EXHIBIT 1.1
CHASE ISSUANCE TRUST
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
(Transferor and Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
[Date]
[Name],
as an Underwriter and as Representative
of the Underwriters named in the Terms Agreement
[Address]
Ladies and Gentlemen:
Chase Issuance Trust, a Delaware statutory trust (the "Issuer"), and
Chase Manhattan Bank USA, National Association (the "Bank"), as originator (in
such capacity, the "Originator") and beneficiary (in such capacity, the
"Beneficiary") of the Issuer, propose to sell the notes of the series, classes
and tranches designated in the applicable Terms Agreement (as hereinafter
defined) (the "Notes"). The Notes will be issued pursuant to the Amended and
Restated Master Indenture, as supplemented by the Amended and Restated Asset
Pool One Supplement and the Amended and Restated CHASEseries Indenture
Supplement, each dated as of October 15, 2004, and a Terms Document having the
date stated in the applicable Terms Agreement (as so supplemented and as
otherwise modified or amended from time to time, the "Indenture"), between the
Issuer and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (in such
capacity, the "Indenture Trustee"). The Issuer will be operated pursuant to a
Second Amended and Restated Trust Agreement, dated as of October 15, 2004 (the
"Trust Agreement"), between the Bank, as Beneficiary, and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"). The Notes will be secured
pursuant to the Amended and Restated Asset Pool One Supplement, dated as of
October 15, 2004 (the "Asset Pool Supplement"), between the Issuer and ▇▇▇▇▇
Fargo Bank, National Association, as collateral agent (the "Collateral Agent"),
by certain assets of the Issuer, including the FUSA Collateral Certificate, the
Chase Collateral Certificate, the FUSA Receivables and the Chase Receivables
(the FUSA Receivables and the Chase Receivables are collectively referred to
herein as the "Receivables"), as discussed below (the "Collateral").
The Bank transfers credit card receivables to the First USA Credit Card
Master Trust (the "First USA Credit Card Master Trust") pursuant to an Amended
and
Restated Pooling and Servicing Agreement, dated as of March 28, 2002 (as
may be further amended from time to time, the "FUSA Pooling and Servicing
Agreement"), as supplemented by the applicable Series Supplement (the "FUSA
Series Supplement"; references herein to the FUSA Pooling and Servicing
Agreement shall mean, unless otherwise specified, the FUSA Pooling and
Servicing Agreement as supplemented by the FUSA Series Supplement), having the
date stated in the applicable Terms Agreement, among the Bank, as transferor
(in such capacity, the "FUSA Transferor") and as servicer (in such capacity,
the "FUSA Servicer"), and The Bank of New York (Delaware), as trustee (in such
capacity, the "First USA Master Trust Trustee").
The assets of the First USA Credit Card Master Trust include,
among other things, receivables ("FUSA Receivables") arising under certain
revolving credit card accounts (the "FUSA Accounts"). Pursuant to the FUSA
Pooling and Servicing Agreement and the Amended and Restated Transfer and
Servicing Agreement, between the Bank, as FUSA Transferor, FUSA Servicer
and FUSA Administrator, and the Issuer, dated as of October 15, 2004 (the
"Transfer and Servicing Agreement"), the Bank has caused the First USA
Credit Card Master Trust to issue to the Issuer a collateral certificate
(the "FUSA Collateral Certificate"). The FUSA Collateral Certificate is an
investor certificate under the FUSA Pooling and Servicing Agreement that
represents undivided interests in certain assets of the First USA Credit
Card Master Trust.
The Bank transfers credit card receivables to the Chase Credit
Card Master Trust (the "Chase Credit Card Master Trust") pursuant to a
Fourth Amended and Restated Pooling and Servicing Agreement, dated as of
October 15, 2004 (as may be further amended from time to time, the "Chase
Pooling and Servicing Agreement"), as supplemented by the applicable Series
Supplement (the "Chase Series Supplement"; references herein to the Chase
Pooling and Servicing Agreement shall mean, unless otherwise specified, the
Chase Pooling and Servicing Agreement as supplemented by the Chase Series
Supplement), having the date stated in the applicable Terms Agreement,
among the Bank, as transferor (in such capacity, the "Chase Transferor")
and as servicer (in such capacity, the "Chase Servicer"), and The Bank of
New York, as trustee (in such capacity, the "Chase Master Trust Trustee").
The assets of the Chase Credit Card Master Trust include, among
other things, Chase Receivables arising under certain Chase Accounts.
Pursuant to the Chase Pooling and Servicing Agreement and the Transfer and
Servicing Agreement, the Bank has caused the Chase Credit Card Master Trust
to issue to the Issuer a collateral certificate (the "Chase Collateral
Certificate"). The Chase Collateral Certificate is an investor certificate
under the Chase Pooling and Servicing Agreement that represents undivided
interests in certain assets of the Chase Credit Card Master Trust. Upon
execution of the Transfer and Servicing Agreement, the Bank shall transfer
the Chase Receivables to the Issuer.
The Notes designated in the applicable Terms Agreement will be
sold in a public offering by the Issuer through [NAME], as the
representative of the underwriters listed on Schedule I to the applicable
Terms Agreement (any underwriter through which
2
Notes are sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the "Underwriters;"
each representative thereof may be referred to herein together as
"Representative," which, if the context herein does require, shall include
[NAME] in its capacity as Underwriter of any Notes or as Representative).
Notes sold to the Underwriters for which [NAME] is the Representative shall
be sold pursuant to a Terms Agreement by and between the Bank, the Trust and
the Representative, a form of which is attached hereto as Exhibit A (a "Terms
Agreement"), which incorporates by reference this Underwriting Agreement (the
"Agreement," which may include the applicable Terms Agreement if the context
so requires). Any Notes sold pursuant to any Terms Agreement may include the
benefits of a reserve account, letter of credit, surety bond, cash collateral
account, cash collateral guaranty, collateral interest, guaranteed rate
agreement, maturity guaranty facility, tax protection agreement, interest
rate swap, spread account or other contract or agreement for the benefit of
the Noteholders of such Series ("Credit Enhancement"). The term "applicable
Terms Agreement" means the Terms Agreement dated the date hereof. To the
extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Indenture, the FUSA Pooling and Servicing
Agreement or the Chase Pooling and Servicing Agreement. Unless otherwise
stated herein or in the applicable Terms Agreement, as the context otherwise
requires or if such term is otherwise defined in the Indenture, the FUSA
Pooling and Servicing Agreement or the Chase Pooling and Servicing Agreement,
each capitalized term used or defined herein or in the applicable Terms
Agreement shall relate only to the Notes designated in the applicable Terms
Agreement and no other Series, Class or Tranche of Notes issued by the
Issuer.
The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a shelf registration statement
on Form S-3 (having the registration number stated in the applicable Terms
Agreement), including a form of prospectus, relating to the Notes, the FUSA
Collateral Certificate and the Chase Collateral Certificate. The registration
statement as amended has been declared effective by the Commission. If any
post-effective amendment has been filed with respect thereto, prior to the
execution and delivery of the applicable Terms Agreement, the most recent such
amendment has been declared effective by the Commission. Such registration
statement, as amended at the time of effectiveness, including all material
incorporated by reference therein and including all information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A under the Act, is referred to in this Agreement as the
"Registration Statement." The Bank proposes to file with the Commission
pursuant to Rule 424(b) ("Rule 424(b)") under the Act a supplement (the
"Prospectus Supplement") to the prospectus included in the Registration
Statement (such prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with the Commission
pursuant to Rule 424(b) is hereinafter referred to as the "Basic Prospectus")
relating to the Notes and the method of distribution thereof. The Basic
Prospectus and the Prospectus Supplement, together with any amendment thereof
or supplement thereto, is hereinafter referred to as the "Prospectus."
3
Upon the execution of the applicable Terms Agreement, the Bank agrees
with the Underwriters as follows:
1. Subject to the terms and conditions herein set forth and in the
applicable Terms Agreement, the Bank agrees to cause the Issuer to
sell and deliver the Notes to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations
and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly,
from the Issuer the respective principal amount of the Notes set forth
opposite such Underwriter's name in the applicable Terms Agreement.
The Notes are to be purchased by the Underwriters at the purchase
price(s) set forth in such Terms Agreement.
2. The Bank understands that the Underwriters intend (i) to make a public
offering of their respective portions of the Notes as soon after the
Registration Statement and this Agreement and the applicable Terms
Agreement have become effective as in the judgment of the
Representative is advisable and (ii) initially to offer the Notes upon
the terms set forth in the Prospectus.
3. Unless otherwise provided in the applicable Terms Agreement, payment
for the Notes shall be made to the Bank or to its order by wire
transfer of same day funds at 10:00 A.M., New York City time, on the
Closing Date (as hereinafter defined), or at such other time on the
same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Bank may agree upon in
writing. The time and date of such payment for the Notes are referred
to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Unless otherwise provided in the applicable Terms Agreement,
payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters
of the Notes registered in the name of Cede & Co. as nominee of The
Depository Trust Company and in such denominations as the
Representative shall request in writing not later than two full
Business Days prior to the Closing Date, with any transfer taxes
payable in connection with the transfer to the Underwriters of the
Notes duly paid by the Bank. The Notes will be made available for
inspection and packaging by the Representative at the office of
[Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP] not later than 1:00 P.M.,
New York City time, on the Business Day prior to the Closing Date.
4. Upon the execution of the applicable Terms Agreement, the Bank
represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having the registration
number stated in the applicable Terms Agreement), including the
Prospectus and
4
such amendments thereto as may have been required on the date
of the applicable Terms Agreement, relating to the Notes, has
been filed with the Commission and such Registration Statement
as amended has become effective. The conditions to the use of a
shelf registration statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been
satisfied with respect to the Bank and the Registration
Statement;
(b) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by
the Commission, and on the effective date of the Registration
Statement, the Registration Statement and the Prospectus
conformed in all respects to the requirements of the Act and the
rules and regulations of the Commission under the Act (the
"Rules and Regulations"), and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and on the date of the
applicable Terms Agreement, the Registration Statement and the
Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) such documents will conform in all
respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date the Registration Statement
and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations, and
neither of such documents will include on the date of the
applicable Terms Agreement and on the Closing Date any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Bank in
writing by such Underwriter through the Representative expressly
for use therein;
(c) As of the Closing Date, the representations and warranties of
the Bank, as Transferor and Servicer, in the FUSA Pooling and
Servicing Agreement, the Chase Pooling and Servicing Agreement
and the Transfer and Servicing Agreement will be true and
correct in all material respects;
(d) The Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of
the United States, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus and to execute, deliver and perform
this Agreement and the applicable Terms Agreement and to
authorize the sale of the Notes, and to consummate the
transactions contemplated by this Agreement and the applicable
Terms Agreement and to consummate the transactions contemplated
by this Agreement and the applicable Terns Agreement and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under
5
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on
the Bank and its subsidiaries, taken as a whole;
(e) (i) The FUSA Collateral Certificate has been duly authorized,
and when executed, issued and delivered pursuant to the FUSA
Pooling and Servicing Agreement, duly authenticated by the First
USA Master Trust Trustee and delivered by the Bank, as
Beneficiary, to the Owner Trustee on behalf of the Issuer
pursuant to the Trust Agreement, will be duly and validly
executed, authenticated, issued and delivered and entitled to
the benefits provided by the FUSA Pooling and Servicing
Agreement. Each increase in the Invested Amount of the FUSA
Collateral Certificate will have been authorized and effected in
accordance with the FUSA Pooling and Servicing Agreement; each
of the FUSA Pooling and Servicing Agreement, this Agreement and
the applicable Terms Agreement have been duly authorized by the
Bank, and, when executed and delivered by the Bank, as
Transferor and Servicer, and the First USA Master Trust Trustee
(in the case of the FUSA Pooling and Servicing Agreement), each
of the FUSA Pooling and Servicing Agreement, this Agreement and
the applicable Terms Agreement will constitute a valid and
binding agreement of the Bank; and the FUSA Collateral
Certificate and the FUSA Pooling and Servicing Agreement conform
to the descriptions thereof in the Prospectus in all material
respects; and (ii) the Chase Collateral Certificate has been
duly authorized, and when executed, issued and delivered
pursuant to the Chase Pooling and Servicing Agreement, duly
authenticated by the Chase Master Trust Trustee and delivered by
the Bank to the Issuer pursuant to the Transfer and Servicing
Agreement, will be duly and validly executed, authenticated,
issued and delivered and entitled to the benefits provided by
the Chase Pooling and Servicing Agreement. Each increase in the
Invested Amount of the Chase Collateral Certificate will have
been authorized and effected in accordance with the Chase
Pooling and Servicing Agreement; each of the Chase Pooling and
Servicing Agreement, this Agreement and the applicable Terms
Agreement have been duly authorized by the Bank, and, when
executed and delivered by the Bank, as Transferor and Servicer,
and the Chase Master Trust Trustee (in the case of the Chase
Pooling and Servicing Agreement), each of the Chase Pooling and
Servicing Agreement, this Agreement and the applicable Terms
Agreement will constitute a valid and binding agreement of the
Bank; and the Chase Collateral Certificate and the Chase Pooling
and Servicing Agreement conform to the descriptions thereof in
the Prospectus in all material respects;
(f) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or governmental body is
required to be obtained or made by the Bank for the
consummation of the transactions contemplated by this
Agreement, the applicable Terms Agreement, the FUSA Pooling
6
and Servicing Agreement or the Chase Pooling and Servicing
Agreement, except such as have been obtained and made under the
Act, such as may be required under state securities laws and the
filing of any financing statements required to perfect the First
USA Credit Card Master Trust's or the Chase Credit Card Master
Trust's interest in the Receivables or the Indenture Trustee's
or Collateral Agent's interest in the Collateral;
(g) The Bank is not in violation of its organizational documents nor
in default in its performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its
properties are bound which would have a material adverse effect
on the transactions contemplated herein or in the FUSA Pooling
and Servicing Agreement or the Chase Pooling and Servicing
Agreement;
(h) The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the FUSA Pooling and Servicing
Agreement and the Chase Pooling and Servicing Agreement and
compliance with the terms and provisions thereof will not result
in a material breach or violation of any of the terms and
provisions of, or constitute a material default under, any
statute, rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Bank, or any of
its properties or any agreement or instrument to which the Bank
is a party or by which the Bank is bound or to which any of the
properties of the Bank is subject, or the organizational
documents of the Bank and the Bank has full power and authority
to enter into this Agreement, the applicable Terms Agreement,
the FUSA Pooling and Servicing Agreement and the Chase Pooling
and Servicing Agreement;
(i) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the
knowledge of the Bank, threatened to which any of the Bank or
its subsidiaries is or may be a party or to which any property
of the Bank or its subsidiaries is or may be the subject which,
if determined adversely to the Bank, could individually or in
the aggregate reasonably be expected to have a material adverse
effect on (i) the general affairs, business, prospects,
management, financial position, stockholders' equity or results
of operations of the Bank and its subsidiaries, as applicable,
taken as a whole or (ii) the interests of the holders of the
Notes; and there are no contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Basic Prospectus which are not filed or
described as required;
(j) This Agreement has been duly authorized, executed and delivered
by the Bank and when executed and delivered by the Bank, each of
this Agreement and the applicable Terms Agreement will
constitute a valid and binding agreement of the Bank.
7
5. Upon the execution of the applicable Terms Agreement, the
Issuer represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having the registration
number stated in the applicable Terms Agreement), including the
Prospectus and such amendments thereto as may have been required
on the date of the applicable Terms Agreement, relating to the
Notes, has been filed with the Commission and such Registration
Statement as amended has become effective. The conditions to the
use of a shelf registration statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, have been
satisfied with respect to the Issuer and the Registration
Statement;
(b) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Issuer, threatened
by the Commission, and on the effective date of the Registration
Statement, the Registration Statement and the Prospectus
conformed in all respects to the requirements of the Act and the
rules and regulations of the Commission under the Act (the
"Rules and Regulations"), and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and on the date of the
applicable Terms Agreement, the Registration Statement and the
Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) such documents will conform in all
respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date the Registration Statement
and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations, and
neither of such documents will include on the date of the
applicable Terms Agreement and on the Closing Date any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Issuer
in writing by such Underwriter through the Representative
expressly for use therein;
(c) As of the Closing Date, the representations and warranties of
the Issuer in the Indenture will be true and correct in all
material respects;
(d) The Issuer has been duly formed and is validly existing as a
statutory trust in good standing under the laws of the State of
Delaware, with power and authority to own its properties and
conduct its business as described in the Prospectus and to
execute, deliver and perform the Indenture, and to authorize the
issuance of the Notes, and to consummate the transactions
contemplated by the Indenture;
8
(e) As of the Closing Date, the Notes have been duly authorized,
and, when executed, issued and delivered pursuant to the
Indenture, duly authenticated by the Indenture Trustee and paid
for by the Underwriters in accordance with this Agreement and
the applicable Terms Agreement, will be duly and validly
executed, authenticated, issued and delivered and entitled to
the benefits provided by the Indenture; the Indenture has been
duly authorized by the Issuer and, when executed and delivered
by the Issuer and the Indenture Trustee (in the case of the
Indenture), each of the Indenture, this Agreement and the
applicable Terms Agreement will constitute a valid and binding
agreement of the Issuer; and the Notes and the Indenture conform
to the descriptions thereof in the Prospectus in all material
respects;
(f) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or governmental body is
required to be obtained or made by the Issuer for the
consummation of the transactions contemplated by this Agreement,
the applicable Terms Agreement or the Indenture, except such as
have been obtained and made under the Act, such as may be
required under state securities laws and the filing of any
financing statements required to perfect the First USA Credit
Card Master Trust's or the Chase Credit Card Master Trust's
interest in the Receivables or the Collateral Agent's interest
in the Collateral;
(g) The Issuer is not in violation of its organizational documents
or in default in its respective performance or observance of any
obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or
its properties are bound which would have a material adverse
effect on the transactions contemplated herein or in the
Indenture. The execution, delivery and performance of this
Agreement, the applicable Terms Agreement, the Indenture and the
issuance and delivery of the FUSA Collateral Certificate, the
Chase Collateral Certificate and the Notes and compliance with
the terms and provisions thereof will not result in a material
breach or violation of any of the terms and provisions of, or
constitute a material default under, any statute, rule,
regulation or order of any governmental agency or body or any
court having jurisdiction over the Issuer or any of its
properties or any agreement or instrument to which the Issuer is
a party or by which the Issuer is bound or to which any of the
properties of the Issuer is subject, or the organizational
documents of the Issuer; and the Issuer has full power and
authority to authorize, issue and sell the Notes as contemplated
by this Agreement, the applicable Terms Agreement and the
Indenture and to enter into the Indenture;
(h) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the
knowledge of the Issuer, threatened to which any of the Issuer
or its subsidiaries is or may be a party or to which any
property of the Issuer or its subsidiaries is or
9
may be the subject which, if determined adversely to the
Issuer, could individually or in the aggregate reasonably be
expected to have a material adverse effect on (i) the general
affairs, business, prospects, management, financial position,
equity or results of operations of the Issuer and its
subsidiaries, taken as a whole, and the interests of the
holders of the Notes, or (ii) the interests of the holders of
the Notes; and there are no contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or the Basic Prospectus which are not
filed or described as required; and
(i) This Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by the Issuer and when
executed and delivered by the Issuer, each of this Agreement and
the applicable Terms Agreement will constitute a valid and
binding agreement of the Issuer.
6. Upon the execution of the applicable Terms Agreement, the Bank and the
Issuer, jointly and severally covenant and agree with the several
Underwriters that:
(a) Immediately following the execution of this Agreement, the Bank
and the Issuer will prepare a Prospectus Supplement setting
forth the amount of Notes covered thereby and the terms thereof
not otherwise specified in the Basic Prospectus, the price at
which such Notes are to be purchased by the Underwriters, the
initial public offering price, the selling concessions and
allowances and such other information as the Bank and the Issuer
deem appropriate. The Bank and the Issuer will transmit the
Prospectus including such Prospectus Supplement to the
Commission pursuant to Rule 424(b) by a means reasonably
calculated to result in filing with the Commission pursuant to
Rule 424(b).
(b) The Issuer will, at the request of the Representative, deliver
(or the Bank will cause the Issuer to deliver), at the expense
of the Bank, to the Representative, two signed copies of the
Registration Statement and each amendment thereto, in each case
including exhibits, and to each other Underwriter a conformed
copy of the Registration Statement and each amendment thereto,
in each case without exhibits and, during the period mentioned
in Section 6(e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably
request.
(c) Before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time
the Registration Statement becomes effective, the Bank or the
Issuer will furnish to the Representative a copy of the proposed
amendment or supplement.
(d) The Bank and the Issuer will advise the Representative promptly,
and will confirm such advice in writing, (i) when any amendment
to the
10
Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the
receipt by the Bank or the Issuer of any notification with
respect to any suspension of the qualification of the Notes for
offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(e) The Bank will, if during such period of time after the first
date of the public offering of the Notes as in the opinion of
counsel for the Underwriters a Prospectus relating to the Notes
is required by law to be delivered in connection with sales by
an Underwriter or dealer, (i) any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading, or (ii) it is necessary to amend or supplement
the Prospectus to comply with the law, forthwith prepare and
furnish, at the expense of the Bank, to the Underwriters and to
the dealers (whose names and addresses the Representative will
furnish to the Bank and the Issuer) to which Notes may have been
sold by the Representative on behalf of the Underwriters and to
any other dealers upon request, a copy of such amendments or
supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the
Prospectus will comply with the law.
(f) The Issuer will endeavor to qualify (or the Bank will cause the
Issuer to qualify) the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for
distribution of the Notes and to pay all fees and expenses
(including fees and disbursements of counsel to the
Underwriters) reasonably incurred in connection with such
qualification and in connection with the determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as the Representative may designate; provided,
however, that neither the Bank nor the Issuer shall be obligated
to qualify to do business in any jurisdiction in which it is not
currently so qualified; and provided further that neither the
Bank nor the Issuer shall be required to file a general consent
to service of process in any jurisdiction.
11
(g) On or before December 31 of the year following the year in which
the Closing Date occurs, the Bank will cause the Issuer to make
generally available to Noteholders and to the Representative as
soon as practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter
of the Issuer occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(h) Upon written request by the Representative, so long as any of
the Notes are outstanding, the Issuer or the Bank will furnish
to the Representative copies of all reports or other
communications (financial or other) furnished to holders of the
Notes and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange.
(i) Upon written request by the Representative, the Bank, as
Servicer, will furnish to the Representative copies of each
certificate and the annual statements of compliance delivered to
the First USA Master Trust Trustee pursuant to Article III of
the FUSA Pooling and Servicing Agreement and to the Chase Master
Trust Trustee pursuant to Article III of the Chase Pooling and
Servicing Agreement, and the annual independent certified public
accountant's servicing reports furnished to the First USA Master
Trust Trustee pursuant to Article III of the FUSA Pooling and
Servicing Agreement and to the Chase Master Trust Trustee
pursuant to Article III of the Chase Pooling and Servicing
Agreement, by first-class mail promptly after such request and
following delivery of such statements and reports to the First
USA Master Trust Trustee and Chase Master Trust Trustee, as
applicable.
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, neither the Bank nor the Issuer
will offer, sell, contract to sell or otherwise dispose of any
credit card backed securities with the same term and other
characteristics identical to the Notes without the prior written
consent of the Representative.
(k) The Indenture will be qualified pursuant to the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(l) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or rating agencies rating the
Notes (each, a "Note Rating Agency") is conditional upon the
furnishing of documents or the taking of any other reasonable
action by the Bank or the Issuer agreed upon on or prior to the
Closing Date, the Bank or the Issuer, as applicable, shall
furnish such documents and take any such other reasonable
action.
12
7. The Bank will pay all costs and expenses incident to the performance
of its obligations and the obligations of the Issuer under this
Agreement and the applicable Terms Agreement, including, without
limiting the generality of the foregoing, (i) all costs and expenses
incident to the preparation, issuance, execution, authentication and
delivery of the Notes, (ii) all costs and expenses incident to the
preparation, printing and filing under the Act or the Exchange Act of
the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) all costs and expenses incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Notes under the laws of such
jurisdictions as the Underwriters may designate (including fees of
counsel for the Underwriters and their disbursements), (iv) all costs
and expenses related to any filing with the National Association of
Securities Dealers, Inc., (v) all costs and expenses in connection
with the printing (including word processing and duplication costs)
and delivery of this Agreement, the applicable Terms Agreement, the
FUSA Pooling and Servicing Agreement, the Chase Pooling and Servicing
Agreement, the Indenture and any Blue Sky Memorandum and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus as herein provided, (vi) the reasonable
fees and disbursements of the Bank's counsel and accountants, (vii)
the reasonable fees and disbursements of the accountants and (viii)
all costs and expenses payable to each Note Rating Agency in
connection with the rating of the Notes, except that the Underwriters
agree to reimburse the Bank for an amount, if any, specified in the
applicable Terms Agreement on the Closing Date for application toward
such expenses. It is understood that, except as specifically provided
in Sections 7, 9, 10 and 13 of this Agreement, the Underwriters will
pay all of their own fees, costs and expenses (including the fees and
disbursements of its counsel), transfer taxes and any advertising
expenses in connection with sales or offers from the Underwriters to
third parties.
8. The several obligations of the Underwriters hereunder are subject to
the performance by the Bank and the Issuer of their respective
obligations hereunder and under the applicable Terms Agreement and to
the following additional conditions:
(a) On the Closing Date, the Representative shall have received a
letter, dated the Closing Date, of PricewaterhouseCoopers LLP,
Certified Public Accountants (or such other independent
accountants as shall be named in the applicable Terms Agreement)
confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that the engagement to apply
agreed-upon procedures was performed in accordance with the
standards established by the American Institute of Certified
Public Accountants, and substantially in the form heretofore
agreed and otherwise in form and in substance satisfactory to
its counsel.
13
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Rules and Regulations and in
accordance with Section 6(a) of this Agreement; and, as of the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings
for such purpose shall be pending before or, to the knowledge of
the Bank or the Issuer, threatened by the Commission; and all
requests for additional information from the Commission with
respect to the Registration Statement shall have been complied
with to the satisfaction of the Representative.
(c) The representations and warranties of the Bank and the Issuer
contained herein are true and correct in all material respects
on and as of the Closing Date as if made on and as of the
Closing Date, and each of the Bank and the Issuer shall have
complied with all agreements and all conditions on its part to
be performed or satisfied hereunder and, as applicable, under
the applicable Terms Agreement at or prior to the Closing Date.
(d) The Representative shall have received an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Bank and the
Issuer, subject to customary qualifications, assumptions,
limitations and exceptions, dated the Closing Date, in form and
substance reasonably satisfactory to the Representative and its
counsel, with respect to general corporate matters, the validity
of the Notes, the Registration Statement, the Prospectus
Supplement and the Prospectus, the effectiveness of such
Registration Statement and the information contained in each of
the Registration Statement, the Prospectus Supplement and the
Prospectus.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Bank and
the Issuer, shall also state that they have participated in
conferences with representatives of the Bank and its
accountants, the Underwriters and counsel to the Underwriters
concerning the Registration Statement and the Prospectus and
have considered the matters required to be stated therein and
the matters stated therein, although they are not independently
verifying the accuracy, completeness or fairness of such
statements and based upon and subject to the foregoing, nothing
has come to such counsel's attention to cause such counsel to
believe that the Registration Statement (excluding any exhibits
filed therewith), at the time it became effective, contained an
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus,
as of the Closing Date, contains any untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel has
not been requested to and does not make any comment in this
paragraph with respect to the financial statements, supporting
schedules and other
14
financial or statistical information contained in the
Registration Statement or the Prospectus).
(e) The Representative shall have received an opinion of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank,
the Issuer and the Underwriters, subject to customary
qualifications, assumptions, limitations and exceptions, dated
the Closing Date, in form and substance reasonably satisfactory
to the Representative and its counsel, with respect to general
corporate matters, the validity of the Notes, the Registration
Statement, the Prospectus Supplement and the Prospectus and the
effectiveness of such Registration Statement and the information
contained in each of the Registration Statement, the Prospectus
Supplement and the Prospectus.
(f) The Representative shall have received an opinion or opinions of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for
the Bank and the Issuer, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Closing Date,
in form and substance reasonably satisfactory to the
Representative and its counsel, with respect to certain matters
relating to the transfer of the Receivables to the First USA
Credit Card Master Trust [and the Chase Credit Card Master
Trust], the perfection of the First USA Credit Card Master
Trust's [and the Chase Credit Card Master Trust's] interest in
the Receivables, the transfer of the FUSA Collateral
Certificate, the Chase Collateral Certificate and the
Receivables from the Bank to the Issuer and the perfection of
the Issuer's interest in the FUSA Collateral Certificate and the
Chase Collateral Certificate, and the pledge of the FUSA
Collateral Certificate and the Chase Collateral Certificate and
the Receivables by the Issuer to the Collateral Agent and the
perfection of the Collateral Agent's interest in the FUSA
Collateral Certificate, the Chase Collateral Certificate and the
Receivables.
(g) The Representative shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank and the
Issuer, such opinion or opinions, subject to customary
qualifications, assumptions, limitations and exceptions, dated
the Closing Date, in form and substance reasonably satisfactory
to the Representative, with respect to the applicability of
certain provisions of the Federal Deposit Insurance Act, as
amended by the Financial Institutions, Reform, Recovery and
Enforcement Act of 1989 with respect to the effect of
receivership on the Bank's security interest in the Receivables
and the Issuer's and the Indenture Trustee's security interest
in the Receivables, the FUSA Collateral Certificate and the
Chase Collateral Certificate, and with respect to other related
matters in a form previously approved by the Representative and
its counsel. In addition, the Representative shall have received
a reliance letter with respect to any opinion that the Bank is
required to deliver to the Note Rating Agency.
15
(h) The Representative shall have received an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special tax counsel for the Bank and the
Issuer, subject to customary qualifications, assumptions,
limitations and exceptions, dated the Closing Date, in form and
substance reasonably satisfactory to the Representative and its
counsel, that (i) the Notes will be characterized as debt for
Federal income tax purposes; (ii) the Issuer will not be, and
the issuance of the Notes will not cause any master trust to be,
classified as an association, or publicly traded partnership,
taxable as a corporation for Federal income tax purposes; and
(iii) the statements in the Prospectus under "Federal Income Tax
Consequences," insofar as such statements constitute a summary
of the U.S. legal matters or documents referred to therein,
fairly present such legal matters or documents.
(i) The Representative shall have received an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇, counsel to the First USA Master Trust Trustee, subject to
customary qualifications, assumptions, limitations and
exceptions, dated the Closing Date, in form and substance
reasonably satisfactory to the Representative and its counsel,
with respect to general corporate matters relating to the First
USA Master Trust Trustee
(j) The Representative shall have received an opinion of ▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Chase Master Trust Trustee,
subject to customary qualifications, assumptions, limitations
and exceptions, dated the Closing Date, in form and substance
reasonably satisfactory to the Representative and its counsel,
with respect to general corporate matters relating to the Chase
Master Trust Trustee.
(k) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, subject to
customary qualifications, assumptions, limitations and
exceptions dated the Closing Date, in form and substance
reasonably satisfactory to the Representative and its counsel,
with respect to general corporate matters relating to the Owner
Trustee.
(l) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, special Delaware counsel to the Issuer, subject
to customary qualifications, assumptions, limitations and
exceptions dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, with respect
to certain matters relating to the Issuer and the establishment
thereof.
(m) The Representative shall have received an opinion of internal
legal counsel to ▇▇▇▇▇ Fargo Bank, National Association, subject
to customary qualifications, assumptions, limitations and
exceptions dated the Closing Date, in form and substance
reasonably satisfactory to the Representative and its counsel,
with respect to general corporate matters.
16
(n) In addition, the Representative shall have received a reliance
letter with respect to any opinion that the Bank is required to
deliver to the Note Rating Agency.
(o) The Representative shall have received a certificate, dated the
Closing Date, of a Vice President or more senior officer of the
Bank in which such officer, to his or her knowledge after due
inquiry, shall state that the representations and warranties of
the Bank in this Agreement are true and correct in all material
respects on and as of the Closing Date, that the Bank has
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date, that the representations and warranties of the
Bank, as Transferor in the FUSA Pooling and Servicing Agreement
and Chase Pooling and Servicing Agreement are true and correct
in all material respects as of the dates specified in the FUSA
Pooling and Servicing Agreement or Chase Pooling and Servicing
Agreement, as applicable, that the Registration Statement has
become effective, that no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
threatened by the Commission and that, subsequent to the date of
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Bank's credit
card business except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(p) The Representative shall have received a certificate, dated the
Closing Date, of an authorized representative of the Issuer in
which such representative, to his or her knowledge after due
inquiry, shall state that the representations and warranties of
the Issuer in this Agreement are true and correct in all
material respects on and as of the Closing Date, that the Issuer
has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder and under the
applicable Terms Agreement at or prior to the Closing Date, that
the representations and warranties of the Issuer in the
Indenture are true and correct in all material respects as of
the dates specified in the Indenture, that the Registration
Statement has become effective, that no stop order suspending
the effectiveness of the Registration Statement have been issued
and no proceedings for that purpose have been issued or are
threatened by the Commission and that, subsequent to the date of
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Issuer's
business except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(q) The Representative shall have received evidence satisfactory to
them that the Notes shall be rated in accordance with the
applicable Terms Agreement by each Note Rating Agency.
17
The Bank will furnish the Representative, or cause it to be
furnished with, such number of conformed copies of such opinions, certificates,
letters and documents as they reasonably requests.
9. (a) The Bank and the Issuer, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person,
if any, who controls such Underwriter within the meaning of
Section 15 of the Act and under Section 20 of the Exchange
Act against any and all losses, claims, damages or
liabilities to which they may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or in any revision or
amendment thereof or supplement thereto or any related
preliminary prospectus, or arise out of or are based upon,
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
each such indemnified party for any legal or other expense
reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that none of the Bank or the Issuer will
be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in
conformity with written information furnished to the Bank or
the Issuer by any Underwriter specifically for use therein or
any revision or amendment thereof or supplement thereto. The
foregoing indemnity with respect to any untrue statement or
omission in any preliminary prospectus or prospectus
supplement shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Notes if a copy of
the Prospectus (as then amended or supplemented if the Bank
or the Issuer shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if such is required by law,
at or prior to the written confirmation of the sale of such
Notes to such person and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability provided that the Bank or
the Issuer shall have identified to such Underwriter in
writing such defect prior to the delivery of such written
confirmation by such Underwriter to such person.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Bank, its directors, each of
its officers who signed the Registration Statement, the
Issuer and each person, if any, who controls the Bank or the
Issuer within the meaning of Section 15 of the Act and under
Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities to which they may become
subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise
18
out of or are based upon any untrue statements or
omissions, or alleged untrue statements of any material
fact or omissions, made in the Registration Statement, the
Prospectus, or in any revision or amendment thereof or
supplement thereto or any related preliminary prospectus or
prospectus supplement, or arise out of or are based upon
the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in
conformity with written information furnished to the Bank
or the Issuer by such Underwriter through the
Representative expressly for use in the Registration
Statement or such preliminary prospectus or the Prospectus,
or any revision or amendment thereof or supplement thereto
and agrees to reimburse such indemnified party for any
legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, damage or liability or action as such expenses are
incurred.
(c) Each indemnified party shall give prompt written notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement;
provided, that the indemnifying party is not materially
prejudiced by such failure to notify. An indemnifying party
may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel separate from
their own counsel for all indemnified parties in connection
with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same
general allegations or circumstances.
10. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section
9(a) is for any reason held to be unavailable other than in accordance
with its terms, the Bank and the Issuer and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement
incurred by the Bank and the Issuer and the Underwriters, as incurred,
in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount
and commissions bear to the initial public offering price appearing
thereon and the Bank and the Issuer are jointly and severally
responsible for the balance. Notwithstanding the provisions of this
Section 10, each Underwriter shall not be required to contribute any
amount in excess of the underwriting discount or commission applicable
to the Notes purchased by it hereunder. The Bank and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 10 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such
19
purpose) or by any other method of allocation which does not take
account of any of the equitable considerations referred to above in
this Section 10. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act shall have the same rights to contribution as
such Underwriter, and each director of the Bank, each officer of the
Bank who signed the Registration Statement, and each person, if any,
who controls the Bank within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Bank.
11. Notwithstanding anything herein contained, this Agreement and the
applicable Terms Agreement may be terminated in the absolute
discretion of the Representative, by notice given to the Bank, if
after the execution and delivery of this Agreement and the applicable
Terms Agreement and prior to the Closing Date there shall not have
occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Owner Trust, the First USA Credit Card Master Trust, the Chase Credit
Card Master Trust or the Bank which, in the judgment of the
Representative, materially impairs the investment quality of the Notes
or makes it impractical or inadvisable to market the Notes; (ii) any
suspension or limitation on trading in securities generally on the New
York Stock Exchange or the National Association of Securities Dealers
National Market system, or any setting of minimum prices for trading
on such exchange or market system; (iii) any suspension of trading of
any securities of JPMorgan Chase & Co. on any exchange or in the
over-the-counter market which materially impairs the investment
quality of the Notes or makes it impractical or inadvisable to market
the Notes; (iv) any banking moratorium declared by Federal, Delaware
or New York authorities; or (v) any outbreak or escalation of major
hostilities or armed conflict, any declaration of war by Congress, or
any other substantial national or international calamity or emergency
if, in the judgment of the 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 Notes.
12. If any Underwriter defaults in its obligations to purchase Notes
hereunder and the aggregate principal amount of the Notes that such
defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of such Notes, the
Representative may make arrangements satisfactory to the Bank for
the purchase of such Notes by other persons, including the
non-defaulting Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be
obligated, in proportion to their commitments hereunder, to
purchase the Notes that such defaulting Underwriter agreed but
failed to purchase. If any Underwriter so defaults and the aggregate
principal amount of the Notes with respect to which such default or
defaults occur exceeds 10% of the total principal amount of such Notes
and arrangements satisfactory to the Representative and the Bank for
the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate
20
without liability on the part of any non-defaulting Underwriter or
the Bank, except as provided in Section 7 of this Agreement. Nothing
herein will relieve a defaulting Underwriter from liability for 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.
13. If for any reason other than as set forth in Section 12 of this
Agreement the purchase of the Notes by the Underwriters is not
consummated, the Bank shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 7 of this Agreement and
the respective obligations of the Bank, the Issuer, and the
Underwriters pursuant to Sections 9 and 10 of this Agreement shall
remain in effect. If the purchase of the Notes by the Underwriters is
not consummated for any reason other than solely because of the
occurrence of any event specified in clauses (ii), (iv) or (v) of
Section 11 of this Agreement, the Bank will reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering
of the Notes.
14. Any action by the Underwriters hereunder may be taken by the
Representative on behalf of the Underwriters, and any such action
taken by the Representative shall be binding upon the Underwriters.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters
shall be given to [NAME] at [270 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ 10017], Attention: [▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇], or to such other address as
the Representative may designate in writing to the Bank. Notices to
the Bank shall be given to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President,
telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to
JPMorgan Chase & Co., 1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Senior Vice
President Structured Finance, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇.
15. (a) Except as specifically set forth in the applicable Terms
Agreement, each Underwriter, severally, represents and
warrants to the Bank and the Issuer that it has not and will
not use any information that constitutes "Computational
Materials," as defined in the Commission's No-Action Letter,
dated May 20, 1994, addressed to ▇▇▇▇▇▇, Peabody Acceptance
Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation (as made generally applicable to
registrants, issuers and underwriters by the Commission's
response to the request of the Public Securities Association
dated May 27, 1994), with respect to the offering of the
Notes.
21
(b) Except as specifically set forth in the applicable Terms
Agreement, each Underwriter, severally, represents and
warrants to the Bank and the Issuer that it has not and will
not use any information that constitutes "ABS Term Sheets,"
as defined in the Commission's No-Action Letter, dated
February 13, 1995, addressed to the Public Securities
Association, with respect to the offering of the Notes.
16. Each Underwriter, severally, represents that it will not, at any time
that such Underwriter is acting as an "underwriter" (as defined in
Section 2(11) of the Act) with respect to the Notes, transfer, deposit
or otherwise convey any Notes into a trust or other type of special
purpose vehicle that is sponsored by such Underwriter or an Affiliate
of such Underwriter and that issues securities or other instruments
backed in whole or in part by, or that represents interests in, such
Notes without the prior written consent of the Bank.
17. This Agreement shall become effective upon execution and delivery of
the applicable Terms Agreement.
18. This Agreement shall inure to the benefit of and be binding upon the
Bank, the Issuer, the Underwriters, any controlling persons referred
to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
19. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the
same instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
22
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Bank, the Issuer and
the Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Transferor and as Servicer
By: ______________________
Name:
Title:
BANK ONE ISSUANCE TRUST
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Beneficiary on behalf of the Issuer
By: ______________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[NAME],
as Underwriter and as Representative
of the Underwriters named in
Schedule I to the Terms Agreement
By: _____________________________
Name:
Title:
EXHIBIT A
CHASE ISSUANCE TRUST
SERIES ____
ASSET BACKED NOTES
TERMS AGREEMENT
Dated:
To: CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Re: Underwriting Agreement dated _____________
Series Designation: ____________
Underwriters:
-------------
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Notes:
-------------------
Initial
Principal Interest Price to
Amount Rate or Formula Public
---------------------- ---------------------- ---------------------
[Class ]
[Class ]
[Class ]
Interest Payment Dates: _______________, _______________,
----------------------
______________ and _______________, commencing _____________ __, _____.
Note Ratings[s]:
---------------
Indenture:
---------
Indenture Supplement:
--------------------
Pooling and Servicing Agreement:
-------------------------------
Series Supplement:
-----------------
A-1
Purchase Price:
--------------
The purchase price payable by the Underwriters for the Notes covered
by this Agreement will be the following percentage of the principal amounts to
be issued:
[Per Class [ ] Notes __________%]
[Per Class [ ] Notes __________%]
[Per Class [ ] Notes __________%]
Registration Statement:
----------------------
Underwriting Commissions, Concessions and Discounts:
---------------------------------------------------
The Underwriters' discounts and commissions, the concessions that the
Underwriters may allow to certain dealers, and the discounts that such dealers
may reallow to certain other dealers, each expressed as a percentage of the
principal amount of the Notes, shall be as follows:
Underwriting
Discounts and Selling
Concessions Concessions Reallowance
----------------------------- ------------------ --------------------
[Class ] ___% ___% ___%
[Class ] ___% ___% ___%
[Class ] ___% ___% ___%
[Reimbursement of Expenses:
--------------------------
The Underwriters shall reimburse the Bank for an amount not to exceed
$__________ for application towards expenses.]
Closing Date: Pursuant to Rule 15c6-1(d) under the Securities Exchange
Act of 1934, as amended, the Underwriters, the Bank and the Issuer hereby agree
that the Closing Date shall be __________ __, _____, __________ a.m., New York
Time.
Location of Closing:
-------------------
Payment for the Notes:
---------------------
Opinion Modifications:
---------------------
The Underwriters agree, severally and not jointly, subject to the
terms and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Notes set forth
opposite their names on Schedule I hereto.
A-2
_____________________
As Representative of the
Underwriters named in
Schedule I hereto
By: ___________________________
Name:
Title:
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By: ____________________________
Name:
Title:
CHASE ISSUANCE TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Beneficiary on behalf of the Issuer
By: ____________________________
Name:
Title:
A-3
SCHEDULE I
UNDERWRITERS
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Asset Backed Notes, [Class ]
Principal Amount
----------------
[Names of Underwriters] $
______________
$______________
A-4