Exhibit 1.1a
BANK ONE ISSUANCE TRUST
FIRST USA BANK, NATIONAL ASSOCIATION
(Transferor and Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
April 24, 2002
Banc One Capital Markets, Inc.,
As an Underwriter and as a Representative
of the Underwriters named in the
Terms Agreement
1 Bank One Plaza, Mail Suite, IL1-0460
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Brothers Inc.,
As an Underwriter and as a Representative
of the Underwriters named in the
Terms Agreement
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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
to be dated as of May 1, 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, National Association, as trustee (in such capacity, the
"Indenture Trustee"). The Issuer will be operated pursuant to an Amended and
Restated Trust Agreement, to be dated as of May 1, 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, to be dated as of May 1, 2002 between the Issuer and
Xxxxx Fargo Bank
Minnesota, National Association, 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 March 28, 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 May 1, 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 Banc One Capital Markets, Inc. and
Xxxxxx Brothers Inc., as the representatives of the 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 both Banc One Capital
Markets, Inc. and Xxxxxx Brothers Inc. in their capacity as Underwriters of any
Notes or as Representatives). Notes sold to the Underwriters for which Banc One
Capital Markets, Inc. and Xxxxxx Brothers Inc. are the Representatives shall be
sold pursuant to a Terms Agreement by and between the Bank, the Trust and the
Representatives, 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
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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 Representatives is advisable and
(ii) initially to offer the Notes upon the terms set forth in the Prospectus.
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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 Representatives 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 Representatives 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 Representatives 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
Representatives 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
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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 Representatives 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
and the Transfer 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;
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(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;
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(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 Representatives 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
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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
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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, at the request of either Representative,
deliver (or the Bank will cause the Issuer to deliver), at the expense of the
Bank, to such 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
Representatives 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 Representatives a copy of the proposed amendment or supplement.
(d) The Bank and the Issuer will advise the Representatives
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 Representatives
will furnish to the Bank and the Issuer) to which Notes may have been sold by
the Representatives 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.
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(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 Representatives 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 Representatives 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 Representatives 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) Upon written request by either Representative, so long as
any of the Notes are outstanding, the Issuer or the Bank will furnish to the
Representatives 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) Upon written request by either Representative, the Bank, as
Servicer, will furnish to the Representatives 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 request and following
delivery of such statements and reports 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 both Representatives.
(k) The Indenture will 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
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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
their 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 the Closing Date, the Representatives shall have received
a letter, dated the Closing Date, of KPMG LLP, 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 their 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
11
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 each
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 Representatives 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 Representatives,
subject to customary qualifications, assumptions, limitations and exceptions,
dated the Closing Date, in form and substance reasonably satisfactory to the
Representatives and their counsel, with respect to general corporate matters.
(e) The Representatives 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 Representatives and their 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).
12
(f) The Representatives 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 Representatives and their 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 Representatives 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 Representatives 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 Representatives, 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 the Representatives and their counsel. In addition, the
Representatives 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 Representatives 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 Representatives and their 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 Representatives 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
Representatives and their counsel, with respect to general corporate matters
relating to the First USA Master Trust Trustee.
(j) The Representatives 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
13
the Representatives and their counsel, with respect to general corporate matters
relating to the Owner Trustee.
(k) The Representatives 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 Representatives and
their counsel, with respect to certain matters relating to the Issuer and the
establishment thereof.
(l) The Representatives 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 Representatives and their
counsel, with respect to general corporate matters.
(m) The Representatives 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.
(n) The Representatives 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.
14
(o) The Representatives shall have received evidence
satisfactory to them that the Notes shall be rated in accordance with the
applicable Terms Agreement by each Note Rating Agency.
The Bank will furnish the Representatives, or cause them to be
furnished with, such number of conformed copies of such opinions, certificates,
letters and documents as they 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; 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
15
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 Representatives 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 purchased by it hereunder;
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). The
Bank and the Underwriters agree that it would not be just
16
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
Representatives, 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 Representatives, 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 Representatives, 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, the Representatives 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 the Representatives 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.
17
In the event of any such default which does not result in a termination of
this Agreement, any of the Representatives 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), (iv) or (v) 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
Representatives on behalf of the Underwriters, and any such action taken by the
Representatives 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 each of Banc One Capital Markets
Inc., as a Representative at 1 Bank Xxx Xxxxx, Xxxx Xxxxx, XX0-0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. XxXxxxxx, and Xxxxxx Brothers Inc., as a
Representative at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxx
Xxxxxxxxxxx, or to such other address as either 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: (000) 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) Except as specifically set forth in the applicable Terms
Agreement, 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, Xxxxxxx Acceptance Corporation I,
Xxxxxx, Peabody & 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) Except as specifically set forth in the applicable Terms
Agreement, 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
18
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 is
sponsored by such Underwriter or an Affiliate of such Underwriter and 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.
19
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: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
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: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
BANC ONE CAPITAL MARKETS, INC.,
as Underwriter and as a Representative
of the Underwriters named in
Schedule I to the Terms Agreement
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Managing Director
XXXXXX BROTHERS INC.,
as Underwriter and as a Representative
of the Underwriters named in
Schedule I to the Terms Agreement
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Managing Director
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]:
---------------
A-1
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:
-------------------
A-2
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:
A-3
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] $
---------
$
=========
