EXHIBIT 1.1
First USA Credit Card Master Trust
Class A 5.28% Asset Backed Certificates,
Series 1998-9
Class B 5.55% Asset Backed Certificates,
Series 1998-9
UNDERWRITING AGREEMENT
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December 15, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
First Chicago Capital Markets, Inc.,
as Representatives of the
Several Underwriters named
in Schedule I hereto (the "Representatives")
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c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the "Bank"), has
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duly authorized the issuance and sale to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and First
Chicago Capital Markets, Inc. (the "Representatives"), Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
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Chase Securities Inc., and ▇▇▇▇▇▇ Bothers Inc. as underwriters (collectively
with the Representatives, the "Underwriters" and each individually, an
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"Underwriter") of First USA Credit Card Master Trust $650,000,000 aggregate
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principal amount of Class A 5.28% Asset Backed Certificates, Series 1998-9 (the
"Class A Certificates") and of First USA Credit Card Master Trust $44,828,000
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aggregate principal amount of Class B 5.55% Asset Backed Certificates, Series
1998-9 (the "Class B Certificates" and, together with the Class A Certificates,
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the "Certificates"). The Certificates will be issued pursuant to a Pooling and
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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
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Series 1998-9 Supplement, dated as of the Closing Date (the "Supplement" and,
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together with the Master Pooling and Servicing Agreement, the "Pooling and
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Servicing Agreement"), each by and between the Bank, as transferor and servicer,
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and The Bank of New York (Delaware), a Delaware banking corporation, as trustee
(in such capacity, 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)//1/ 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
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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 Representatives 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 registration statement, or the
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/1/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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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
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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 final
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prospectus supplement (the "Prospectus Supplement") relating to the
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Certificates, filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act is, together with the prospectus (such
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prospectus, in the form it appears in the Registration Statement or in the form
filed with the Commission pursuant to Rule 424(b) together with the Prospectus
Supplement being hereinafter referred to as the "Basic Prospectus"), hereinafter
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referred to as the "Prospectus". "Execution Time" shall mean the date and time
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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,
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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
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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
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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
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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 1998-9 (in such capacity, the "Owner Trustee").
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(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.
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(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) There are no charges, investigations, actions, suits, claims
or proceedings before or by any court,
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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.
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(o) Each of (i) PricewaterhouseCoopers LLP who have audited
certain consolidated financial statments of BANC ONE CORPORATION ("BANC ONE"),
the parent of the Bank prior to the merger of BANC ONE with BANK ONE CORPORATION
("BANK ONE") effective October 2, 1998 and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP who have
been retained as auditors for BANK ONE, 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 1998-9), plus (ii) 4% of the
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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").
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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 December 22, 1998 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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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
99.59773% 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 99.36055% 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
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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.
(b) Each Underwriter may provide to prospective investors the
1998-9 Series Term Sheet, dated December 15, 1998, relating to the Certificates
(the "1998-9 Series Term Sheet") prepared by the Bank and attached hereto as
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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
▇▇▇▇▇▇, Peabody 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-
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action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter") and (C) the requirements
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of the no-action letter, dated April 5, 1996, issued by the Commission to
Greenwood Trust Company (the "Greenwood Letter" and, together with the
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▇▇▇▇▇▇/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 1998-9 Series 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
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Letter and "Computational Materials" shall have the meaning given such term
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in the No-Action Letters. For purposes hereof, "ABS Term Sheets,"
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"Structural Term Sheets" and "Collateral Term Sheets" shall have the
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meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and agrees
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with the several Underwriters as follows:
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(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 Representatives promptly of any such filing pursuant to Rule
424(b).
(b) The Bank will advise the Representatives 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
Representatives, which consent will not unreasonably be withheld; the Bank will
also advise the Representatives 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
Representatives 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 Representatives 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
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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 Representatives 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 Representatives (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)
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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
Representatives reasonably request.
(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
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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 1998-9 Series 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 1998-9 Series 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 1998-9 Series 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
$184,914 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
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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 Representatives have previously agreed and otherwise
in form and substance satisfactory to the Representatives and their 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 Representatives, 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
Representatives, the effect of any such outbreak, escalation, declaration,
calamity, or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to the
Representatives certificates of a vice president
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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
Representatives may reasonably request.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of the Bank, shall
have furnished to the Representatives her written opinion, addressed to the
Representatives and dated the Closing Date, in form and substance satisfactory
to the Representatives and their 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
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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)
13
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
14
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 his discussions with
the Bank, its accountants and others, however, no facts have come to its
attention that cause him 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.
15
(f) The Representatives shall have received a letter from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank, to the
effect that the Representatives may rely on its opinion to ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's"), Standard & Poor's Ratings, a division of The McGraw-
-------
Hill Companies, Inc.("Standard & Poor's"), and Fitch IBCA, Inc. ("Fitch") with
----------------- -----
respect to certain bank regulatory matters.
(g) The Representatives shall have received an opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Bank, addressed
to the Representatives, dated the Closing Date and satisfactory in form and
substance to the Representatives and their 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 Representatives 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
16
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
17
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 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
18
financial information included in such Prospectus or excluded therefrom.
(i) McGuire, 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 Representatives its written opinion, addressed to the Representatives and
dated the Closing Date, in form and substance satisfactory to the
Representatives and their 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
19
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 1998-9 (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
20
to the Representatives its written opinion, addressed to the Representatives and
dated the Closing Date, in form and substance satisfactory to the
Representatives and their 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
21
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 dated as of December 18, 1998, between the Bank and the Owner
Trustee, establishing First USA Secured Note Trust 1998-9, shall have furnished
to the Representatives its written opinion, addressed to the Representatives and
dated the Closing Date, in form and substance satisfactory to the
Representatives and their 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;
22
(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
23
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 Representatives shall have received evidence satisfactory
to the Representatives and their 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 Moody's and "AAA" by Fitch and the Class B Certificates shall
be rated at least "A" by Standard & Poor's, at least "A2" by Moody's 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 Representatives and their counsel, and
the Representatives and their 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
24
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
25
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
26
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
27
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 Underwriters 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
28
Representatives 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 Representatives or the Bank shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
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 ▇▇▇
▇▇▇▇ (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 ▇▇▇ ▇▇▇▇ 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
29
the Financial Services ▇▇▇ ▇▇▇▇, 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 ▇▇▇ ▇▇▇▇ 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, shall be given to the Representatives, c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., Seven World Trade Center, 33/rd/ Floor, New York, New York 10048,
Attention: ABS Trading Syndicate, and to First Chicago Capital Markets, Inc., ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Securities Structuring Group, or to such other address as the Representatives
may designate in writing to the Bank or (b) the Bank, addressed to the Bank at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Executive Vice President and General Counsel, telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to BANK ONE CORPORATION, ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Transaction Manager, Structured Finance, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇.
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
30
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.
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, N.A.,
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.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Acting on behalf of themselves and
First Chicago Capital Markets, Inc.
as the Representatives of the
several Underwriters
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc... $130,000,000
First Chicago Capital
Markets, Inc........... 130,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc.... 130,000,000
Chase Securities Inc....... 130,000,000
▇▇▇▇▇▇ Brothers Inc........ 130,000,000
------------
Total............ $650,000,000
============
Aggregate Principal
Amount of the Class B
Underwriter Certificates
----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc... $ 8,968,000
First Chicago Capital
Markets, Inc........... 8,965,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc.... 8,965,000
Chase Securities Inc....... 8,965,000
▇▇▇▇▇▇ Brothers Inc........ 8,965,000
------------
Total............ $ 44,828,000
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