EXHIBIT 1
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1997-2
Class B Floating Rate Asset Backed Certificates,
Series 1997-2
UNDERWRITING AGREEMENT
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April 25, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representative of the
Underwriters set forth herein
World Financial Center
North Tower
New York, New York 10281-1315
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"),
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has duly authorized the issuance and sale to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated (the "Representative"), Bear, ▇▇▇▇▇▇▇ & Co. Inc. and UBS
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Securities LLC, as underwriters (each individually, an "Underwriter" and
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collectively, the "Underwriters") of First USA Credit Card Master Trust
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$500,000,000 aggregate principal amount of Class A Floating Rate Asset Backed
Certificates, Series 1997-2 (the "Class A Certificates") and $45,180,000
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aggregate principal amount of Class B Floating Rate Asset Backed Certificates,
Series 1997-2 (the "Class B Certificates" and together with the Class A
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Certificates, the "Certificates"). The Certificates will be issued pursuant to
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a Pooling and Servicing Agreement, dated as of September 1, 1992 (the "Master
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Pooling and Servicing Agreement"), as supplemented by the Series 1997-2
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Supplement dated as of May 8, 1997 (the "Supplement" and together with the
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Master Pooling and Servicing Agreement, the "Pooling and Servicing Agreement"),
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each by and between the Bank, as transferor and servicer, and The Bank of New
York (Delaware) (the "Trustee").
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Each Certificate will represent an undivided interest in certain
assets of First USA Credit Card Master Trust (the "Trust"). The property of the
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Trust will include, among other things, receivables (the "Receivables") arising
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under certain MasterCard(R) and VISA(R) revolving credit card accounts (the
"Accounts").
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The Bank
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represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange
Commission (the "Commission"), on Form S-3, a registration statement
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(Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of
1933, as amended (such act, the "Act"). The Bank may have filed one or more
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 as amended, 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
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time as of which such registra-
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* VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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tion 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
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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) of this Agreement)
filed on Form 8-K), is hereinafter referred to as the "Registration Statement,"
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and any prospectus supplement (the "Prospectus Supplement") relating to the
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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
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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
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Time" shall mean the date and time that this Agreement is executed and delivered
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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 (the "Rules and Regulations"); on the Effective Date, the
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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,
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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 connec-
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tion 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 banking corporation under the laws of the State of Delaware and is
qualified to transact business in and is in good standing under the laws of each
state in which its activities require such qualification, and has full 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 Spread
Account Agreement dated as of May 8, 1997 by and among the Bank, as Transferor
and Servicer, the Trustee and The Bank of New York, as initial collateral agent
(the "Spread Account Agreement"), the Pooling and Servicing Agreement, and the
Certificates.
(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
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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 Spread Account 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 Spread Account 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 Spread Account 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 Spread Account Agreement, or this Agreement, will
result in the breach
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of any term or provision of the charter or by-laws of the Bank, or conflict
with, result in a breach, violation or acceleration of, or constitute a default
under, the terms of any indenture or other agreement or instrument to which the
Bank is a party or by which it or its properties is bound or may be affected or
any statute, order or regulation applicable to the Bank of any court, regulatory
body, administrative agency, governmental body or arbitrator having jurisdiction
over the Bank or will result in the creation of any Lien upon any property or
assets of the Bank (other than as contemplated in the Pooling and Servicing
Agreement). The Bank is not a party to, bound by, or in breach or violation of,
any indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over it, that
materially and adversely affects the ability of the Bank to perform its
obligations under this Agreement, the Pooling and Servicing Agreement, the
Spread Account Agreement, or the Certificates.
(k) There are no charges, investigations, actions, suits, claims or
proceedings before or by any court, regulatory body, administrative agency,
governmental body or arbitrator now pending or, to the best knowledge of the
Bank, threatened that, separately or in the aggregate (i) could have a material
adverse effect on (x) the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory status or
business prospects of the Bank or (y) the ability of the Bank to perform its
obligations under this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates, (ii) assert the invalidity of this
Agreement, the Spread Account 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
Spread Account 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
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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 Spread Account 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 Spread Account
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 Spread Account 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 and to the approval of the
Office of the State Bank Commissioner of the State of Delaware.
(o) ▇▇▇▇▇ & Young LLP who have audited certain financial statements
of the Bank are independent public accountants as required by the Act and the
Rules and Regulations.
(p) As of the close of business on March 31, 1997, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement have an aggregate balance determined, including the Receivables in the
Additional Accounts to be added to the Trust on or prior to the Closing Date, of
not less than the sum of (i) the sum of (x) the aggregate outstanding principal
amount of all classes of all Series outstanding
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on March 31, 1997, plus (y) $602,410,000 plus (ii) 7% of the sum of (x) plus
(y).
(q) The Trust is not, and will not be as a result of the issuance
and sale of the Certificates, an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
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2. Purchase, Sale, Payment and Delivery of Certificates. On the
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basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Bank, on May 8, 1997 or on such other date as shall be
mutually agreed upon by the Bank and the Underwriters (the "Closing Date"), the
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number 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 99.65%
of the principal amount thereof. The Class B Certificates being purchased by
the Underwriters hereunder are to be purchased at a purchase price equal to
99.60% of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall be
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held at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, on the
Closing Date. Payment of the purchase price for the Certificates being sold and
purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
3. Offering by Underwriters. (a) It is understood that after the
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Effective Date the Underwriters propose to offer the Certificates for sale to
the public as set forth in the Prospectus.
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(b) Each Underwriter may provide to prospective investors the 1997-2
Term Sheet dated April 24, 1997 relating to the Certificates (the "1997-2 Term
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Sheet") prepared by the Bank and attached hereto as Exhibit A, subject to the
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following conditions:
i) Such Underwriter shall have complied with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇
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 "▇▇▇▇▇▇/PSA
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Letter"), the requirements of the no-action letter, dated February 17, 1995,
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issued by the Commission to the Public Securities Association (the "PSA Letter")
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and 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
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the ▇▇▇▇▇▇/PSA Letter and the PSA Letter, the "No-Action Letters").
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ii) Each Underwriter, severally, represents and warrants to
the Bank that (a) it has not and will not use any information that constitutes
"Computational Materials" with respect to the offering of the Certificates
unless it has obtained the prior written consent of the Bank to such usage and
(b) other than the 1997-2 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
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have the meaning given such term in the Greenwood Letter and "Computational
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Materials" shall have the meaning given such term in the No-Action Letters. For
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purposes hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral
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Term Sheets" shall have the meanings given such terms in the PSA Letter.
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4. Certain Agreements of the Bank. The Bank covenants and agrees
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with the several Underwriters as follows:
(a) Immediately following the execution of this Agreement, the
Bank will prepare a Prospectus
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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, 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
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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
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fiscal year all documents required to be distributed to Certificateholders or
filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any order of the Commission thereunder and (ii)
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from time to time, any other information concerning the Bank filed with any
government or regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided with respect
to the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
(j) The Bank will file with the Commission a report on Form 8-K
with respect to the 1997-2 Term Sheet and a report on Form 8-K setting forth all
Computational Materials described in Section 3 hereof provided to the Bank by
any of the Underwriters and identified by such Underwriter as such within the
time period allotted for such filing pursuant to the No-Action Letters.
5. Payment of Expenses. The Bank will pay all expenses incident to
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the performance of its obligations under this Agreement, including (i) the
printing of the 1997-2 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 Spread Account
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 1997-2 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 Under-
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writers 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
$147,590 incurred by the Bank in connection with the issuance and distribution
of the Certificates.
6. Conditions of the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Certificates
will be subject to the accuracy of the representations and warranties on the
part of the Bank herein, to the accuracy of the statements of officers of the
Bank made pursuant to the provisions hereof, to the performance by the Bank of
its obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the rules and
regulations under the Act 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 ▇▇▇▇▇ & Young 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
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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 First USA, Inc. 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) ▇▇▇▇▇ ▇. ▇▇▇▇, senior counsel for First USA, Inc., shall have
furnished to the Representative his 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 incorporated and is validly
existing as a bank in good standing under the laws of the State of Delaware
with full power and authority (corporate and other) to own its properties
and conduct its business, as presently
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owned and conducted by it, and to enter into and perform its obligations
under this Agreement, the Spread Account Agreement and the Pooling and
Servicing Agreement (collectively referred to in this subsection (e) as the
"Agreements"), and the Certificates and had at all times, and now has, the
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power, authority and legal right to acquire, own and transfer the
Receivables;
ii) The Bank is duly qualified to do business and is in
good standing, and under state laws, as they are currently interpreted and
enforced, has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such licenses or
approvals would materially and adversely affect the enforceability of any
Receivable by the Bank or the Trustee or would adversely affect the ability
of the Bank to perform its obligations under the Agreements or the
Certificates;
iii) 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;
iv) Each of the Agreements 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
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equity or at law) and the rights and powers of the FDIC;
v) The Trust is not now, and immediately following the sale of
the Certificates pursuant to the Underwriting Agreement will not be,
required to register under the 1940 Act;
vi) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution, delivery and
performance by the Bank of its obligations under the Agreements or the
Certificates, or (B) the issuance or sale of the Certificates, except such
as have been obtained under the Act and as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters and the filing of
Uniform Commercial Code financing statements with respect to the
Receivables and the approval of the Office of the State Bank Commissioner
of the State of Delaware;
vii) To the best knowledge of such counsel, neither the execution
and delivery of the Agreements or the Certificates by the Bank nor the
performance by the Bank of the transactions therein contemplated nor the
fulfillment of the terms thereof does or will result in any violation of
any statute or regulation or any order or decree of any court or
governmental authority binding upon the Bank or its property, or conflict
with, or result in a breach or violation of any term or provision of, or
result in a default under any of the terms and provisions of, the Bank's
charter or by-laws or any material indenture, loan agreement or other
material agreement to which the Bank is a party or by which the Bank is
bound;
viii) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to
16
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;
ix) The Registration Statement and the Prospectus
(except for the financial statements, financial schedules and other
financial and operating data included therein, as to which such counsel
expresses no view) comply as to form with the Act and the Rules and
Regulations;
x) The Registration Statement has become
effective under the Act, and the Prospectus Supplement will be filed with
the Commission pursuant to Rule 424(b) thereunder; and
xi) Such counsel has not independently verified
and is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in the
Registration Statement and Prospectus. Based upon discussion with the Bank,
its accountants and others, however, no facts have come to its attention
that cause it to believe that the Prospectus (except for the financial
statements, financial schedules and other financial and statistical data
included therein, as to which such counsel expresses no view), contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
17
(f) The Representative shall have received a letter from
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank, to the
effect that the Representative may rely on those provisions of their opinions to
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings
-------
Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's")
-----------------
with respect to certain matters relating to the transfer of the Receivables to
the Trust, with respect to the perfection of the Trust's interest in the
Receivables and with respect to other related matters.
(g) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 Spread Account 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 Delaware
chartered banks as the same may be applied in the event of the bankruptcy,
insolvency, receivership, reorganization, moratorium or other similar event
in respect of the 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
18
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 Agreements and this
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus;
19
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended,
and the Trust is not required to be registered under the 1940 Act;
(viii) The statements in the Prospectus under the
heading "Certain Legal Aspects of the Receivables", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material respects; and
(ix) Each of the Registration Statement, as of its
effective date, and the Prospectus, as of its date, appeared on its face to
be appropriately responsive in all material respects to the requirements of
the Act and the General Rules and Regulations under the Act, except that in
each case such counsel expresses no opinion as to the financial data
included therein or excluded therefrom or the exhibits to the Registration
Statement, and such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus.
Such opinion shall also state that such counsel has
participated in conferences with officers and representatives of the Bank,
counsel for the Bank, representatives of the independent accountants of the Bank
and the Underwriters at which the contents of the Prospectus and related matters
were discussed and, although such counsel need not pass upon, and need not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and shall have made no independent check
or verification thereof, except for those made under the caption "Certain Legal
Aspects of the Receivables" to the extent set forth in paragraph (viii) above,
on the basis of the foregoing, no facts shall have come to such counsel's
attention that shall have led such counsel to believe that the Prospectus, as of
its date, contained an untrue statement of a material fact or omitted to
20
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) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Battle & ▇▇▇▇▇▇, 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 their 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 and the Spread Account Agreement;
iv) the Supplement and the Spread Account
Agreement have been duly authorized, executed and delivered by the Trustee,
and the Pooling and Servicing Agreement and the Spread Account Agreement
constitute the legal, valid and binding agreements of the Trustee
enforceable against the Trustee in
21
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
Trustee), (y) that the enforceability of the Pooling and Servicing
Agreement and the Spread Account Agreement 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, 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 Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement and
the Spread Account 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 Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement and
the Spread
22
Account 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) The Representative shall have received evidence
satisfactory to the Representative and its counsel that, on or before the
Closing Date, UCC-1 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.
(k) The Class A Certificates shall be rated "AAA" by
Standard & Poor's and "Aaa" by ▇▇▇▇▇'▇ and the Class B Certificates shall be
rated at least "A" by Standard & Poor's and rated at least "A2" by ▇▇▇▇▇'▇ on
the Closing Date, and letters to such effect dated the Closing Date shall have
been received from each Rating Agency.
(l) The Representative shall have received evidence
satisfactory to the Representative that, on or before the Closing Date, the Bank
shall have received the approval of the Office of the State Bank Commissioner of
the State of Delaware to the transaction.
(m) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident thereto shall be
satisfactory in form and substance to the Representative and its counsel, and
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 lia-
23
bilities to which they may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or in any revision or
amendment thereof or supplement thereto or any related preliminary prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Bank will not
-------- -------
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Bank by any Underwriter
specifically for use therein or any revision or amendment thereof or supplement
thereto. The foregoing indemnification with respect to any untrue statement or
omission in any preliminary prospectus or prospectus supplement shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Bank shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if such is required by law, at or prior to the 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
24
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,
25
the indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnifying party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Bank on the one hand and the respective Underwriter on the other from the
offering of the Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Bank on the one hand and of the respective
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Bank on
the one hand and the respective Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Bank bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Bank or by any
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemni-
26
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 contribute any amount
in excess of the underwriting discount or commission applicable to the
Certificates purchased by it hereunder. The Bank and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of any of the equitable considerations referred to
above in this subsection (d). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. Survival. The Bank and the Underwriters agree that the
--------
respective representations, warranties and agreements made by them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed to
be relied upon, in the case of the Bank, by each Underwriter and, in the case of
the Underwriters, by the Bank, notwithstanding any investigation heretofore or
hereafter made by or on behalf of the Bank or the Underwriters, and that the
respective representations, warranties and agreements (including without
limitation the indemnity and contribution agreement) made by the Bank and the
Underwriters herein or in any such certificate or other instrument shall survive
the delivery of and payment for the Certificates.
9. Termination. This Agreement may be terminated in the sole
-----------
discretion of the Underwriters by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 9 shall be without liability of any party to
any other party except as provided in Sections 5 and 7 hereof.
27
10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail on the Closing Date to purchase the Certificates
which it or they are obligated to purchase under this Agreement (the "Defaulted
---------
Securities"), the lead Underwriter shall have the right, within 24 hours
----------
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the applicable class of Certificates,
each of the non-defaulting Underwriters of such class of Certificates shall
be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder with respect to such
class of Certificates bear to the underwriting obligations of all non-
defaulting Underwriters of such class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the applicable class of Certificates, this
Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Bank shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
11. Representation of the Underwriters. Each of the Underwriters
----------------------------------
represents and warrants to, and agrees with, the Bank that (w) it has only
issued or
28
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 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 transmitted by telex, telegraph
or telecopier and confirmed by a similar mailed writing, if to (a) the
Underwriters, addressed to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
World Financial Center, North Tower, New York, New York 10281-1315 Attention:
Secretary, or to such other address as the Representative may designate in
writing to the Bank or (b) the Bank, addressed to the Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer,
telephone: (▇▇▇) ▇▇▇-▇▇▇▇, with copies to First USA, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: W. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President -
Corporate Finance, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ and to
First USA, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇, Esquire, Vice President and Senior Counsel, telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
29
13. Secondary Trusts. Each Underwriter, severally, represents that
----------------
it will not, at any time that such Underwriter is acting as an "underwriter" (as
defined in Section 2(11) of the Act) with respect to the Certificates, transfer,
deposit or otherwise convey any Certificates into a trust or other type of
special purpose vehicle that issues securities or other instruments backed in
whole or in part by, or that represents interests in, such Certificates without
the prior written consent of the Bank.
14. Successors. This Agreement shall inure to the benefit of and
----------
be binding upon the parties hereto and their respective successors and assigns.
Nothing expressed herein is intended or shall be construed to give any person
other than the persons referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
15. Severability of Provisions. Any covenant, provision, agreement
--------------------------
or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
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
30
original, but all of which shall together constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
31
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
for itself and as Representative
of the several Underwriters named
in Schedule A hereto
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ Inc. .... $166,668,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. . $166,666,000
UBS Securities LLC ....... $166,666,000
------------
Total ......... $500,000,000
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Aggregate Principal
Amount of the Class B
Underwriter Certificates
----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ Inc. .... $ 15,060,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. . $ 15,060,000
UBS Securities LLC ....... $ 15,060,000
------------
Total ......... $ 45,180,000
============