First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1999-_
Class B Floating Rate Asset Backed Certificates,
Series 1999-_
UNDERWRITING AGREEMENT
__________ __, 1999
[Underwriter],
as Representative of the
Underwriters set forth herein
[Address]
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to ___________________
_______________ (the "Representative"), ____________________, ____________
__________________ and as underwriters (collectively with the Representative,
the "Underwriters" and each individually, an "Underwriter") of First USA
Credit Card Master Trust $_____ aggregate principal amount of Class A Floating
Rate Asset Backed Certificates, Series 1999-_ (the "Class A Certificates")
and of First USA Credit Card Master Trust $ aggregate principal amount of
Class B Floating Rate Asset Backed Certificates, Series 1999-_ (the "Class
B Certificates" and, together with the Class A Certificates, the
"Certificates"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement dated as of September 1, 1992, as amended as of the
date hereof (the "Master Pooling and Servicing Agreement"), as supplemented
by the Series 1999-_ Supplement, dated as of the Closing Date (the
"Supplement" and, together with the Master Pooling and Servicing Agreement,
the "Pooling and Servicing Agreement"), each by and between the Bank, as
transferor and servicer, and The Bank of New York (Delaware), a Delaware
banking corporation, as trustee (in such capacity, the "Trustee").
Each Certificate will represent an undivided interest in
certain assets of First USA Credit Card Master Trust (the "Trust"). The
property of the Trust will include, among other things, receivables (the
"Receivables") arising under certain MasterCard(R) and VISA(R)1 revolving
credit card accounts (the "Accounts").
Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement.
1. Representations, Warranties and Agreements of the
Bank. The Bank represents and warrants to, and agrees with, the
Underwriters as follows:
(a) The Bank has filed with the Securities and
Exchange Commission (the "Commission"), on Form S-3, a registration
statement (Registration No. 333- ) pursuant to Rule 415 under the
Securities Act of 1933, as amended (such act, the "Act"). The Bank may have
filed one or more amendments thereto each of which amendments has
previously been furnished to each of the Underwriters. The Bank will also
file with the Commission a prospectus supplement in accordance with Rule
424(b) under the Act. As filed, the registration statement, including any
amendments thereto, the form of prospectus supplement, and any prospectuses
or prospectus supplements filed pursuant to Rule 424(b) under the Act
relating to the Certificates shall, except to the extent that the
Underwriters shall agree in writing to a modification, be in all
substantive respects in the form furnished to the Representative prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest preliminary prospectus supplement
which has previously been furnished to the Underwriters) as the Bank has
advised the Underwriters, prior to the Execution Time, will be included or
made therein.
For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein
(including any Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed
on Form 8-K), is hereinafter referred to as the "Registration Statement,"
and any prospectus supplement (the "Prospectus Supplement") relating to the
Certificates, as filed with the Commission pursuant to and in accordance
with Rule
-----------------------------
1 VISA(R) and MasterCard(R) are registered trademarks of
Visa USA Incorporated and MasterCard International Incorporated,
respectively.
424(b) ("Rule 424(b)") under the Act is, together with the prospectus filed
as part of the Registration Statement (such prospectus, in the form it
appears in the Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b) being hereinafter
referred to as the "Basic Prospectus"), hereinafter referred to as the
"Prospectus". "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus
was first filed and on the Closing Date, the Prospectus did or will, comply
in all material respects with the applicable requirements of the Act and
the rules and regulations of the Commission under the Act (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not or
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Bank makes no representation or warranty as to
the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Bank by the Underwriters specifically for use
in connection with preparation of the Registration Statement or the
Prospectus.
(c) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, (i)
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory status or business prospects of
the Bank and (ii) the Bank has not entered into any transaction or
agreement (whether or not in the ordinary course of business) material to
the Bank that, in either case, would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates,
otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and
in good standing as a national banking association under the laws of the
United States, and has full corporate power, authority and legal right to
own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement, the Pooling and
Servicing Agreement, the Certificates and the Transfer and Administration
Agreement, dated as of the Closing Date (the "Transfer and Administration
Agreement"), between the Bank and Bankers Trust (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee on behalf of the First USA Secured Note Trust 1999-_ (in such
capacity, the "Owner Trustee").
(e) This Agreement has been duly authorized and
validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been
duly authorized and, when executed and delivered by the Bank and assuming
the due authorization, execution and delivery thereof by the Trustee, will
constitute a valid and binding obligation of the Bank enforceable against
the Bank in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is pursuant to a proceeding in
equity or at law). As of the Closing Date, the Pooling and Servicing
Agreement will have been duly and validly executed by the Bank and will
conform in all material respects to the description thereof contained in
the Prospectus.
(g) The Certificates have been duly and validly
authorized by all required action of the Bank, and, when duly and validly
executed by the Bank, authenticated by the Trustee and delivered in
accordance with the Pooling and Servicing Agreement, and delivered to and
paid for by the Underwriters as provided herein, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. As of the Closing Date, the Certificates will have been duly and
validly executed by the Bank, and will conform in all material respects to
the descriptions thereof contained in the Prospectus.
(h) The Transfer and Administration Agreement has
been duly authorized, and, when executed and delivered by the Bank and
assuming the due authorization, execution and delivery thereof by the other
parties thereto, will constitute a valid and binding obligation of the Bank
enforceable against the Bank in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is pursuant
to a proceeding in equity or at law). As of the Closing Date, the Transfer
and Administration Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date
to the Trustee pursuant to the Pooling and Servicing Agreement will conform
in all material respects with the description thereof contained in the
Prospectus.
(j) Neither the transfer of the Receivables to
the Trustee, nor the issuance, sale and delivery of the Certificates, nor
the execution or delivery of this Agreement, the Transfer and
Administration Agreement or the Pooling and Servicing Agreement, nor the
consummation of any of the transactions herein or therein contemplated, nor
the fulfillment of the terms of the Certificates, the Pooling and Servicing
Agreement, the Transfer and Administration Agreement or this Agreement,
will result in the breach of any term or provision of the organizational
documents or by-laws of the Bank, or conflict with, result in a breach,
violation or acceleration of, or constitute a default under, the terms of
any indenture or other agreement or instrument to which the Bank is a party
or by which it or its properties is bound or may be affected or any
statute, order or regulation applicable to the Bank of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Bank or will result in the creation of any
Lien upon any property or assets of the Bank (other than as contemplated in
the Pooling and Servicing Agreement). The Bank is not a party to, bound by,
or in breach or violation of, any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over it, that
materially and adversely affects the ability of the Bank to perform its
obligations under this Agreement, the Pooling and Servicing Agreement, the
Transfer and Administration Agreement or the Certificates.
(k) Except as disclosed in the Base Prospectus ▇▇▇▇▇
the heading "Certain Legal Aspects of the Receivables," there are no
charges, investigations, actions, suits, claims or proceedings before or by
any court, regulatory body, administrative agency, governmental body or
arbitrator now pending or, to the best knowledge of the Bank, threatened
that, separately or in the aggregate (i) could have a material adverse
effect on (x) the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory status
or business prospects of the Bank or (y) the ability of the Bank to perform
its obligations under this Agreement, the Transfer and Administration
Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii)
assert the invalidity of this Agreement, the Transfer and Administration
Agreement, the Pooling and Servicing Agreement, or the Certificates, (iii)
seek to prevent the issuance, sale or delivery of the Certificates or any
of the transactions contemplated by this Agreement, the Transfer and
Administration Agreement or the Pooling and Servicing Agreement or (iv)
seek to affect adversely the Federal income tax or ERISA attributes of the
Certificates described in the Prospectus.
(l) No Federal, state or local tax, including
intangibles tax or documentary stamp tax, the non-payment of which would
result in the imposition of a Lien on the Receivables or of transferee
liability on the Trustee, is imposed with respect to the conveyance of the
Receivables from the Bank to the Trust, or in connection with the issuance
of the Certificates by the Trust, or the holding of the Receivables by the
Trust, or in connection with any of the other transactions contemplated by
this Agreement, the Transfer and Administration Agreement or the Pooling
and Servicing Agreement. Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Certificates or
the execution and delivery of this Agreement, the Transfer and
Administration Agreement or the Pooling and Servicing Agreement have been
or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations
and warranties of the Bank in the Pooling and Servicing Agreement, with
regard to itself as both transferor and servicer and the Receivables
(individually and in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required for the execution, delivery and performance by the Bank
of or compliance by the Bank with this Agreement, the Transfer and
Administration Agreement, the Pooling and Servicing Agreement, or the
Certificates or the consummation of the transactions contemplated hereby or
thereby except the filing of Uniform Commercial Code financing statements
with respect to the Receivables.
(o) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP who have audited certain
financial statements of Bank One Corporation are independent public
accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement will have an aggregate balance of not less than the sum of (i)
the aggregate outstanding principal amount of all classes of all Series
outstanding at the close of business on the Closing Date (including Series
1999-_), plus (ii) 4% of the amount stated in clause (i).
(q) The Trust is not, and will not be as a result
of the issuance and sale of the Certificates, an "investment company" or a
company "controlled by" an investment company within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
2. Purchase, Sale, Payment and Delivery of Certificates. On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Bank agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Bank, on , 1999 or on such
other date as shall be mutually agreed upon by the Bank and the
Underwriters (the "Closing Date"), the amount and type of Certificates set
forth in Schedule A opposite the name of each such Underwriter. The Class A
Certificates being purchased by the Underwriters hereunder are to be
purchased at a purchase price equal to % of the principal amount thereof.
The Class B Certificates being purchased by the Underwriters hereunder are
to be purchased at a purchase price equal to % of the principal amount
thereof.
The closing of the sale of the Certificates (the "Closing")
shall be held at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 Effective Date the Underwriters propose to offer
the Certificates for sale to the public as set forth in the
Prospectus.
(b) Each Underwriter may provide to prospective
investors the 1999-_ Term Sheet, dated, , 1999, relating to the
Certificates (the "1999-_ Term Sheet") prepared by the Bank and attached
hereto as Exhibit A, subject to the following conditions:
(i) Such Underwriter shall have complied
with the requirements of (A) the no-action letter, dated May
20, 1994, issued by the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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 Letter"), (B) the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter")
and (C) the requirements of the no-action letter, dated April 5,
1996, issued by the Commission to Greenwood Trust Company (the
"Greenwood Letter" and, together with the ▇▇▇▇▇▇/PSA Letter and the
PSA Letter, the "No-Action Letters").
(ii) Each Underwriter, severally, represents
and warrants to the Bank that (a) it has not and will not use any
information that constitutes "Computational Materials" with respect
to the offering of the Certificates unless it has obtained the
prior written consent of the Bank to such usage and (b) other than
the 1999-_ Term Sheet, it has not and will not use any information
that constitutes "Series Term Sheets," "ABS Term Sheets,"
"Structural Term Sheets" or "Collateral Term Sheets" with respect
to the offering of the Certificates. For purposes hereof, "Series
Term Sheet" shall have the meaning given such term in the Greenwood
Letter and "Computational Materials" shall have the meaning given
such term in the No-Action Letters. For purposes hereof, "ABS Term
Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
shall have the meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and
agrees with the several Underwriters as follows:
(a) Immediately following the execution of this
Agreement, the Bank will prepare a Prospectus Supplement setting forth the
amount of Certificates covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such Certificates are
to be purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the Bank
deems appropriate. The Bank will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing that complies with all applicable
provisions of Rule 424(b). The Bank will advise the Representative promptly
of any such filing pursuant to Rule 424(b).
(b) The Bank will advise the Representative promptly
of any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplement without the
consent of the Representative, which consent will not unreasonably be
withheld; the Bank will also advise the Representative promptly of any
request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information;
and the Bank will also advise the Representative promptly of any amendment
or supplement to the Registration Statement or the Prospectus and of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose and the Bank will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act and the Rules and Regulations thereunder, the Bank promptly will
advise the Representative thereof and will prepare and file, or cause to be
prepared and filed, with the Commission an amendment or supplement which
will correct such statement or omission, or an amendment or supplement
which will effect such compliance. Any such filing shall not operate as a
waiver or limitation on any condition or right of the Underwriters
hereunder.
(d) As soon as practicable, but not later than
sixteen months after the original effective date of the Registration
Statement, the Bank will cause the Trust to make generally available to
Certificateholders an earnings statement (or statements) of the Trust
covering a period of at least twelve months beginning after the effective
date of the Registration Statement which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 promulgated thereunder.
(e) The Bank will furnish to the Underwriters copies
of the Registration Statement (one of which will be signed and will include
all exhibits), each related preliminary prospectus or prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Bank will promptly, from time to time, take
such action as any Underwriter may reasonably request to qualify the
Certificates for offering and sale under the securities laws of such
jurisdictions as such Underwriter may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Certificates, provided that in connection therewith the Bank shall
not be required to qualify as a foreign corporation or dealer in securities
or to file a general consent to service of process in any jurisdiction.
(g) For a period from the date of this Agreement
until the retirement of the Certificates, the Bank will deliver to the
Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee
pursuant to the Pooling and Servicing Agreement, as soon as such statements
and reports are furnished to the Trustee.
(h) So long as any of the Certificates are
outstanding, the Bank will furnish to the Representative (i) as soon as
practicable after the end of the fiscal year all documents required to be
distributed to Certificateholders or filed with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any order of the Commission thereunder and (ii) from time to time, any
other information concerning the Bank filed with any government or
regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided
with respect to the Certificates by the rating agency or agencies that
initially rate the Certificates is conditional upon the furnishing of
documents or the taking of any other actions by the Bank, the Bank shall
use its best efforts to furnish such documents and take any such other
actions.
(j) The Bank will file with the Commission a
report on Form 8-K with respect to the 1999-_ Term Sheet and a report on
Form 8-K setting forth all Computational Materials described in Section 3
hereof provided to the Bank by any of the Underwriters and identified by
such Underwriter as such within the time period allotted for such filing
pursuant to the No- Action Letters.
5. Payment of Expenses. The Bank will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing of the 1999-_ Term Sheet and any Computational
Materials described in Section 3 hereof, (ii) the printing of the
Prospectus and of each amendment or supplement thereto, (iii) the
preparation of this Agreement, the Transfer and Administration Agreement
and the Pooling and Servicing Agreement, (iv) the preparation, issuance and
delivery of the Certificates to the Underwriters, (v) the fees and
disbursements of the Bank's counsel and accountants, (vi) the qualification
of the Certificates under securities laws in accordance with the provisions
of Section 4(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters and in connection with the
preparation of any blue sky and legal investment survey, (vii) the printing
and delivery to the Underwriters of copies of the 1999-_ Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing
and delivery to the Underwriters of copies of the Prospectus and of each
amendment or supplement thereto, (ix) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment survey prepared
in connection with the Certificates, (x) any fees charged by rating
agencies for the rating of the Certificates, (xi) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc. and (xii) the fees and expenses of the Trustee and
its counsel. The Underwriters have agreed to reimburse the Bank for
expenses not to exceed $ incurred by the Bank in connection with the
issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Bank herein, to the accuracy of the
statements of officers of the Bank made pursuant to the provisions hereof,
to the performance by the Bank of its obligations hereunder and to the
following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall
have been filed (if required) with the Commission in accordance with the
Rules and Regulations and Section 1 hereof, and prior to the Closing Date,
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Bank, shall be contemplated by the
Commission or by any authority administering any state securities or blue
sky law.
(b) On or prior to the date of the Prospectus and on
or prior to the Closing Date, the Underwriters shall have received a letter
or letters, dated as of the date of the Prospectus and as of the Closing
Date, respectively, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, Certified Public Accountants,
substantially in the form of the drafts to which the Representative has
previously agreed and otherwise in form and substance satisfactory to the
Representative and its counsel.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, or the Bank which, in the judgment of the
Representative, materially impairs the investment quality of the
Certificates or makes it impractical or inadvisable to market the
Certificates; (ii) any suspension or limitation on trading in securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers National Market system, or any setting of minimum prices
for trading on such exchange or market system; (iii) any suspension of
trading of any securities of BANK ONE CORPORATION on any exchange or in the
over-the-counter market which materially impairs the investment quality of
the Certificates or makes it impractical or inadvisable to market the
Certificates; (iv) any banking moratorium declared by Federal, Delaware or
New York authorities; or (v) any outbreak or escalation of major
hostilities or armed conflict, any declaration of war by Congress, or any
other substantial national or international calamity or emergency if, in
the judgment of the Representative, the effect of any such outbreak,
escalation, declaration, calamity, or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Certificates.
(d) At the Closing Date, the Bank shall have
furnished to the Representative certificates of a vice president or more
senior officer of the Bank as to the accuracy of the representations and
warranties of the Bank herein at and as of the Closing Date, as to the
performance by the Bank of all of its obligations hereunder to be performed
at or prior to such Closing Date, and as to such other matters as the
Representative may reasonably request.
(e) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Associate General Counsel of
the Bank, shall have furnished to the Representative her written opinion,
addressed to the Representative and dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, substantially
to the effect that:
(i) The Bank has been duly organized and is
validly existing as a national banking association in good standing
under the laws of the United States with full power and authority
(corporate and other) to own its properties and conduct its
business, as presently owned and conducted by it, and to enter into
and perform its obligations under this Agreement, the Transfer and
Administration Agreement and the Pooling and Servicing Agreement
(collectively referred to in this subsection (e) as the
"Agreements"), and the Certificates and had at all times, and now
has, the power, authority and legal right to acquire, own and
transfer the Receivables;
(ii) The Certificates have been duly
authorized, executed and delivered by the Bank and, when duly
authenticated by the Trustee in accordance with the terms of the
Pooling and Servicing Agreement and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement,
will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement;
(iii) Each of the Pooling and Servicing
Agreement and the Transfer and Administration Agreement has been
duly authorized, executed and delivered by the Bank and constitutes
the legal, valid and binding agreement of the Bank enforceable
against the Bank in accordance with its terms, subject, as to
enforceability, to (A) the effect of bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation and other
similar laws relating to or affecting the rights and remedies of
creditors generally, and (B) the application of principles of
equity (regardless of whether considered and applied in a
proceeding in equity or at law) and the rights and powers of the
FDIC;
(iv) This Agreement has been duly authorized,
executed and delivered by the Bank;
(v) No consent, approval, authorization or
order of any governmental agency or body is required for (A) the
execution, delivery and performance by the Bank of its obligations
under the Agreements or the Certificates, or (B) the issuance or
sale of the Certificates, except such as have been obtained under
the Act and as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the
Certificates by the Underwriters and the filing of Uniform
Commercial Code financing statements with respect to the
Receivables;
(vi) To the best knowledge of such counsel,
neither the execution and delivery of the Agreements or the
Certificates by the Bank nor the performance by the Bank of the
transactions therein contemplated nor the fulfillment of the terms
thereof does or will result in any violation of any statute or
regulation or any order or decree of any court or governmental
authority binding upon the Bank or its property, or conflict with,
or result in a breach or violation of any term or provision of, or
result in a default under any of the terms and provisions of, the
Bank's organizational documents or by-laws or any material
indenture, loan agreement or other material agreement to which the
Bank is a party or by which the Bank is bound;
(vii) To the knowledge of such counsel after
due investigation, there are no legal or governmental proceedings
pending to which the Bank is a party or to which the Bank is
subject which, individually or in the aggregate (A) would have a
material adverse effect on the ability of the Bank to perform its
obligations under the Agreements or the Certificates, (B) assert
the invalidity of the Agreements or the Certificates, (C) seek to
prevent the issuance, sale or delivery of the Certificates or any
of the transactions contemplated by the Agreements or (D) seek to
affect adversely the Federal income tax or ERISA attributes of the
Certificates described in the Prospectus;
(viii) The Registration Statement and the
Prospectus (except for the financial statements, financial
schedules and other financial and operating data included therein,
as to which such counsel expresses no opinion) comply as to form
with the Act and the Rules and Regulations;
(ix) The Registration Statement has become
effective under the Act, and the Prospectus Supplement will be
filed with the Commission pursuant to Rule 424(b) thereunder; and
(x) Such counsel has not independently
verified and is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and Prospectus.
Based upon her discussions with the Bank, its accountants and
others, however, no facts have come to her attention that cause her
to believe that the Prospectus (except for the financial
statements, financial schedules and other financial and statistical
data included therein, as to which such counsel expresses no
opinion), contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
(f) The Representative shall have received a letter
from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the
Bank, to the effect that the Representative may rely on its opinion to
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.("Standard & Poor's"), and Fitch
IBCA, Inc. ("Fitch") with respect to certain bank regulatory matters.
(g) The Representative shall have received an opinion
of ▇▇▇▇▇▇▇, 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 Transfer and Administration Agreement
(collectively referred to in this subsection (h) as the
"Agreements") constitutes the valid and binding obligation of the
Bank, enforceable against the Bank in accordance with its terms,
except (x) to the extent that the enforceability thereof may be
limited by (a) bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and the rights of
creditors of national banking associations as the same may be
applied in the event of the bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar event in respect of the
Bank, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and (c) the qualification that certain of the remedial provisions
of the Agreements may be unenforceable in whole or in part, but the
inclusion of such provisions does not affect the validity of the
Agreements taken as a whole, and the Agreements, together with
applicable law, contain adequate provisions for the practical
realization of the benefits of the security created thereby and (y)
such counsel expresses no opinion as to the enforceability of any
rights to contribution or indemnification which are violative of
public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be duly and validly
issued and outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement;
(iii) This Agreement has been duly authorized,
executed and delivered by the Bank;
(iv) Neither the execution, delivery or
performance by the Bank of the Agreements or this Agreement, nor
the compliance by the Bank with the terms and provisions thereof or
hereof, will contravene any provision of any applicable law;
(v) Based on such counsel's review of
applicable laws, no governmental approval, which has not been
obtained or taken and is not in full force and effect, is required
to authorize or is required in connection with the execution,
delivery or performance of the Agreements by the Bank;
(vi) The Certificates, the Pooling and
Servicing Agreement and this Agreement conform in all material
respects to the descriptions thereof contained in the Prospectus;
(vii) The Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of 1939,
as amended, and the Trust is not required to be registered under
the 1940 Act;
(viii) The statements in the Prospectus under
the heading "Certain Legal Aspects of the Receivables", to the
extent that they constitute matters of law or legal conclusions
with respect thereto, have been reviewed by such counsel and are
correct in all material respects; and
(ix) Each of the Registration
Statement, as of its effective date, and the Prospectus, as of its
date, appeared on its face to be appropriately responsive in all
material respects to the requirements of the Act and the Rules and
Regulations under the Act, except that in each case such counsel
expresses no opinion as to the financial data included therein or
excluded therefrom or the exhibits to the Registration Statement,
and such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus.
Such opinion shall also state that such
counsel has participated in conferences with officers and representatives
of the Bank, counsel for the Bank, representatives of the independent
accountants of the Bank and the Underwriters at which the contents of the
Prospectus and related matters were discussed and, although such counsel
need not pass upon, and need not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Prospectus and shall have made no independent check or verification
thereof, except for those made under the caption "Certain Legal Aspects of
the Receivables" to the extent set forth in paragraph (viii) above, on the
basis of the foregoing, no facts shall have come to such counsel's
attention that shall have led such counsel to believe that the Prospectus,
as of its date, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,
except that such counsel need not express an opinion or belief with respect
to the financial statements, schedules and other financial information
included in such Prospectus or excluded therefrom.
(i) ▇▇▇▇▇▇▇, Woods, 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 its written
opinion, addressed to the Representative and dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) BONY is a banking corporation duly
organized, validly existing and in good standing under the laws of
the State of New York and has the corporate power and authority to
execute, deliver and perform its obligations under the Agency
Agreement;
(ii) The Certificates have been duly
authenticated by BONY pursuant to the Agency Agreement and in
accordance with the Pooling and Servicing Agreement;
(iii) The Trustee is a banking corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and
authority to execute, deliver and perform its obligations under the
Pooling and Servicing Agreement;
(iv) The Supplement has been duly authorized,
executed and delivered by the Trustee, and the Pooling and
Servicing Agreement constitutes a legal, valid and binding
agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, except (x) as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally (as
such laws would apply in the event of the insolvency, receivership,
conservatorship or reorganization of, or other similar occurrence
with respect to, the Trustee), (y) that the enforceability of the
Pooling and Servicing Agreement against the Trustee may be subject
to the application of general principles of equity (regardless of
whether considered or applied in a proceeding in equity or at law),
and (z) that certain remedial provisions of the Pooling and
Servicing Agreement may be unenforceable, in whole or in part
against the Trustee, but the inclusion of such provisions does not
affect the validity of the Pooling and Servicing Agreement, taken
as a whole, and the Pooling and Servicing Agreement, together with
applicable law, contains adequate provisions for the practical
realization of the benefits of the security provided thereby. Such
counsel expresses no opinion as to the enforceability of any rights
to contribution or indemnification that are violative of public
policy underlying any law, rule or regulation;
(v) The execution and delivery by the Trustee
of the Supplement, and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement, do not
conflict with or result in a violation of (x) any law or regulation
of the United States of America or the State of Delaware governing
the banking or trust activities of the Trustee or (y) the amended
and restated articles of association or by-laws of the Trustee; and
(vi) The execution and delivery by the Trustee
of the Supplement, and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement, do not
require any approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of Delaware having jurisdiction over the banking or trust
activities of the Trustee, except such as have been obtained, taken
or made.
(j) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel
for First USA Secured Note Trust 1999-_ (the "Owner Trust") in connection
with the Transfer and Administration Agreement and the Indenture dated as
of the Closing Date, between the Owner Trust and The Bank of New York, as
indenture trustee, shall have furnished to the Representative its written
opinion, addressed to the Representative and dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel,
substantially to the effect that:
(i) The Owner Trust is a business trust duly
formed, validly existing and in good standing under the laws of the
State of Delaware and has the power and authority to execute,
deliver and perform its obligations under the Transfer and
Administration Agreement and the Indenture;
(ii) The Transfer and Administration
Agreement, the Indenture and the secured notes issued by the Owner
Trust pursuant to the Indenture (the "Notes") have been duly
authorized, executed and delivered by the Owner Trust, and the
Transfer and Administration Agreement, the Indenture and the Notes
constitute legal, valid and binding agreements of the Owner Trust,
enforceable against the Owner Trust in accordance with their
respective terms, except (x) as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally (as such
laws would apply in the event of the insolvency, receivership,
conservatorship or reorganization of, or other similar occurrence
with respect to, the Owner Trustee), (y) that the enforceability of
the Transfer and Administration Agreement, the Indenture and the
Notes against the Owner Trust may be subject to the application of
general principles of equity (regardless of whether considered or
applied in a proceeding in equity or at law), and (z) that certain
remedial provisions of the Transfer and Administration Agreement
and the Indenture may be unenforceable, in whole or in part against
the Owner Trust, but the inclusion of such provisions does not
affect the validity of the Transfer and Administration Agreement
and the Indenture, taken as a whole, and the Transfer and
Administration Agreement, together with applicable law, contains
adequate provisions for the practical realization of the benefits
of the security provided thereby. Such counsel expresses no opinion
as to the enforceability of any rights to contribution or
indemnification that are violative of public policy underlying any
law, rule or regulation;
(iii) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the Indenture
and the Notes and the performance by the Owner Trust of its
obligations under the Transfer and Administration Agreement, the
Indenture and the Notes do not conflict with or result in a
violation of (x) any law or regulation of the State of Delaware
applicable to the Owner Trust, or (y) the Trust Agreement; and
(iv) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the Indenture
and the Notes and the performance by the Owner Trustee of its
obligations under the Transfer and Administration Agreement, the
Indenture and the Notes do not require any approval, authorization
or other action by, or filing with, any governmental authority of
the State of Delaware having jurisdiction over the Owner Trust,
except such as have been obtained, taken or made.
(k) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner
Trustee in connection with the Trust Agreement, dated as of , 1999 (the
"trust Agreement"), between the Bank and the Owner Trustee, shall have
furnished to the Representative its written opinion, addressed to the
Representative and dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, substantially to the
effect that:
(i) The Owner Trustee is a banking corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and
authority to execute, deliver and perform its obligations under the
Trust Agreement;
(ii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee, and the
Trust Agreement constitutes a legal, valid and binding agreement of
the Owner Trustee, enforceable against the Owner Trustee in
accordance with its terms, except (x) as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally (as
such laws would apply in the event of the insolvency, receivership,
conservatorship or reorganization of, or other similar occurrence
with respect to, the Owner Trustee), (y) that the enforceability of
the Trust Agreement against the Owner Trustee may be subject to the
application of general principles of equity (regardless of whether
considered or applied in a proceeding in equity or at law), and (z)
that certain remedial provisions of the Trust Agreement may be
unenforceable, in whole or in part against the Owner Trustee, but
the inclusion of such provisions does not affect the validity of
the Trust Agreement, taken as a whole, and the Trust Agreement,
together with applicable law, contains adequate provisions for the
practical realization of the benefits of the security provided
thereby. Such counsel expresses no opinion as to the enforceability
of any rights to contribution or indemnification that are violative
of public policy underlying any law, rule or regulation;
(iii) The execution and delivery by the Owner
Trustee of the Trust Agreement, and the performance by the Owner
Trustee of its obligations under the Trust Agreement, do not
conflict with or result in a violation of (x) any law or regulation
of the United States of America or the State of Delaware governing
the banking or trust activities of the Owner Trustee, or (y) the
organizational documents of the Owner Trustee; and
(iv) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the Owner
Trustee of its obligations under the Trust Agreement do not require
any approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State
of Delaware having jurisdiction over the banking or trust
activities of the Owner Trustee, except such as have been obtained,
taken or made.
(l) The Representative shall have received evidence
satisfactory to the Representative and its counsel that, on or before the
Closing Date, financing statements have been filed in the appropriate
filing offices of the State of Delaware and such other jurisdictions as
counsel to the Bank deems appropriate to reflect the interest of the
Trustee in the Receivables.
(m) The Class A Certificates shall be rated "AAA" by
Standard & Poor's, "Aaa" by ▇▇▇▇▇'▇ and "AAA" by Fitch and the Class B
Certificates shall be rated at least "A" by Standard & Poor's, at least
"A2" by ▇▇▇▇▇'▇ and at least "A+" by Fitch on the Closing Date, and letters
to such effect dated the Closing Date shall have been received from each
Rating Agency.
(n) All proceedings in connection with
the transactions contemplated by this Agreement and all documents incident
thereto shall be satisfactory in form and substance to the Representative
and its counsel, and the Representative and its counsel shall have received
such information, certificates and documents as any of them may reasonably
request.
7. Indemnification and Contribution.
(a) The Bank agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act and under Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities to
which they may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or in any revision
or amendment thereof or supplement thereto or any related preliminary
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 the Act and under
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities to which they may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or
in any revision or amendment thereof or supplement thereto or any related
preliminary prospectus or prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Bank by such Underwriter specifically for use
therein or any revision or amendment thereof or supplement thereto, and
agrees to reimburse such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage or liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under this Section 7 of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any
liability which it may have to any indemnified party other than under this
Section 7. In the event that any such action is brought against any
indemnified party and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
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 indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
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.
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 underwriter, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such
24-hour period, then:
(a) if the aggregate amount of Defaulted 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 passed on and shall only issue or pass on in the
United Kingdom any document received by it in connection with the issue of
the Certificates to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 (as amended) or who is a person to whom the document may
otherwise lawfully be issued or passed on, (x) it has complied and shall
comply with all applicable provisions of the Financial Services Act 1986
and other applicable laws and regulations with respect to anything done by
it in relation to the Certificates in, from or otherwise involving the
United Kingdom and (y) if that Underwriter is an authorized person under
the Financial Services Act 1986, it has only promoted and shall only
promote (as that term is defined in Regulation 1.02 of the Financial
Services (Promotion of Unregulated Schemes) Regulations 1991) to any person
in the United Kingdom the scheme described in the Prospectus if that person
is of a kind described either in Section 76(2) of the Financial Services
Act 1986 or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991.
12. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered, sent by overnight courier or mailed by registered
mail, postage prepaid and return receipt requested, or transmitted by
telex, telegraph or telecopier and confirmed by a similar mailed writing,
if to (a) the Underwriters, addressed to , Attention: , or to such other
address as the Representative may designate in writing to the Bank or (b)
the Bank, addressed to the Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and
Associate General Counsel, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (302)
884-8361, with a copy to Bank One Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Transaction
Manager, Structured Finance, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (614)
248-9544.
13. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of
the Act) with respect to the Certificates, transfer, deposit or otherwise
convey any Certificates into a trust or other type of special purpose
vehicle that issues securities or other instruments backed in whole or in
part by, or that represents interests in, such 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 original, but all of which
shall together constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will be a binding agreement among the undersigned in
accordance with its terms.
Very truly yours,
FIRST USA BANK, N.A.,
as Transferor and Servicer
By:_____________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
[Underwriter],
for itself and as Representative
of the Underwriters named in
Schedule A hereto
By:________________________________
Name:
Title:
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ----------------------
Total . . . . . . . . . . . . $
=======================
Aggregate Principal
Amount of the Class B
Underwriter Certificates
----------- ----------------------
Total . . . . . . . . . . . . $
=======================