EXHIBIT 1.1
First USA Credit Card Master Trust
Class A 6.42% Asset Backed Certificates,
Series 1997-6
Class B 6.58% Asset Backed Certificates,
Series 1997-6
UNDERWRITING AGREEMENT
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August 12, 1997
▇.▇. ▇▇▇▇▇▇ Securities Inc.
as Representative of the
Underwriters set forth herein
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"),
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has duly authorized the issuance and sale to ▇.▇. ▇▇▇▇▇▇ Securities Inc. (the
"Representative"), Banc One Capital Corporation, Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
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Merrill, Lynch, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as underwriters (the "Underwriters" and each individually, an
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"Underwriter") of First USA Credit Card Master Trust $1,300,000,000 aggregate
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principal amount of Class A 6.42% Asset Backed Certificates, Series 1997-6 (the
"Class A Certificates") and $117,470,000 aggregate principal amount of Class B
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6.58% Asset Backed Certificates, Series 1997-6 (the "Class B Certificates" and
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together with the Class A Certificates, the "Certificates"). The Certificates
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will be issued pursuant to a Pooling and Servicing Agreement, dated as of
September 1, 1992 (the "Master Pooling and Servicing Agreement"), as
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supplemented by the Series 1997-6 Supplement dated as of the Closing Date (the
"Supplement" and together with the Master Pooling and Servicing Agreement, the
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"Pooling and Servicing Agreement"), each by and between the Bank, as transferor
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and servicer, and The Bank of New York (Delaware) (the "Trustee").
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Each Certificate will represent an undivided interest in certain
assets of First USA Credit Card Master Trust (the "Trust"). The property of the
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Trust will include, among other things, receivables (the "Receivables") arising
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under certain
MasterCard/(R)/ and VISA/(R)*/ revolving credit card accounts (the "Accounts").
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The Bank
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represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange Commission
(the "Commission"), on Form S-3, a registration statement (Registration No. 333-
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24227) pursuant to Rule 415 under the Securities Act of 1933, as amended (such
act, the "Act"). The Bank may have filed one or more amendments thereto each of
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which amendments has previously been furnished to each of the Underwriters. The
Bank will also file with the Commission a prospectus supplement in accordance
with Rule 424(b) under the Act. As filed, the registration statement as
amended, the form of prospectus supplement, and any prospectuses or prospectus
supplements filed pursuant to Rule 424(b) under the Act relating to the
Certificates shall, except to the extent that the Underwriters shall agree in
writing to a modification, be in all substantive respects in the form furnished
to the Representative prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest preliminary
prospectus supplement which has previously been furnished to the Underwriters)
as the Bank has advised the Underwriters, prior to the Execution Time, will be
included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
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time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. Such registration
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statement, as amended at the Effective Time, and including the exhibits thereto
and any material incorporated by reference therein, is hereinafter referred to
as the "Registration Statement," and any prospectus supplement (the "Prospectus
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Supplement") relating to the Certificates, as filed with the Commission pursuant
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to and in
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/*/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together with the
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prospectus filed as part of the Registration Statement (such prospectus, in the
form it appears in the Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424(b) being hereinafter
referred to as the "Basic Prospectus"), hereinafter referred to as the
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"Prospectus". "Execution Time" shall mean the date and time that this Agreement
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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 (the "Rules and Regulations"); on the Effective Date, the
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Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not
or will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
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that the Bank makes no representation or warranty as to the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Bank by the Underwriters specifically for use in connection with preparation of
the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank and (ii) the Bank has not entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Bank that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Certificates,
otherwise than as set forth or contemplated in the Prospectus.
(d) The Bank is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware and is
qualified to transact business in
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and is in good standing under the laws of each state in which its activities
require such qualification, and has full power, authority and legal right to own
its properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement, the Spread Account Agreement dated as of
the Closing Date by and among the Bank, as Transferor and Servicer, the Trustee
and The Bank of New York, as initial collateral agent (the "Spread Account
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Agreement"), the Pooling and Servicing Agreement, and the Certificates.
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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.
(h) The Spread Account Agreement has been duly authorized, and
when executed and delivered by the Bank and assuming the due authorization,
execution and delivery thereof by the other parties thereto, will constitute a
valid and binding obligation of the Bank enforceable against the Bank in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the
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Spread Account Agreement will have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee
pursuant to the Pooling and Servicing Agreement will conform in all material
respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor
the issuance, sale and delivery of the Certificates, nor the execution or
delivery of this Agreement, the Spread Account Agreement, or the Pooling and
Servicing Agreement, nor the consummation of any of the transactions herein or
therein contemplated, nor the fulfillment of the terms of the Certificates, the
Pooling and Servicing Agreement, the Spread Account Agreement, or this
Agreement, will result in the breach of any term or provision of the charter or
by-laws of the Bank, or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Bank is a party or by which it or its
properties is bound or may be affected or any statute, order or regulation
applicable to the Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Bank or will result
in the creation of any Lien upon any property or assets of the Bank (other than
as contemplated in the Pooling and Servicing Agreement). The Bank is not a party
to, bound by, or in breach or violation of, any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over it, that materially and adversely affects
the ability of the Bank to perform its obligations under this Agreement, the
Pooling and Servicing Agreement, the Spread Account Agreement, or the
Certificates.
(k) There are no charges, investigations, actions, suits, claims
or proceedings before or by any court, regulatory body, administrative agency,
governmental body or arbitrator now pending or, to the best knowledge of the
Bank, threatened that, separately or in the aggregate (i) could have a material
adverse effect on (x) the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory status or
business prospects of the Bank or (y) the ability of the Bank to perform its
obligations under this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates, (ii) assert the invalidity of this
Agreement, the Spread Account Agreement, the Pooling and Servicing Agreement, or
the Certificates, (iii) seek
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to prevent the issuance, sale or delivery of the Certificates or any of the
transactions contemplated by this Agreement, the Spread Account Agreement, or
the Pooling and Servicing Agreement or (iv) seek to affect adversely the federal
income tax or ERISA attributes of the Certificates described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or
documentary stamp tax, the non-payment of which would result in the imposition
of a Lien on the Receivables or of transferee liability on the Trustee, is
imposed with respect to the conveyance of the Receivables from the Bank to the
Trust, or in connection with the issuance of the Certificates by the Trust, or
the holding of the Receivables by the Trust, or in connection with any of the
other transactions contemplated by this Agreement, the Spread Account Agreement,
or the Pooling and Servicing Agreement. Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of the
Certificates or the execution and delivery of this Agreement, the Spread
Account Agreement, or the Pooling and Servicing Agreement have been or will have
been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of
the Bank in the Pooling and Servicing Agreement, with regard to itself as both
transferor and servicer and the Receivables (individually and in the aggregate),
will be true and correct.
(n) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by the Bank of or compliance by the
Bank with this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates or the consummation of the transactions
contemplated hereby or thereby except the filing of Uniform Commercial Code
financing statements with respect to the Receivables and to the approval of the
Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & ▇▇▇▇▇▇▇ L.L.P. who have audited certain financial
statements of the Bank are independent public accountants as required by the Act
and the Rules and Regulations.
(p) As of the close of business on June 30, 1997, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement have an aggregate balance determined, including the Receivables in the
Additional Accounts to be added to the Trust on or prior to the Closing Date, of
not less than the sum of (i) the sum of (x) the aggregate outstanding
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principal amount of all classes of all Series outstanding on June 30, 1997, plus
(y) $2,349,390,000 plus (ii) 7% of the sum of (x) plus (y).
(q) The Trust is not, and will not be as a result of the issuance
and sale of the Certificates, an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
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2. Purchase, Sale, Payment and Delivery of Certificates. On the
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basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Bank, on September 9, 1997 or on such other date as shall be
mutually agreed upon by the Bank and the Underwriters (the "Closing Date"), the
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number and type of Certificates set forth in Schedule A opposite the name of
each such Underwriter. The Class A Certificates being purchased by the
Underwriters hereunder are to be purchased at a purchase price equal to
99.462712% 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 99.391120% of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall be
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held at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, on the
Closing Date. Payment of the purchase price for the Certificates being sold and
purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
3. Offering by Underwriters. 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.
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 Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Bank will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
Representative, which consent will not unreasonably be withheld; the Bank will
also advise the Representative promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Bank will also advise the Representative
promptly of any amendment or supplement to the Registration Statement or the
Prospectus and of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and the Bank will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the Bank promptly will advise
the Representative thereof and will prepare and file, or cause to be prepared
and filed, with the Commission an amendment or supplement which will correct
such statement or omission, or an amendment or supplement which will effect such
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 Representative the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding, the Bank
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Certificateholders
or filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any order of the Commission thereunder and (ii)
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from time to time, any other information concerning the Bank filed with any
government or regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided with respect
to the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon
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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.
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 Prospectus and of each amendment or supplement thereto, (ii) the
preparation of this Agreement, the Spread Account Agreement, and the Pooling and
Servicing Agreement, (iii) the preparation, issuance and delivery of the
Certificates to the Underwriters, (iv) the fees and disbursements of the Bank's
counsel and accountants, (v) 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, (vi) the printing and delivery to the Underwriters of copies
of the Prospectus and of each amendment or supplement thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Certificates, (viii) any fees
charged by rating agencies for the rating of the Certificates, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the fees and expenses of the
Trustee and its counsel. The Underwriters have agreed to reimburse the Bank for
expenses not to exceed $383,735 incurred by the Bank in connection with the
issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Certificates
will be subject to the accuracy of the representations and warranties on the
part of the Bank herein, to the accuracy of the statements of officers of the
Bank made pursuant to the provisions hereof, to the performance by the Bank of
its obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the rules and
regulations under the Act and Section 1 hereof, and prior to the Closing Date,
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Bank, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
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(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 Coopers & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, substantially in the
form of the drafts to which the Representative has previously agreed and
otherwise in form and substance satisfactory to the Representative and its
counsel.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, or the Bank which, in the judgment of the Representative, materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to market the Certificates; (ii) any suspension or limitation on
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers National Market system, or any setting of
minimum prices for trading on such exchange or market system; (iii) any
suspension of trading of any securities of BANC ONE CORPORATION on any exchange
or in the over-the-counter market which materially impairs the investment
quality of the Certificates or makes it impractical or inadvisable to market the
Certificates; (iv) any banking moratorium declared by Federal, Delaware or New
York authorities; or (v) any outbreak or escalation of major hostilities or
armed conflict, any declaration of war by Congress, or any other substantial
national or international calamity or emergency if, in the judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity, or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to the
Representative certificates of a vice president or more senior officer of the
Bank as to the accuracy of the representations and warranties of the Bank herein
at and as of the Closing Date, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to such Closing Date, and as
to such other matters as the Representative may reasonably request.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of First USA Bank,
shall have furnished to the Representative her written opinion, addressed to the
Representative and dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, substantially to the effect that:
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(i) The Bank has been duly incorporated and is
validly existing as a bank in good standing under the laws of the
State of Delaware with full power and authority (corporate and other)
to own its properties and conduct its business, as presently owned and
conducted by it, and to enter into and perform its obligations under
this Agreement, the Spread Account Agreement and the Pooling and
Servicing Agreement (collectively referred to in this subsection (e)
as the "Agreements"), and the Certificates and had at all times, and
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now has, the power, authority and legal right to acquire, own and
transfer the Receivables;
(ii) The Bank is duly qualified to do business and is
in good standing, and under state laws, as they are currently
interpreted and enforced, has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would materially and adversely
affect the enforceability of any Receivable by the Bank or the Trustee
or would adversely affect the ability of the Bank to perform its
obligations under the Agreements or the Certificates;
(iii) The Certificates have been duly authorized,
executed and delivered by the Bank and, when duly authenticated by the
Trustee in accordance with the terms of the Pooling and Servicing
Agreement and de livered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be validly issued
and outstanding and entitled to the benefits provided by the Pooling
and Servicing Agreement;
(iv) Each of the Agreements has been duly authorized,
executed and delivered by the Bank and constitutes the legal, valid
and binding agreement of the Bank enforceable against the Bank in
accordance with its terms, subject, as to enforceability to (A) the
effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating
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to or affecting the rights and remedies of creditors generally, and
(B) the application of principles of equity (regardless of wheth er
considered and applied in a proceeding in equity or at law) and the
rights and powers of the FDIC;
(v) The Trust is not now, and immediately following
the sale of the Certificates pursuant to the Underwriting Agreement
will not be, required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of
any governmental agency or body is required for (A) the execution,
delivery and performance by the Bank of its obligations under the
Agreements or the Certificates, or (B) the issuance or sale of the
Certificates, except such as have been obtained under the Act and as
may be required under state securities or blue sky laws in connection
with the purchase and distribution of the Certificates by the Un
derwriters and the filing of Uniform Commercial Code financing
statements with respect to the Receivables and the approval of the
Office of the State Bank Commissioner of the State of Delaware;
(vii) To the best knowledge of such counsel, neither
the execution and delivery of the Agreements or the Certificates by
the Bank nor the performance by the Bank of the transactions therein
contemplated nor the fulfillment of the terms thereof does or will
result in any violation of any statute or regulation or any order or
decree of any court or governmental authority binding upon the Bank or
its property, or conflict with, or result in a breach or violation of
any term or provision of, or result in a default under any of the
terms and provisions of, the Bank's charter or by-laws or any material
indenture, loan agreement or other material agreement to which the
Bank is a party or by which the Bank is bound;
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(viii) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending
to which the Bank is a party or to which the Bank is subject which,
individually or in the aggregate (A) would have a material adverse
effect on the ability of the Bank to perform its obligations under the
Agreements or the Certificates, (B) assert the invalidity of the
Agreements or the Certificates, (C) seek to prevent the issuance, sale
or delivery of the Certificates or any of the transactions
contemplated by the Agreements or (D) seek to affect adversely the
federal income tax or ERISA attributes of the Certificates described
in the Prospectus;
(ix) The Registration Statement and the Prospectus
(except for the financial statements, financial schedules and other
financial and operating data included therein, as to which such
counsel expresses no view) comply as to form with the Act and the
Rules and Regulations;
(x) The Registration Statement has become effective
under the Act, and the Prospectus Supplement will be filed with the
Commission pursuant to Rule 424(b) thereunder; and
(xi) Such counsel has not independently verified and
is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in the
Registration Statement and Prospectus. Based upon discussion with the
Bank, its accountants and others, however, no facts have come to its
attention that cause it to believe that the Prospectus (except for the
financial statements, financial schedules and other financial and
statistical data included therein, as to which such counsel expresses
no view), contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
14
(f) The Representative shall have received a letter from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank, to the effect
that the Representative may rely on those provisions of their opinions to
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings
-------
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's")
-----------------
with respect to certain matters relating to the transfer of the Receivables to
the Trust, with respect to the perfection of the Trust's interest in the
Receivables and with respect to other related matters.
(g) The Representative shall have received an opinion of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Bank, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and its counsel, to the effect that the Certificates will be
treated as indebtedness for Federal income tax purposes and for Delaware income
tax purposes.
(h) The Representative shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement and
the Spread Account Agreement (collectively referred to in this
subsection (h) as the "Agreements") constitutes the valid and binding
-----------
obligation of the Bank, enforceable against the Bank in accordance
with its terms, except (x) to the extent that the enforceability
thereof may be limited by (a) bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and the rights of
creditors of Delaware chartered banks as the same may be applied in
the event of the bankruptcy, insolvency, receivership, reorganization,
moratorium or other similar event in respect of the Bank, (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) the
qualification that certain of the remedial provisions of the
Agreements may be unenforceable in whole or in part, but
15
the inclusion of such provisions does not affect the validity of the
Agreements taken as a whole, and the Agreements, together with
applicable law, contain adequate provisions for the practical
realization of the benefits of the security created thereby and (y)
such counsel expresses no opinion as to the enforceability of any
rights to contribution or indemnification which are violative of
public policy underlying any law, rule or regulation;
(ii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement;
(iii) This Agreement has been duly authorized,
executed and delivered by the Bank;
(iv) Neither the execution, delivery or performance
by the Bank of the Agreements or this Agreement, nor the compliance by
the Bank with the terms and provisions thereof or hereof, will
contravene any provision of any applicable law;
(v) Based on such counsel's review of applicable
laws, no governmental approval, which has not been obtained or taken
and is not in full force and effect, is required to authorize or is
required in connection with the execution, delivery or performance of
the Agreements by the Bank;
(vi) The Certificates, the Agreements and this
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus;
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
16
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
17
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
---------
Representative their written opinion, addressed to the Representative and dated
the Closing Date, in form and substance satisfactory to the Representative and
its counsel, substantially to the effect that:
(i) BONY is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and has the corporate power and authority to execute, deliver
and perform its obligations under the Agency Agreement;
(ii) the Certificates have been duly authenticated by
BONY pursuant to the Agency Agreement and in accordance with the
Pooling and Servicing Agreement;
(iii) the Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement and the Spread Account Agreement;
(iv) the Supplement and the Spread Account Agreement
have been duly authorized, executed and delivered by the Trustee, and
the Pooling and Servicing Agreement and the Spread Account Agreement
constitute the legal, valid and binding agreements of the Trustee
enforceable against the Trustee in 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
18
reorganization of, or other similar occurrence with respect to, the
Trustee), (y) that the enforceability of the Pooling and Servicing
Agreement and the Spread Account Agreement may be subject to the
application of general principles of equity (regardless of whether
considered or applied in a proceeding in equity or at law), and (z)
that certain remedial provisions of the Pooling and Servicing
Agreement may be unenforceable in whole or in part, but the inclusion
of such provisions does not affect the validity of the Pooling and
Servicing Agreement taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contains adequate provisions
for the practical realization of the benefits of the security provided
thereby. Such counsel expresses no opinion as to the enforceability of
any rights to contribution or indemnification that are violative of
public policy underlying any law, rule or regulation;
(v) the execution and delivery by the Trustee of the
Supplement and the Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement do not conflict with or result in a
violation of (x) any law or regulation of the United States of America
or the State of Delaware governing the banking or trust activities of
the Trustee or (y) the amended and restated articles of association or
by-laws of the Trustee; and
(vi) the execution and delivery by the Trustee of the
Supplement and the Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement do not require any approval,
authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of Delaware
having jurisdiction over the banking or trust activities of the
Trustee, except such as have been obtained, taken or made.
19
(j) The Representative shall have received evidence satisfactory to
the Representative and its counsel that, on or before the Closing Date, UCC-1
financing statements have been filed in the appropriate filing offices of the
State of Delaware and such other jurisdictions as counsel to the Bank deems
appropriate to reflect the interest of the Trustee in the Receivables.
(k) The Class A Certificates shall be rated "AAA" by Standard &
Poor's and "Aaa" by Moody's and the Class B Certificates shall be rated at least
"A" by Standard & Poor's and rated at least "A2" by Moody's on the Closing Date,
and letters to such effect dated the Closing Date shall have been received from
each Rating Agency.
(l) The Representative shall have received evidence satisfactory to
the Representative that, on or before the Closing Date, the Bank shall have
received the approval of the Office of the State Bank Commissioner of the State
of Delaware to the transaction.
(m) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident thereto shall be satisfactory in
form and substance to the Representative and its counsel, and the Representative
and its counsel shall have received such information, certificates and documents
as any of them may reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) The Bank agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of Sec-
tion 15 of the Act and under Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities to which they may become subject insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
in any revision or amendment thereof or supplement thereto or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the
20
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Bank will not
-------- -------
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Bank by any Underwriter
specifically for use therein or any revision or amendment thereof or supplement
thereto. The foregoing indemnification with respect to any untrue statement or
omission in any preliminary prospectus or prospectus supplement shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Bank shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Certificates to such person and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability provided that the Bank shall have identified to such
Underwriter in writing such defect prior to the delivery of such written
confirmation by such Underwriter to such person.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Bank, its directors, each of the Bank's officers who
signed the Registration Statement and each person, if any, who controls the Bank
within the meaning of Section 15 of the Act and under Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities to which they may
become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or in any revision or amendment thereof or supplement
thereto or any related preliminary prospectus or prospectus supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary
21
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 rea-
sonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
22
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnifying party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Bank on the one hand and the respective Underwriter on the other from the
offering of the Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Bank on the one hand and of the respective
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Bank
on the one hand and the respective Underwriter on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Bank bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Bank or by any
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), each Underwriter shall not be required to
contribute any amount in excess of the underwriting discount or commission
applicable to the Certificates purchased by it hereunder. The Bank and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of any of the
23
equitable considerations referred to above in this subsection (d). No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
8. Survival. The Bank and the Underwriters agree that the
--------
respective representations, warranties and agreements made by them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed
to be relied upon, in the case of the Bank, by each Underwriter and, in the case
of the Underwriters, by the Bank, notwithstanding any investigation heretofore
or hereafter made by or on behalf of the Bank or the Underwriters, and that the
respective representations, warranties and agreements (including without
limitation the indemnity and contribution agreement) made by the Bank and the
Underwriters herein or in any such certificate or other instrument shall survive
the delivery of and payment for the Certificates.
9. Termination. This Agreement may be terminated in the sole
-----------
discretion of the Underwriters by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 9 shall be without liability of any party to
any other party except as provided in Sections 5 and 7 hereof.
10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail on the Closing Date to purchase the Certificates
which it or they are obligated to purchase under this Agreement (the "Defaulted
---------
Securities"), the lead Underwriter shall have the right, within 24 hours
----------
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed 10% of
the aggregate principal
24
amount of the applicable class of Certificates, each of the non-defaulting
Underwriters of such class of Certificates shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder with respect to such class of
Certificates bear to the underwriting obligations of all non-defaulting
Underwriters of such class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the applicable class of Certificates, this
Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Bank shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
11. Representation of the Underwriters. Each of the Underwriters
----------------------------------
represents and warrants to, and agrees with, the Bank that (w) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (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 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
25
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, addressed to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ABS Trading/Syndicate, or to such other
address as the Representative may designate in writing to the Bank or (b) the
Bank, addressed to the Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and General Counsel,
telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to First USA
Financial, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Vice President-Corporate Finance, telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
13. Computational Materials. Each Underwriter, severally, represents
-----------------------
and warrants to the Bank that (a) 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
Certificates, (b) 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 Certificates and (c) it has not and will not use any
information that constitutes "Series Term Sheets," as defined in the
Commission's No-Action Letter, dated April 5, 1996, addressed to Greenwood Trust
Company, with respect to the offering of the Certificates, in each case unless
it has obtained the prior written consent of the Bank to such usage.
26
14. Secondary Trusts. Each Underwriter, severally, represents that
----------------
it will not, at any time that such Underwriter is acting as an "underwriter" (as
defined in Section 2(11) of the Act) with respect to the Certificates, transfer,
deposit or otherwise convey any Certificates into a trust or other type of
special purpose vehicle that issues securities or other instruments backed in
whole or in part by, or that represents interests in, such Certificates without
the prior written consent of the Bank.
15. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and assigns.
Nothing expressed herein is intended or shall be construed to give any person
other than the persons referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
16. Severability of Provisions. Any covenant, provision, agreement
--------------------------
or term of this Agreement that is prohibited or is held to be void or unenforce-
able in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. 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.
18. 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.
19. Headings. The headings in this Agreement are for the purposes of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
20. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which shall together
constitute one instrument.
27
21. 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.
28
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
for itself and as Representative
of the several Underwriters named
in Schedule A hereto
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, III
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇, III
Title: Vice President
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
▇.▇. ▇▇▇▇▇▇ Securities Inc......... $ 260,000,000
Banc One Capital Corporation....... $ 260,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc............ $ 260,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated....... $ 260,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.. $ 260,000,000
--------------
Total............................ $1,300,000,000
==============
Aggregate Principal
Amount of the Class B
Underwriter Certificates
----------- ------------
▇.▇. ▇▇▇▇▇▇ Securities Inc......... $ 23,494,000
Banc One Capital Corporation....... $ 23,494,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc............ $ 23,494,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated....... $ 23,494,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.. $ 23,494,000
--------------
Total............................ $ 117,470,000
==============