First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1999-_
Class B Floating Rate Asset Backed Certificates,
Series 1999-_
UNDERWRITING AGREEMENT
_________ __, 1999
[Underwriter],
as Representative of the
Underwriters set forth herein
[Address]
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to __________________
_____________ (the "Representative"), ____________________, ______________
_____________ and ______________________ as underwriters (collectively with
the Representative, the "Underwriters" and each individually, an
"Underwriter") of First USA Credit Card Master Trust $ aggregate principal
amount of Class A Floating Rate Asset Backed Certificates, Series 1999-_
(the "Class A Certificates") and of First USA Credit Card Master Trust
$__________ aggregate principal amount of Class B Floating Rate Asset
Backed Certificates, Series 1999-_ (the "Class B Certificates" and,
together with the Class A Certificates, the "Certificates"). The
Certificates will be 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 Agreement"), as supplemented by the Series
1999-_ Supplement, dated as of the Closing Date (the "Supplement" and,
together with the Master Pooling and Servicing Agreement, the "Pooling and
Servicing Agreement"), each by and 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").
Each Certificate will represent an undivided interest in
certain assets of First USA Credit Card Master Trust (the "Trust"). The
property of the Trust will include, among other things, receivables (the
"Receivables") arising under certain MasterCard(R) and VISA(R)(1) revolving
credit card accounts (the "Accounts").
Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The
Bank represents and warrants to, and agrees with, the Underwriters as
follows:
(a) The Bank has filed with the Securities and Exchange
Commission (the "Commission"), on Form S-3, a registration statement
(Registration No. 333-_______) pursuant to Rule 415 under the Securities
Act of 1933, as amended (such act, the "Act"). The Bank may have filed one
or more amendments thereto each of which amendments has previously been
furnished to each of the Underwriters. The Bank will also file with the
Commission a prospectus supplement in accordance with Rule 424(b) under the
Act. As filed, the registration statement, including any amendments
thereto, the form of prospectus supplement, and any prospectuses or
prospectus supplements filed pursuant to Rule 424(b) under the Act relating
to the Certificates shall, except to the extent that the Underwriters shall
agree in writing to a modification, be in all substantive respects in the
form furnished to the Representative prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the latest preliminary prospectus supplement which has previously been
furnished to the Underwriters) as the Bank has advised the Underwriters,
prior to the Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date
and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
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)
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(1) VISA(R) and MasterCard(R) are registered trademarks of
Visa USA Incorporated and MasterCard International Incorporated,
respectively.
filed on Form 8-K), is hereinafter referred to as the "Registration
Statement," and any prospectus supplement (the "Prospectus Supplement")
relating to the Certificates, as filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together
with the prospectus filed as part of the Registration Statement (such
prospectus, in the form it appears in the Registration Statement or in the
form most recently revised and filed with the Commission pursuant to Rule
424(b) being hereinafter referred to as the "Basic Prospectus"),
hereinafter referred to as the "Prospectus". "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus
was first filed and on the Closing Date, the Prospectus did or will, comply
in all material respects with the applicable requirements of the Act and
the rules and regulations of the Commission under the Act (the "Rules and
Regulations"); on 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 or warranty as to
the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Bank by the Underwriters specifically for use
in connection with preparation of the Registration Statement or the
Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, management, financial condition, stockholders' equity, results of
operations, regulatory status or business prospects of the Bank and (ii)
the Bank has not entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Bank that, in either
case, would reasonably be expected to materially adversely affect the
interests of the holders of the Certificates, otherwise than as set forth
or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States, and has full corporate power, authority and legal right to
own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement, the Pooling and
Servicing Agreement, the Certificates and the Transfer and Administration
Agreement, dated as of the Closing Date (the "Transfer and Administration
Agreement"), between the Bank and Bankers Trust (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee on behalf of the First USA Secured Note Trust 1999-_ (in such
capacity, the "Owner Trustee").
(e) This Agreement has been duly authorized and validly
executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly
authorized and, when executed and delivered by the Bank and assuming the
due authorization, execution and delivery thereof by the Trustee, will
constitute a valid and binding obligation of the Bank enforceable against
the Bank in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is pursuant to a proceeding in
equity or at law). As of the Closing Date, the Pooling and Servicing
Agreement will have been duly and validly executed by the Bank and will
conform in all material respects to the description thereof contained in
the Prospectus.
(g) The Certificates have been duly and validly
authorized by all required action of the Bank, and, when duly and validly
executed by the Bank, authenticated by the Trustee and delivered in
accordance with the Pooling and Servicing Agreement, and delivered to and
paid for by the Underwriters as provided herein, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. As of the Closing Date, the Certificates will have been duly and
validly executed by the Bank, and will conform in all material respects to
the descriptions thereof contained in the Prospectus.
(h) The 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 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, govern-
mental 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) Except as disclosed in the Base Prospectus xxxxx the
heading "Certain Legal Aspects of the Receivables," 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 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) Xxxxxx Xxxxxxxx, LLP who have audited certain
financial statements of Bank 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 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
1999-_), plus (ii) 4% of the amount stated in clause (i).
(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").
2. Purchase, Sale, Payment and Delivery of Certificates. On the
basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Bank agrees
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Bank, on , 1999 or on such other date as
shall be mutually agreed upon by the Bank and the Underwriters (the
"Closing Date"), the amount and type of Certificates set forth in Schedule
A opposite the name of each such Underwriter. The Class A Certificates
being purchased by the Underwriters hereunder are to be purchased at a
purchase price equal to % of the principal amount thereof. The Class B
Certificates being purchased by the Underwriters hereunder are to be
purchased at a purchase price equal to ____% of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing")
shall be held at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City
time, on the Closing Date. Payment of the purchase price for the
Certificates being sold and purchased hereunder shall be made on the
Closing Date by wire transfer of Federal or other immediately available
funds to an account to be designated one business day prior to the Closing
Date by the Bank, against delivery of the Certificates at the Closing on
the Closing Date. Each of the Certificates to be so delivered shall be
represented by one or more definitive certificates registered in the name
of Cede & Co., as nominee for The Depository Trust Company.
3. Offering by Underwriters. (a) It is understood that
after the Effective Date the Underwriters propose to offer the Certificates
for sale to the public as set forth in the Prospectus.
(b) Each Underwriter may provide to prospective investors
the 1999-_ Term Sheet, dated, _____________ __, 1999, relating to the
Certificates (the "1999-_ Term Sheet") prepared by the Bank and attached
hereto as Exhibit A, subject to the following conditions:
(i) Such Underwriter shall have complied with the
requirements of (A) the no-action letter, dated May 20, 1994, issued
by the Commission to Xxxxxx, 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 of the no-action letter,
dated February 17, 1995, issued by the Commission to the Public
Securities Association (the "PSA Letter") and (C) the requirements of
the no-action letter, dated April 5, 1996, issued by the Commission
to Greenwood Trust Company (the "Greenwood Letter" and, together with
the Xxxxxx/PSA Letter and the PSA Letter, the "No-Action Letters").
(ii) Each Underwriter, severally, represents and warrants
to the Bank that (a) it has not and will not use any information that
constitutes "Computational Materials" with respect to the offering
of the Certificates unless it has obtained the prior written consent
of the Bank to such usage and (b) other than the 1999-_ 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 Greenwood Letter and "Computational
Materials" shall have the meaning given such term in the No-Action
Letters. For purposes hereof, "ABS Term Sheets," "Structural Term
Sheets" and "Collateral Term Sheets" shall have the meanings given
such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and
agrees with the several Underwriters as follows:
(a) Immediately following the execution of this
Agreement, the Bank will prepare a Prospectus Supplement setting forth the
amount of Certificates covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such Certificates are
to be purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the Bank
deems appropriate. The Bank will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing that complies with all applicable
provisions of Rule 424(b). The Bank will advise the Representative promptly
of any such filing pursuant to Rule 424(b).
(b) The Bank will advise the Representative promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplement without the
consent of the Representative, which consent will not unreasonably be
withheld; the Bank will also advise the Representative promptly of any
request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information;
and the Bank will also advise the Representative promptly of any amendment
or supplement to the Registration Statement or the Prospectus and of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose and the Bank will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued stop order.
(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 and the Rules and Regulations thereunder, the Bank promptly will
advise the Representative thereof and will prepare and file, or cause to be
prepared and filed, with the Commission an amendment or supplement which
will correct such statement or omission, or an amendment or supplement
which will effect such compliance. Any such filing shall not operate as a
waiver or limitation on any condition or right of the Underwriters
hereunder.
(d) As soon as practicable, but not later than sixteen
months after the original effective date of the Registration Statement, the
Bank will cause the Trust to make generally available to Certificateholders
an earnings statement (or statements) of the Trust covering a period of at
least twelve months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 promulgated thereunder.
(e) The Bank will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include
all exhibits), each related preliminary prospectus or prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Bank will promptly, from time to time, take such
action as any Underwriter may reasonably request to qualify the
Certificates for offering and sale under the securities laws of such
jurisdictions as such Underwriter may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Certificates, provided that in connection therewith the Bank shall
not be required to qualify as a foreign corporation or dealer in securities
or to file a general consent to service of process in any jurisdiction.
(g) For a period from the date of this Agreement until
the retirement of the Certificates, the Bank will deliver to the
Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee
pursuant to the Pooling and Servicing Agreement, as soon as such statements
and reports are furnished to the Trustee.
(h) So long as any of the Certificates are outstanding,
the Bank will furnish to the Representative (i) as soon as practicable
after the end of the fiscal year all documents required to be distributed
to Certificateholders or filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
order of the Commission thereunder and (ii) from time to time, any other
information concerning the Bank filed with any government or regulatory
authority which is otherwise publicly available, as the Representative
reasonably requests.
(i) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that initially
rate the Certificates is conditional upon the furnishing of documents or
the taking of any other actions by the Bank, the Bank shall use its best
efforts to furnish such documents and take any such other actions.
(j) The Bank will file with the Commission a report on
Form 8-K with respect to the 1999-_ Term Sheet and a report on Form 8-K
setting forth all Computational Materials described in Section 3 hereof
provided to the Bank by any of the Underwriters and identified by such
Underwriter as such within the time period allotted for such filing
pursuant to the No-Action Letters.
5. Payment of Expenses. The Bank will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing of the 1999-_ 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 Underwriters, (v) the fees and disbursements of the
Bank's counsel and accountants, (vi) the qualification of the Certificates
under securities laws in accordance with the provisions of Section 4(f)
hereof, including filing fees and the fees and disbursements of counsel for
the Underwriters and in connection with the preparation of any blue sky and
legal investment survey, (vii) the printing and delivery to the
Underwriters of copies of the 1999-_ Term Sheet and any Computational
Materials described in Section 3 hereof, (viii) the printing and delivery
to the Underwriters of copies of the Prospectus and of each amendment or
supplement thereto, (ix) the printing and delivery to the Underwriters of
copies of any blue sky or legal investment survey prepared in connection
with the Certificates, (x) any fees charged by rating agencies for the
rating of the Certificates, (xi) the fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities
Dealers, Inc. and (xii) the fees and expenses of the Trustee and its
counsel. The Underwriters have agreed to reimburse the Bank for expenses
not to exceed $ incurred by the Bank in connection with the issuance and
distribution of the Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Bank herein, to the accuracy of the
statements of officers of the Bank made pursuant to the provisions hereof,
to the performance by the Bank of its obligations hereunder and to the
following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have
been filed (if required) with the Commission in accordance with the Rules
and Regulations and Section 1 hereof, and prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Bank, shall be contemplated by the
Commission or by any authority administering any state securities or blue
sky law.
(b) On or prior to the date of the Prospectus and on or
prior to the Closing Date, the Underwriters shall have received a letter or
letters, dated as of the date of the Prospectus and as of the Closing Date,
respectively, of Xxxxxx Xxxxxxxx, LLP, Certified Public Accountants,
substantially in the form of the drafts to which the Representative has
previously agreed and otherwise in form and substance satisfactory to the
Representative and its counsel.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, or the Bank which, in the judgment of the
Representative, materially impairs the investment quality of the
Certificates or makes it impractical or inadvisable to market the
Certificates; (ii) any suspension or limitation on trading in securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers National Market system, or any setting of minimum prices
for trading on such exchange or market system; (iii) any suspension of
trading of any securities of BANK ONE CORPORATION on any exchange or in the
over-the-counter market which materially impairs the investment quality of
the Certificates or makes it impractical or inadvisable to market the
Certificates; (iv) any banking moratorium declared by Federal, Delaware or
New York authorities; or (v) any outbreak or escalation of major
hostilities or armed conflict, any declaration of war by Congress, or any
other substantial national or international calamity or emergency if, in
the judgment of the Representative, the effect of any such outbreak,
escalation, declaration, calamity, or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Certificates.
(d) At the Closing Date, the Bank shall have furnished
to the Representative certificates of a vice president or more senior
officer of the Bank as to the accuracy of the representations and
warranties of the Bank herein at and as of the Closing Date, as to the
performance by the Bank of all of its obligations hereunder to be performed
at or prior to such Closing Date, and as to such other matters as the
Representative may reasonably request.
(e) Xxxxxx X. Xxxxxxxx, Associate General Counsel of the
Bank, shall have furnished to the Representative her written opinion,
addressed to the Representative and dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, substantially
to the effect that:
(i) The Bank has been duly organized and is validly existing as
a national banking association in good standing 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 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 Underwriters in accordance with the terms
of this Agreement, will be validly issued and outstanding and entitled to
the benefits provided by the Pooling and Servicing Agreement;
(iii) Each of the Pooling and Servicing Agreement and the
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;
(iv) This Agreement has been duly authorized, executed and
delivered by the Bank;
(v) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution, delivery
and performance by the Bank of its obligations under the Agreements or the
Certificates, or (B) the issuance or sale of the Certificates, except such
as have been obtained under the Act and as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters and the filing of
Uniform Commercial Code financing statements with respect to the
Receivables;
(vi) To the best knowledge of such counsel, neither the
execution and delivery of the Agreements or the Certificates by the Bank
nor the performance by the Bank of the transactions therein contemplated
nor the fulfillment of the terms thereof does or will result in any
violation of any statute or regulation or any order or decree of any court
or governmental authority binding upon the Bank or its property, or
conflict with, or result in a breach or violation of any term or provision
of, or result in a default under any of the terms and provisions of, the
Bank's organizational documents or by-laws or any material indenture, loan
agreement or other material agreement to which the Bank is a party or by
which the Bank is bound;
(vii) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to which the Bank is
a party or to which the Bank is subject which, individually or in the
aggregate (A) would have a material adverse effect on the ability of the
Bank to perform its obligations under the Agreements or the Certificates,
(B) assert the invalidity of the Agreements or the Certificates, (C) seek
to prevent the issuance, sale or delivery of the Certificates or any of the
transactions contemplated by the Agreements or (D) seek to affect adversely
the Federal income tax or ERISA attributes of the Certificates described
in the Prospectus;
(viii)The Registration Statement and the Prospectus (except
for the financial statements, financial schedules and other financial and
operating data included therein, as to which such counsel expresses no
opinion) comply as to form with the Act and the Rules and Regulations;
(ix) The Registration Statement has become effective under the
Act, and the Prospectus Supplement will be filed with the Commission
pursuant to Rule 424(b) thereunder; and
(x) Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the information contained in the Registration
Statement and Prospectus. Based upon her discussions with the Bank, its
accountants and others, however, no facts have come to her attention that
cause her to believe that the Prospectus (except for the financial
statements, financial schedules and other financial and statistical data
included therein, as to which such counsel expresses no opinion), contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(f) The Representative shall have received a letter from
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to
the effect that the Representative may rely on its opinion to Xxxxx'x
Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings, a division
of The XxXxxx-Xxxx Companies, Inc.("Standard & Poor's"), and Fitch IBCA,
Inc. ("Fitch") with respect to certain bank regulatory matters.
(g) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Bank,
addressed to the Representative, dated the Closing Date and satisfactory in
form and substance to the Representative and its counsel, to the effect
that the Certificates will be treated as indebtedness for Federal income
tax purposes and for Delaware income tax purposes.
(h) The Representative shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement and
the 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 or indemnification which are violative of
public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be duly and validly
issued and outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement;
(iii) This Agreement has been duly authorized,
executed and delivered by the Bank;
(iv) Neither the execution, delivery or performance
by the Bank of the Agreements or this Agreement, nor the compliance
by the Bank with the terms and provisions thereof or hereof, will
contravene any provision of any applicable law;
(v) Based on such counsel's review of applicable
laws, no governmental approval, which has not been obtained or taken
and is not in full force and effect, is required to authorize or is
required in connection with the execution, delivery or performance of
the Agreements by the Bank;
(vi) The Certificates, the Pooling and Servicing
Agreement and this Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus;
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not required to be registered under the
1940 Act;
(viii) The statements in the Prospectus under the
heading "Certain Legal Aspects of the Receivables", to the extent
that they constitute matters of law or legal conclusions with respect
thereto, have been reviewed by such counsel and are correct in all
material respects; and
(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 Rules and Regulations under the Act,
except that in each case such counsel expresses no opinion as to the
financial data included therein or excluded therefrom or the exhibits
to the Registration Statement, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the
Prospectus.
Such opinion shall also state that such counsel has
participated in conferences with officers and representatives of the Bank,
counsel for the Bank, representatives of the independent accountants of the
Bank and the Underwriters at which the contents of the Prospectus and
related matters were discussed and, although such counsel need not pass
upon, and need not assume any responsibility for, the accuracy, com
pleteness or fairness of the statements contained in the Prospectus and
shall have made no independent check or verification thereof, except for
those made under the caption "Certain Legal Aspects of the Receivables" to
the extent set forth in paragraph (viii) above, on the basis of the
foregoing, no facts shall have come to such counsel's attention that shall
have led such counsel to believe that the Prospectus, as of its date,
contained an untrue statement of a material fact or omitted to 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) XxXxxxx, Woods, Battle & Xxxxxx, L.L.P., counsel for
The Bank of New York, a New York banking corporation ("BONY"), in
connection with the Agency Agreement, dated as of December 4, 1995, between
BONY and the Trustee (the "Agency Agreement"), and counsel for the Trustee,
shall have furnished to the Representative its written opinion, addressed
to the Representative and dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, substantially to the
effect that:
(i) BONY is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and has the corporate power and authority to execute,
deliver and perform its obligations under the Agency Agreement;
(ii) The Certificates have been duly authenticated
by BONY pursuant to the Agency Agreement and in accordance with the
Pooling and Servicing Agreement;
(iii) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and has the corporate power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement;
(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 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 & Finger, counsel for First USA
Secured Note Trust 1999-_ (the "Owner Trust") in connection with the
Transfer and Administration Agreement and the Indenture dated as of the
Closing Date, between the Owner Trust and The Bank of New York, as
indenture trustee, shall have furnished to the Representative its written
opinion, addressed to the Representative and dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) The Owner Trust is a business trust duly
formed, validly existing and in good standing under the laws of the
State of Delaware and has the power and authority to execute, deliver
and perform its obligations under the Transfer and Administration
Agreement and the Indenture;
(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 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, dated as of
________________ __, 1999 (the "trust Agreement"), between the Bank and the
Owner Trustee, shall have furnished to the Representative its written
opinion, addressed to the Representative and dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) 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 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 realiza tion 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 Representative shall have received evidence
satisfactory to the Representative and its counsel that, on or before the
Closing Date, financing statements have been filed in the appropriate
filing offices of the State of Delaware and such other jurisdictions as
counsel to the Bank deems appropriate to reflect the interest of the
Trustee in the Receivables.
(m) The Class A Certificates shall be rated "AAA" by
Standard & Poor's, "Aaa" by Xxxxx'x and "AAA" by 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 Representative and its counsel,
and the Representative and its counsel shall have received such
information, certificates and documents as any of them may reasonably
request.
7. Indemnification and Contribution.
(a) The Bank agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act and under Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities to which
they may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or in any revision
or amendment thereof or supplement thereto or any related preliminary pro-
spectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each
such indemnified party for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Bank will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Bank by any Underwriter specifically for use
therein or any revision or amendment thereof or supplement thereto. The
foregoing indemnification with respect to any untrue statement or omission
in any preliminary prospectus or prospectus supplement shall not inure to
the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Bank shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Certificates to such person and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability provided that the Bank
shall have identified to such Underwriter in writing such defect prior to
the delivery of such written confirmation by such Underwriter to such
person.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Bank, its directors, each of the Bank's
officers who signed the Registration Statement and each person, if any, who
controls the Bank within the meaning of Section 15 of the Act and under
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities to which they may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or
in any revision or amendment thereof or supplement thereto or any related
preliminary prospectus or prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Bank by such Underwriter specifically for use
therein or any revision or amendment thereof or supplement thereto, and
agrees to reimburse such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage or liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
this Section 7 of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not 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 rea sonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemni-
fied 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 liabili ties referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the rela tive
benefits received by the Bank on the one hand and the respective
Underwriter on the other from the offer ing of the Certificates or (ii) if
the allocation pro vided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Bank on the one hand and of the respective Underwriter on the other in
connection with the statements or omissions which re sulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one hand
and the respective Underwriter on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Bank bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Bank or by any Underwriter and the parties' relative intent, knowledge,
access to informa tion and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemni fied party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
each Underwriter shall not be required to contrib ute any amount in excess
of the underwriting discount or commission applicable to the Certificates
purchased by it hereunder. The Bank and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of any of the equitable
considerations referred to above in this subsection (d). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
8. Survival. The Bank and the Underwriters agree that the
respective representations, warranties and agreements made by them herein
and in any certifi cate or other instrument delivered pursuant hereto shall
be deemed to be relied upon, in the case of the Bank, by each Underwriter
and, in the case of the Underwriters, by the Bank, notwithstanding any
investigation hereto fore or hereafter made by or on behalf of the Bank or
the Underwriters, and that the respective representa tions, warranties and
agreements (including without limitation the indemnity and contribution
agreement) made by the Bank and the Underwriters herein or in any such
certificate or other instrument shall survive the delivery of and payment
for the Certificates.
9. Termination.This Agreement may be terminated in the sole
discretion of the Underwriters by notice to the Bank given at or prior to
the Closing Date in the event that the Bank shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its
part to be performed or satisfied hereunder at or prior thereto.
Termination of this Agreement pursuant to this Section 9 shall be without
liability of any party to any other party except as provided in Sections 5
and 7 hereof.
10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail on the Closing Date to purchase the
Certificates which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the lead Under writer shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of the non-default ing Underwriters, or any other underwriter, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such
24-hour period, then:
(a) if the aggregate amount of Defaulted Securi ties does not exceed
10% of the aggregate principal amount of the applicable class of
Certificates, each of the non-defaulting Underwriters of such class
of Certificates shall be obligated to pur chase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder with respect to such class of Certificates bear
to the underwriting obligations of all non-defaulting Underwriters
of such class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of
the aggregate principal amount of the applicable class of
Certificates, this Agree ment shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Bank shall
have the right to post pone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
11. Representation of the Underwriters. Each of the
Underwriters represents and warrants to, and agrees with, the Bank that (w)
it has only issued or passed on and shall only issue or pass on in the
United Kingdom any document received by it in connection with the issue of
the Certificates to a person who is of a kind described in Article 11(3) of
the Financial Services 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 that 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.
12. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered, sent by overnight courier or mailed by registered
mail, postage prepaid and return receipt requested, or trans mitted by
telex, telegraph or telecopier and confirmed by a similar mailed writing,
if to (a) the Underwriters, addressed to ,
Attention: , or to such other
address as the Representative may designate in writing to the Bank or (b)
the Bank, addressed to the Bank at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Senior Vice President and
Associate General Counsel, telephone: (000) 000-0000, telecopier: (302)
884-8361, with a copy to Bank One Corporation, 000 Xxxx Xxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Transaction
Manager, Structured Finance, telephone: (000) 000-0000, telecopier: (614)
248-9544.
13. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of
the Act) with respect to the Certificates, transfer, deposit or otherwise
convey any Certificates into a trust or other type of special purpose
vehicle that issues securities or other instruments backed in whole or in
part by, or that represents interests in, such Certifi xxxxx without the
prior written consent of the Bank.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns. Nothing expressed herein is intended or shall be construed to give
any person other than the persons referred to in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this
Agreement.
15. Severability of Provisions. Any cove nant, provision,
agreement or term of this Agreement that is prohibited or is held to be
void or unenforce able in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof.
16. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the
matters and transactions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions.
17. Amendment. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
18. Headings. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
19. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
shall together constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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:_____________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
[Underwriter],
for itself and as Representative
of the Underwriters named in
Schedule A hereto
By:____________________________
Name:
Title:
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
Total . . . . . . . . $
===================
Aggregate Principal
Amount of the Class B
Underwriter Certificates
Total . . . . . . . . $
====================
