the applicable Terms
Agreement will constitute a valid and binding agreement of the Issuer; and
the Notes and the Indenture conform to the descriptions thereof in the
Prospectus in all material respects;
(f) No consent, approval, authorization or order
of, or filing with, any court or governmental agency or governmental body
is required to be obtained or made by the Issuer for the consummation of
the transactions contemplated by this Agreement, the applicable Terms
Agreement, the Asset Pool Supplement or the Indenture, except such as have
been obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the First USA Credit Card Master Trust's interest in the
Receivables or the Collateral Agent's interest in the Collateral;
(g) The Issuer is not in violation of its
organizational documents or in default in its respective performance or
observance of any obligation, agreement, covenant or condition contained in
any agreement or instrument to which it is a party or by which it or its
properties are bound which would have a material adverse effect on the
transactions contemplated herein or in the Indenture. The execution,
delivery and performance of this Agreement, the applicable Terms Agreement,
the Indenture, the Asset Pool Supplement and the issuance and delivery of
the Collateral Certificate and the Notes and compliance with the terms and
provisions thereof will not result in a material breach or violation of any
of the terms and provisions of, or constitute a material default under, any
statute, rule, regulation or order of any governmental agency or body or
any court having jurisdiction over the Issuer or any of its properties or
any agreement or instrument to which the Issuer is a party or by which the
Issuer is bound or to which any of the properties of the Issuer is subject,
or the organizational documents of the Issuer; and the Issuer has full
power and authority to authorize, issue and sell the Notes as contemplated
by this Agreement, the applicable Terms Agreement and the Indenture and to
enter into the Indenture and the Asset Pool Supplement;
(h) Other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Issuer, threatened to which any of the Issuer or
its subsidiaries is or may be a party or to which any property of the
Issuer or its subsidiaries is or may be the subject which, if determined
adversely to the Issuer, could individually or in the aggregate reasonably
be expected to have a material adverse effect on (i) the general affairs,
business, prospects, management, financial position, equity or results of
operations of the Issuer and its subsidiaries, taken as a whole, and the
interests of the holders of the Notes, or (ii) the interests of the holders
of the Notes; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Basic
Prospectus which are not filed or described as required; and
(i) This Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by the Issuer
and when executed and delivered by the Issuer, each of this Agreement and
the applicable Terms Agreement will constitute a valid and binding
agreement of the Issuer.
6. Upon the execution of the applicable Terms Agreement,
the Bank and the Issuer, jointly and severally covenant and agree with the
several Underwriters that:
(a) Immediately following the execution of this
Agreement, the Bank and the Issuer will prepare a Prospectus Supplement
setting forth the amount of Notes covered thereby and the terms thereof not
otherwise specified in the Basic Prospectus, the price at which such Notes
are to be purchased by the Underwriters, the initial public offering price,
the selling concessions and allowances and such other information as the
Bank and the Issuer deem appropriate. The Bank and the Issuer 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 with the Commission pursuant to Rule 424(b).
(b) The Issuer will deliver (or the Bank will
cause the Issuer to deliver), at the expense of the Bank, to the
Representative, two signed copies of the Registration Statement and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement and each
amendment thereto, in each case without exhibits and, during the period
mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto)
as the Representative may reasonably request.
(c) Before filing any amendment or supplement to
the Registration Statement or the Prospectus, whether before or after the
time the Registration Statement becomes effective, the Bank or the Issuer
will furnish to the Representative a copy of the proposed amendment or
supplement.
(d) The Bank and the Issuer will advise the
Representative promptly, and will confirm such advice in writing, (i) when
any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Bank or the Issuer of any notification with respect to
any suspension of the qualification of the Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such
stop order or notification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(e) The Bank will, if during such period of time
after the first date of the public offering of the Notes as in the opinion
of counsel for the Underwriters a Prospectus relating to the Notes is
required by law to be delivered in connection with sales by an Underwriter
or dealer, (i) any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or (ii) it is necessary to amend or
supplement the Prospectus to comply with the law, forthwith prepare and
furnish, at the expense of the Bank, to the Underwriters and to the dealers
(whose names and addresses the Representative will furnish to the Bank and
the Issuer) to which Notes may have been sold by the Representative on
behalf of the Underwriters and to any other dealers upon request, a copy of
such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with the
law.
(f) The Issuer will endeavor to qualify (or the
Bank will cause the Issuer to qualify) the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representative
shall reasonably request and will continue such qualification in effect so
long as reasonably required for distribution of the Notes and to pay all
fees and expenses (including fees and disbursements of counsel to the
Underwriters) reasonably incurred in connection with such qualification and
in connection with the determination of the eligibility of the Notes for
investment under the laws of such jurisdictions as the Representative may
designate; provided, however, that neither the Bank nor the Issuer shall be
obligated to qualify to do business in any jurisdiction in which it is not
currently so qualified; and provided further that neither the Bank nor the
Issuer shall be required to file a general consent to service of process in
any jurisdiction.
(g) On or before December 31 of the year
following the year in which the Closing Date occurs, the Bank will cause
the Issuer to make generally available to Noteholders and to the
Representative as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Issuer occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the Commission promulgated thereunder.
(h) So long as any of the Notes are outstanding,
the Issuer or the Bank will furnish to the Representative copies of all
reports or other communications (financial or other) furnished to holders
of the Notes and copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange.
(i) For a period from the date of this Agreement
until the retirement of the Notes, the Bank, as Servicer, will furnish to
you copies of each certificate and the annual statements of compliance
delivered to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the First USA Credit Card
Master Trust Trustee pursuant to Article III of the Pooling and Servicing
Agreement, by first-class mail promptly after such statements and reports
are furnished to the First USA Master Trust Trustee.
(j) During the period beginning on the date
hereof and continuing to and including the Closing Date, neither the Bank
nor the Issuer will offer, sell, contract to sell or otherwise dispose of
any credit card backed securities with the same term and other
characteristics identical to the Notes without the prior written consent of
the Representative.
(k) The Bank will cause the Notes to be
registered in a timely manner pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the Indenture to be qualified
pursuant to the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(l) To the extent, if any, that the rating
provided with respect to the Notes by the rating agency or rating agencies
rating the Notes (each, a "Note Rating Agency") is conditional upon the
furnishing of documents or the taking of any other reasonable action by the
Bank or the Issuer agreed upon on or prior to the Closing Date, the Bank or
the Issuer, as applicable, shall furnish such documents and take any such
other reasonable action.
7. The Bank will pay all costs and expenses incident to
the performance of its obligations and the obligations of the Issuer under
this Agreement and the applicable Terms Agreement, including, without
limiting the generality of the foregoing, (i) all costs and expenses
incident to the preparation, issuance, execution, authentication and
delivery of the Notes, (ii) all costs and expenses incident to the
preparation, printing and filing under the Act or the Exchange Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto),
(iii) all costs and expenses incurred in connection with the registration
or qualification and determination of eligibility for investment of the
Notes under the laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the Underwriters and their
disbursements), (iv) all costs and expenses related to any filing with the
National Association of Securities Dealers, Inc., (v) all costs and
expenses in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the Indenture and any Blue
Sky Memorandum and the furnishing to Underwriters and dealers of copies of
the Registration Statement and the Prospectus as herein provided, (vi) the
reasonable fees and disbursements of the Bank's counsel and accountants,
(vii) the reasonable fees and disbursements of the accountants and (viii)
all costs and expenses payable to each Note Rating Agency in connection
with the rating of the Notes, except that the Underwriters agree to
reimburse the Bank for an amount, if any, specified in the applicable Terms
Agreement on the Closing Date for application toward such expenses. It is
understood that, except as specifically provided in Sections 7, 9, 10 and
13 of this Agreement, the Underwriters will pay all of their own fees,
costs and expenses (including the fees and disbursements of its counsel),
transfer taxes and any advertising expenses in connection with sales or
offers from the Underwriters to third parties.
8. The several obligations of the Underwriters hereunder
are subject to the performance by the Bank and the Issuer of their
respective obligations hereunder and under the applicable Terms Agreement
and to the following additional conditions:
(a) On or prior to the date of this Agreement,
you shall have received a letter, dated the date of the applicable Terms
Agreement, of KPMG, Certified Public Accountants (or such other independent
accountants as shall be named in the applicable Terms Agreement) confirming
that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating
that the engagement to apply agreed-upon procedures was performed in
accordance with the standards established by the American Institute of
Certified Public Accountants, and substantially in the form heretofore
agreed and otherwise in form and in substance satisfactory to you and your
counsel.
(b) The Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Rules and Regulations and in accordance
with Section 6(a) of this Agreement; and, as of the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or,
to the knowledge of the Bank or the Issuer, threatened by the Commission;
and all requests for additional information from the Commission with
respect to the Registration Statement shall have been complied with to the
satisfaction of the Representative.
(c) The representations and warranties of the
Bank and the Issuer contained herein are true and correct in all material
respects on and as of the Closing Date as if made on and as of the Closing
Date, and each of the Bank and the Issuer shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder and, as applicable, under the applicable Terms Agreement at or
prior to the Closing Date.
(d) The Representative shall have received, with
respect to the Bank, an opinion of the Chief Legal Officer or a Deputy
General Counsel of BANK ONE CORPORATION, or other officer of the Bank
acceptable to the Representative, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative and its
counsel, with respect to general corporate matters.
(e) The Representative shall have received an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for
the Bank and the Issuer, subject to customary qualifications, assumptions,
limitations and exceptions, dated the Closing Date, in form and substance
reasonably satisfactory to the Representative and its counsel, with respect
to general corporate matters, the validity of the Notes, the Registration
Statement, the Prospectus Supplement and the Prospectus, the effectiveness
of such Registration Statement and the information contained in each of the
Registration Statement, the Prospectus Supplement and the Prospectus.
Such counsel also shall state that they have participated
in conferences with representatives of the Bank and its accountants, the
Underwriters and counsel to the Underwriters concerning the Registration
Statement and the Prospectus and have considered the matters required to be
stated therein and the matters stated therein, although they are not
independently verifying the accuracy, completeness or fairness of such
statements and based upon and subject to the foregoing, nothing has come to
such counsel's attention to cause such counsel to believe that the
Registration Statement (excluding any exhibits filed therewith), at the
time it became effective, contained an untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, as of the Closing Date, contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (it being
understood that such counsel has not been requested to and does not make
any comment in this paragraph with respect to the financial statements,
supporting schedules and other financial or statistical information
contained in the Registration Statement or the Prospectus).
(f) The Representative shall have received an
opinion or opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Bank and the Issuer, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative and its
counsel, with respect to certain matters relating to the transfer of the
Receivables to the First USA Credit Card Master Trust and the perfection of
the First USA Credit Card Master Trust's interest in the Receivables, the
transfer of the Collateral Certificate from the Bank to the Issuer and the
perfection of the Issuer's interest in the Collateral Certificate, and the
pledge of the Collateral Certificate by the Issuer to the Collateral Agent
and the perfection of the Collateral Agent's interest in the Collateral
Certificate. In addition, the Representative shall have received a reliance
letter with respect to any opinion that the Bank is required to deliver to
the Note Rating Agency.
(g) The Representative shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank and
the Issuer, such opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative, with respect
to the applicability of certain provisions of the Federal Deposit Insurance
Act, as amended by the Financial Institutions, Reform, Recovery and
Enforcement Act of 1989 with respect to the effect of receivership on the
Bank's security interest in the Receivables and the Issuer's security
interest in the Collateral Certificate, and with respect to other related
matters in a form previously approved by you and your counsel. In addition,
the Representative shall have received a reliance letter with respect to
any opinion that the Bank is required to deliver to the Note Rating Agency.
(h) The Representative shall have received an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel
for the Bank and the Issuer, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative and its
counsel, that (i) the Notes will be characterized as debt for Federal
income tax purposes; (ii) the Issuer will not be, and the issuance of the
Notes will not cause any master trust to be, classified as an association,
or publicly traded partnership, taxable as a corporation for Federal income
tax purposes; and (iii) the statements in the Prospectus under "Federal
Income Tax Consequences," insofar as such statements constitute a summary
of the U.S. legal matters or documents referred to therein, fairly present
such legal matters or documents.
(i) The Representative shall have received an
opinion of Xxxxxxx Xxxxx, counsel to the First USA Master Trust Trustee,
subject to customary qualifications, assumptions, limitations and
exceptions, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, with respect to general
corporate matters relating to the First USA Master Trust Trustee.
(j) The Representative shall have received an
opinion of Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee, subject
to customary qualifications, assumptions, limitations and exceptions dated
the Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, with respect to general corporate matters
relating to the Owner Trustee.
(k) The Underwriters shall have received an
opinion of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the
Issuer, subject to customary qualifications, assumptions, limitations and
exceptions dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, with respect to certain matters
relating to the Issuer and the establishment thereof.
(l) The Representative shall have received a
certificate, dated the Closing Date, of a Vice President or more senior
officer of the Bank in which such officer, to his or her knowledge after
due inquiry, shall state that the representations and warranties of the
Bank in this Agreement are true and correct in all material respects on and
as of the Closing Date, that the Bank has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that the representations and warranties of
the Bank, as Transferor in the Pooling and Servicing Agreement are true and
correct in all material respects as of the dates specified in the Pooling
and Servicing Agreement, that the Registration Statement has become
effective, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are threatened by the Commission and that,
subsequent to the date of the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Bank's credit card business except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(m) The Representative shall have received a
certificate, dated the Closing Date, of an authorized representative of the
Issuer in which such representative, to his or her knowledge after due
inquiry, shall state that the representations and warranties of the Issuer
in this Agreement are true and correct in all material respects on and as
of the Closing Date, that the Issuer has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
and under the applicable Terms Agreement at or prior to the Closing Date,
that the representations and warranties of the Issuer in the Indenture are
true and correct in all material respects as of the dates specified in the
Indenture, that the Registration Statement has become effective, that no
stop order suspending the effectiveness of the Registration Statement have
been issued and no proceedings for that purpose have been issued or are
threatened by the Commission and that, subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Issuer's business except as set
forth in or contemplated by the Prospectus or as described in such
certificate.
(n) The Underwriters shall have received an
opinion of Xxxxxxx and Xxxxxx, counsel to the Indenture Trustee, subject to
customary qualifications, assumptions, limitations and exceptions dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, with respect to general corporate matters.
(o) You shall have received a letter, dated the
Closing Date, of KPMG which meets the requirements of subsection (a) of
this Section 8.
(p) You shall have received evidence
satisfactory to you that the Notes shall be rated in accordance with the
applicable Terms Agreement by each Note Rating Agency.
The Bank will furnish you, or cause you to be furnished
with, such number of conformed copies of such opinions, certificates,
letters and documents as you reasonably request.
9. (a) The Bank and the Issuer, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if
any, who controls such 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 based upon any untrue statement or alleged untrue statement
of a 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 expense 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 none of the
Bank or the Issuer will 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 or the Issuer by any Underwriter
specifically for use therein or any revision or amendment thereof or
supplement thereto. The foregoing indemnity with respect to any untrue
statement or omission in any preliminary prospectus or prospectus
supplement shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Notes
if a copy of the Prospectus (as then amended or supplemented if the Bank or
the Issuer shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
such is required by law, at or prior to the written confirmation of the
sale of such Notes 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 or the Issuer 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 its
officers who signed the Registration Statement, the Issuer and each person,
if any, who controls the Bank or the Issuer 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 statements or
omissions, or alleged untrue statements of any material fact or omissions,
made 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 or the Issuer by such Underwriter through
the Representative expressly for use in the Registration Statement or such
preliminary prospectus or the Prospectus, 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) Each indemnified party shall give prompt
written notice to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement; provided, that the indemnifying party is not materially
prejudiced by such failure to notify. An indemnifying party may participate
at its own expense in the defense of any such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances.
10. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in Section 9(a) is for any reason held to be unavailable other than in
accordance with its terms, the Bank and the Issuer and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Bank and the Issuer and the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount and
commissions bear to the initial public offering price appearing thereon and
the Bank and the Issuer are jointly and severally responsible for the
balance. Notwithstanding the provisions of this Section 10, each
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Notes purc 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) hased by it hereunder. The Bank and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 10 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 Section 10. 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. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section
15 of the Act shall have the same rights to contribution as such
Underwriter, and each director of the Bank, each officer of the Bank who
signed the Registration Statement, and each person, if any, who controls
the Bank within the meaning of Section 15 of the Act shall have the same
rights to contribution as the Bank.
11. Notwithstanding anything herein contained, this
Agreement and the applicable Terms Agreement may be terminated in the
absolute discretion of the Representative, by notice given to the Bank, if
after the execution and delivery of this Agreement and the applicable Terms
Agreement and prior to the Closing Date 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 Owner Trust, the
First USA Credit Card Master Trust or the Bank which, in the judgment of
the Representative, materially impairs the investment quality of the Notes
or makes it impractical or inadvisable to market the Notes; (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 Notes or makes it impractical or inadvisable to market the Notes; (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
Notes.
12. If any Underwriter defaults in its obligations to
purchase Notes hereunder and the aggregate principal amount of the Notes
that such defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of such Notes, you may make
arrangements satisfactory to the Bank for the purchase of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated, in proportion to their commitments hereunder, to
purchase the Notes that such defaulting Underwriter agreed but failed to
purchase. If any Underwriter so defaults and the aggregate principal amount
of the Notes with respect to which such default or defaults occur exceeds
10% of the total principal amount of such Notes and arrangements
satisfactory to you and the Bank for the purchase of such Notes by other
persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting
Underwriter or the Bank, except as provided in Section 7. Nothing herein
will relieve a defaulting Underwriter from liability for 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.
13. If for any reason other than as set forth in Section
12 the purchase of the Notes by the Underwriters is not consummated, the
Bank shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 7 and the respective obligations of the Bank, the
Issuer, and the Underwriters pursuant to Sections 9 and 10 shall remain in
effect. If the purchase of the Notes by the Underwriters is not consummated
for any reason [other than solely because of the occurrence of any event
specified in clauses (ii), (iii) or (iv) of Section 11], the Bank will
reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Notes.
14. Any action by the Underwriters hereunder may be taken
by the Representative on behalf of the Underwriters, and any such action
taken by the Representative shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given to
the Representative, [ ] at [ ], Attention: [ ], or to such other address as
the Representative may designate in writing to the Bank. Notices to the
Bank shall be given to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxx Xxxx, Senior Vice President, telephone: (302)
000-0000, telecopier: (000) 000-0000, 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: (000) 000-0000.
15. (a) Each Underwriter, severally, represents and
warrants to the Bank and the Issuer that it has not and will not use any
information that constitutes "Computational Materials," as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and
Xxxxxx Structured Asset Corporation (as made generally applicable to
registrants, issuers and underwriters by the Commission's response to the
request of the Public Securities Association dated May 27, 1994), with
respect to the offering of the Notes .
(b) Each Underwriter, severally, represents and
warrants to the Bank and the Issuer that it has not and will not use any
information that constitutes "ABS Term Sheets," as defined in the
Commission's No-Action Letter, dated February 13, 1995, addressed to the
Public Securities Association, with respect to the offering of the Notes.
16. 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 Notes, transfer,
deposit or otherwise convey any Notes 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 Notes without the
prior written consent of the Bank.
17. Each Underwriter, severally, represents that if it
furnished an electronic copy of the preliminary Prospectus prepared in
connection with the offer and sale of the Notes to any person, such
Underwriter has furnished a printed copy of such preliminary Prospectus to
all persons to whom it previously furnished an electronic copy.
18. This Agreement shall become effective upon execution
and delivery of the applicable Terms Agreement.
19. This Agreement shall inure to the benefit of and be
binding upon the Bank, the Issuer, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or
any provision herein contained. No purchaser of Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
20. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one
and the same instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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 become a binding agreement between the Bank, the
Issuer and the Underwriters in accordance with its terms.
Very truly yours,
FIRST USA BANK, NATIONAL ASSOCIATION, as
Transferor and as Servicer
By:
------------------------------------------------
Name:
Title:
BANK ONE ISSUANCE TRUST
By: FIRST USA BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Beneficiary on behalf of the Issuer
By:
------------------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
[ ],
As Underwriter or as the Representative
of the Underwriters named in
Schedule I to the Terms Agreement
By:
----------------------------------------------------------
Name:
Title:
[Signature Page to the Bank One Issuance Trust ([ONEseries Class ___
(2002-___)]) Underwriting Agreement]
EXHIBIT A
BANK ONE ISSUANCE TRUST
SERIES ____
ASSET BACKED NOTES
TERMS AGREEMENT
Dated:
To: FIRST USA BANK, NATIONAL ASSOCIATION
Re: Underwriting Agreement dated [ ]
Series Designation: [ ]
Underwriters:
------------
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of
the above referenced Underwriting Agreement as such Underwriting Agreement
is incorporated herein and made a part hereof.
Terms of the Notes:
------------------
Initial
Principal Interest Price to
Amount Rate or Formula Public
------------------------------------- --------------------------------- ------------------------
[Class ]
[Class ]
[Class ]
Interest Payment Dates: _______________, _______________,
______________ and _______________, commencing _____________ __, _____.
Note Ratings[s]:
---------------
Indenture:
---------
Indenture Supplement:
--------------------
Pooling and Servicing Agreement:
-------------------------------
Series Supplement:
-----------------
Purchase Price:
--------------
The purchase price payable by the Underwriters for the
Notes covered by this Agreement will be the following percentage of the
principal amounts to be issued:
[Per Class [ ] Notes __________%]
[Per Class [ ] Notes __________%]
[Per Class [ ] Notes __________%]
Registration Statement:
----------------------
Underwriting Commissions, Concessions and Discounts:
---------------------------------------------------
The Underwriters' discounts and commissions, the
concessions that the Underwriters may allow to certain dealers, and the
discounts that such dealers may reallow to certain other dealers, each
expressed as a percentage of the principal amount of the Notes, shall be as
follows:
Underwriting
Discounts and Selling
Concessions Concessions Reallowance
----------------------------- --------------------------- -----------------------------
[Class ] ___% ___% ___%
[Class ] ___% ___% ___%
[Class ] ___% ___% ___%
[Reimbursement of Expenses:
-------------------------
The Underwriters shall reimburse the Bank for an amount
not to exceed $__________ for application towards expenses.]
Closing Date: Pursuant to Rule 15c6-1(d) under the Securities Exchange Act
of 1934, as amended, the Underwriters, the Bank and the Issuer hereby agree
that the Closing Date shall be __________ __, 2000, __________ a.m., New
York Time.
Location of Closing:
-------------------
Payment for the Notes:
---------------------
Opinion Modifications:
---------------------
The Underwriters agree, severally and not jointly, subject to the terms and
provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Notes set
forth opposite their names on Schedule I hereto.
[ ]
[As Representative of the
Underwriters named in
Schedule I hereto]
By:
------------------------------------------------------
Name:
Title:
Accepted:
FIRST USA BANK, NATIONAL ASSOCIATION
By:
-----------------------------------------------------
Name:
Title:
BANK ONE ISSUANCE TRUST
By: FIRST USA BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Beneficiary on behalf of the Issuer
By:
-----------------------------------------------------
Name:
Title:
SCHEDULE I
UNDERWRITERS
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
Principal Amount
----------------
[Names of Underwriters] $
___________________
$
===================
