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First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1998-3
Class B Floating Rate Asset Backed Certificates,
Series 1998-3
UNDERWRITING AGREEMENT
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June 18, 1998
Credit Suisse First Boston Corporation,
as Representative of the
Underwriters set forth herein
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the
"Bank"), has duly authorized the issuance and sale to Credit Suisse First Boston
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Corporation (the "Representative"), Banc One Capital Markets, Inc., Bear,
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▇▇▇▇▇▇▇ & Co., Inc., First Chicago Capital Markets, Inc. and Salomon Brothers
Inc, as underwriters (collectively with the Representative, the "Underwriters"
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and each individually, an "Underwriter") of First USA Credit Card Master Trust
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$800,000,000 aggregate principal amount of Class A Floating Rate Asset Backed
Certificates, Series 1998-3 (the "Class A Certificates") and of First USA Credit
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Card Master Trust $72,289,000 aggregate principal amount of Class B Floating
Rate Asset Backed Certificates, Series 1998-3 (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, as amended as of the date hereof (the "Master Pooling and
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Servicing Agreement"), as supplemented by the Series 1998-3 Supplement, dated as
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of the Closing Date (the "Supplement" and, together with the Master Pooling and
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Servicing Agreement, the "Pooling and Servicing Agreement"), each by and between
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the Bank, as transferor and servicer, and The Bank of New York (Delaware), a
Delaware banking corporation, as trustee (in such capacity, the "Trustee").
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Each Certificate will represent an undivided interest in
certain assets of First USA Credit Card Master Trust (the "Trust"). The property
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of the Trust will include, among other things, receivables (the "Receivables")
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arising under certain MasterCard(R) and VISA(R)1 revolving credit card accounts
(the "Accounts").
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Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the
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Bank. The Bank represents and warrants to, and agrees with, the
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Underwriters as follows:
(a) The Bank has filed with the Securities and
Exchange Commission (the "Commission"), on Form S-3, a registration statement
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(Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of
1933, as amended (such act, the "Act"). The Bank may have filed one or more
amendments thereto each of which amendments has previously been furnished to
each of the Underwriters. The Bank will also file with the Commission a
prospectus supplement in accordance with Rule 424(b) under the Act. As filed,
the registration statement, including any amendments thereto, the form of
prospectus supplement, and any prospectuses or prospectus supplements filed
pursuant to Rule 424(b) under the Act relating to the Certificates shall, except
to the extent that the Underwriters shall agree in writing to a modification, be
in all substantive respects in the form furnished to the Representative prior
to the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest preliminary prospectus supplement which has
previously been furnished to the Under writers) 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
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date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
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registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein (including
any
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(1) VISA(R) and MasterCard(R) are registered trademarks of Visa
USA Incorporated and MasterCard International
Incorporated, respectively.
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Computational Materials, ABS Term Sheets, Structural Term Sheets and Collateral
Term Sheets (as defined in Section 3(b) hereof) filed on Form 8-K), is
hereinafter referred to as the "Registration Statement," and any prospectus
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supplement (the "Prospectus Supplement") relating to the Certificates, as filed
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with the Commission pursuant to and in accordance with Rule 424(b) ("Rule
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424(b)") under the Act is, together with the prospectus filed as part of the
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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
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Prospectus"), hereinafter referred to as the "Prospectus". "Execution Time"
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shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus was
first filed and on the Closing Date, the Prospectus did or will, comply in all
material respects with the applicable requirements of the Act and the rules and
regulations of the Commission under the Act (the "Rules and Regulations"); on
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the Effective Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus did not or will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Bank makes no representation
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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
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holders of the Certificates, otherwise than as set forth or contemplated in the
Prospectus.
(d) The Bank is duly organized, validly existing
and in good standing as a banking corporation under the laws of the State of
Delaware and is qualified to transact business in and is in good standing under
the laws of each state in which its activities require such qualification, and
has full power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement, the Pooling and Servicing Agreement, the Certificates and the
Transfer and Administration Agreement, dated as of the Closing Date (the
"Transfer and Administration Agreement"), between the Bank and Bankers Trust
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(Delaware), a Delaware banking corporation, not in its individual capacity but
solely as Owner Trustee on behalf of the First USA Secured Note Trust 1998-3 (in
such capacity, the "Owner Trustee").
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(e) This Agreement has been duly authorized and
validly executed and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been
duly authorized and, when executed and delivered by the Bank and assuming the
due authorization, execution and delivery thereof by the Trustee, will
constitute a valid and binding obligation of the Bank enforceable against the
Bank in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is pursuant to a proceeding in equity or at
law). As of the Closing Date, the Pooling and Servicing Agreement will have been
duly and validly executed by the Bank and will conform in all material respects
to the description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly
authorized by all required action of the Bank, and, when duly and validly
executed by the Bank, authenticated by the Trustee and delivered in accordance
with the Pooling and Servicing Agreement, and delivered to and paid for by the
Underwriters as provided herein, will be validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement. As of the
Closing Date, the Certificates will have been duly and validly executed by the
Bank, and will conform in all material respects to the descriptions thereof
contained in the Prospectus.
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(h) The Transfer and Administration Agreement has
been duly authorized, and, when executed and delivered by the Bank and assuming
the due authorization, execution and delivery thereof by the other parties
thereto, will constitute a valid and binding obligation of the Bank enforceable
against the Bank in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is pursuant to a proceeding in equity or at
law). As of the Closing Date, the Transfer and Administration Agreement will
have been validly executed by the Bank.
(i) The Receivables delivered on the Closing Date
to the Trustee pursuant to the Pooling and Servicing Agreement will conform in
all material respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to
the Trustee, nor the issuance, sale and delivery of the Certificates, nor the
execution or delivery of this Agreement, the Transfer and Administration
Agreement or the Pooling and Servicing Agreement, nor the consummation of any of
the transactions herein or therein contemplated, nor the fulfillment of the
terms of the Certificates, the Pooling and Servicing Agreement, the Transfer and
Administration Agreement or this Agreement, will result in the breach of any
term or provision of the 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 obliga-
tions under this Agreement, the Pooling and Servicing Agreement, the Transfer
and Administration Agreement or the Certificates.
(k) There are no charges, investigations, actions,
suits, claims or proceedings before or by any court, regulatory body,
administrative agency, governmental body or
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arbitrator now pending or, to the best knowledge of the Bank, threatened that,
separately or in the aggregate (i) could have a material adverse effect on (x)
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory status or business prospects of the
Bank or (y) the ability of the Bank to perform its obligations under this
Agreement, the Transfer and Administration Agreement, the Pooling and Servicing
Agreement, or the Certificates, (ii) assert the invalidity of this Agreement,
the Transfer and Administration Agreement, the Pooling and Servicing Agreement,
or the Certificates, (iii) seek to prevent the issuance, sale or delivery of
the Certificates or any of the transactions contemplated by this Agreement, the
Transfer and Administration Agreement or the Pooling and Servicing Agreement or
(iv) seek to affect adversely the federal income tax or ERISA attributes of the
Certificates described in the Prospectus.
(l) No federal, state or local tax, including
intangibles tax or documentary stamp tax, the non-payment of which would result
in the imposition of a Lien on the Receivables or of transferee liability on the
Trustee, is imposed with respect to the conveyance of the Receivables from the
Bank to the Trust, or in connection with the issuance of the Certificates by the
Trust, or the holding of the Receivables by the Trust, or in connection with any
of the other transactions contemplated by this Agreement, the Transfer and
Administration Agreement or the Pooling and Servicing Agreement. Any taxes, fees
and other governmental charges in connection with the execution, delivery and
issuance of the Certificates or the execution and delivery of this Agreement,
the Transfer and Administration Agreement or the Pooling and Servicing Agreement
have been or will have been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations
and warranties of the Bank in the Pooling and Servicing Agreement, with regard
to itself as both transferor and servicer and the Receivables (individually and
in the aggregate), will be true and correct.
(n) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery and performance by the Bank of or
compliance by the Bank with this Agreement, the Transfer and Administration
Agreement, the Pooling and Servicing Agreement, or the Certificates or the
consummation of the transactions contemplated hereby or thereby except the
filing of Uniform Commercial Code financing statements with respect to the
Receivables and to the approval of the Office of the State Bank Commissioner of
the State of Delaware.
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(o) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. who have audited
certain financial statements of the Banc One Corporation are independent public
accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal Receiv-
▇▇▇▇▇ transferred to the Trust pursuant to the Pooling and Servicing Agreement
will have an aggregate balance of not less than the sum of (i) the aggregate
outstanding principal amount of all classes of all Series outstanding at the
close of business on the Closing Date (including Series 1998-3), plus (ii) 7% of
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the amount stated in clause (i).
(q) The Trust is not, and will not be as a result
of the issuance and sale of the Certificates, an "investment company" or a
company "controlled by" an investment company within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
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2. Purchase, Sale, Payment and Delivery of Certificates. On
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the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Bank agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Bank, on June 25, 1998 or on such other date as shall be
mutually agreed upon by the Bank and the Underwriters (the "Closing Date"), the
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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 99.775%
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 99.725%
of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing")
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shall be held at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, on
the Closing Date. Payment of the purchase price for the Certificates being sold
and purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
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3. Offering by Underwriters. (a) It is understood that after
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the Effective Date the Underwriters propose to offer the Certificates for sale
to the public as set forth in the Prospectus.
(b) Each Underwriter may provide to prospective
investors the 1998-3 Term Sheet, dated June 17, 1998, relating to the
Certificates (the "1998-3 Term Sheet") prepared by the Bank and attached
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hereto as Exhibit A, subject to the following conditions:
(i) Such Underwriter shall have complied with the
requirements of (A) the no-action letter, dated May 20, 1994, issued by
the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in
the response to the request of the Public Securities Association, dated
May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA Letter"), (B) the
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requirements of the no-action letter, dated February 17, 1995, issued
by the Commission to the Public Securities Association (the "PSA
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Letter") and (C) the requirements of the no-action letter, dated April
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5, 1996, issued by the Commission to Greenwood Trust Company (the
"Greenwood Letter" and, together with the ▇▇▇▇▇▇/PSA Letter and the PSA
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Letter, the "No-Action Letters").
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(ii) Each Underwriter, severally, represents and
warrants to the Bank that (a) it has not and will not use any
information that constitutes "Computational Materials" with respect to
the offering of the Certificates unless it has obtained the prior
written consent of the Bank to such usage and (b) other than the 1998-3
Term Sheet, it has not and will not use any information that
constitutes "Series Term Sheets," "ABS Term Sheets," "Structural Term
Sheets" or "Collateral Term Sheets" with respect to the offering of the
Certificates. For purposes hereof, "Series Term Sheet" shall have the
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meaning given such term in the Greenwood Letter and "Computational
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Materials" shall have the meaning given such term in the No-Action
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Letters. For purposes hereof, "ABS Term Sheets," "Structural Term
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Sheets" and "Collateral Term Sheets" shall have the meanings given such
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terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and
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agrees with the several Underwriters as follows:
(a) Immediately following the execution of this
Agreement, the Bank will prepare a Prospectus Supplement setting
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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 Registration Statement,
the Bank will cause the Trust to make generally available to Certificateholders
an earnings statement
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(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
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of the Commission thereunder and (ii) from time to time, any other information
concerning the Bank filed with any government or regulatory authority which is
otherwise publicly available, as the Representative reasonably requests.
(i) To the extent, if any, that the rating
provided with respect to the Certificates by the rating agency or agencies that
initially rate the Certificates is conditional upon the furnishing of documents
or the taking of any other actions by
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the Bank, the Bank shall use its best efforts to furnish such documents and take
any such other actions.
(j) The Bank will file with the Commission a
report on Form 8-K with respect to the 1998-3 Term Sheet and a report on Form
8-K setting forth all Computational Materials described in Section 3 hereof
provided to the Bank by any of the Underwriters and identified by such
Underwriter as such within the time period allotted for such filing pursuant to
the No-Action Letters.
5. Payment of Expenses. The Bank will pay all expenses
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incident to the performance of its obligations under this Agreement, including
(i) the printing of the 1998-3 Term Sheet and any Computational Materials
described in Section 3 hereof, (ii) the printing of the Prospectus and of each
amendment or supplement thereto, (iii) the preparation of this Agreement, the
Transfer and Administration Agreement and the Pooling and Servicing Agreement,
(iv) the preparation, issuance and delivery of the Certificates to the
Underwriters, (v) the fees and disbursements of the Bank's counsel and
accountants, (vi) the qualification of the Certificates under securities laws in
accordance with the provisions of Section 4(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters and in connection
with the preparation of any blue sky and legal investment survey, (vii) the
printing and delivery to the Underwriters of copies of the 1998-3 Term Sheet and
any Computational Materials described in Section 3 hereof, (viii) the printing
and delivery to the Underwriters of copies of the Prospectus and of each
amendment or supplement thereto, (ix) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment survey prepared in
connection with the Certificates, (x) any fees charged by rating agencies for
the rating of the Certificates, (xi) the fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc. and (xii) the fees and expenses of the Trustee and its counsel. The
Underwriters have agreed to reimburse the Bank for expenses not to exceed
$218,072 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:
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(a) The Prospectus and any supplements thereto
shall have been filed (if required) with the Commission in accordance with the
Rules and Regulations and Section 1 hereof, and prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Bank, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(b) On or prior to the date of the Prospectus and
on or prior to the Closing Date, the Underwriters shall have received a letter
or letters, dated as of the date of the Prospectus and as of the Closing Date,
respectively, of 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
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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:
(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 (cor-
porate and other) to own its properties and conduct its
business, as presently owned and conducted by it, and to enter
into and perform its obligations under this Agreement, the
Transfer and Administration Agreement and the Pooling and
Servicing Agreement (collectively referred to in this
subsection (e) as the "Agreements"), and the Certificates and
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had at all times, and 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 delivered to and paid
for by the Underwriters in accordance with the terms of this
Agreement, will be validly issued and outstanding and entitled
to the benefits provided by the Pooling and Servicing
Agreement;
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(iv) Each of the Pooling and Servicing
Agreement and the Transfer and Administration Agreement has
been duly authorized, executed and delivered by the Bank and
constitutes the legal, valid and binding agreement of the Bank
enforceable against the Bank in accordance with its terms,
subject, as to enforceability, to (A) the effect of
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating to
or affecting the rights and remedies of creditors generally,
and (B) the application of principles of equity (regardless of
whether considered and applied in a proceeding in equity or at
law) and the rights and powers of the FDIC;
(v) This Agreement has been duly authorized,
executed and delivered by the Bank;
(vi) 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;
(vii) 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;
(viii) 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
14
15
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;
(ix) 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;
(x) 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;
(xi) 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
(xii) 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 Registra-
15
16
tion 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.
(f) The Representative shall have received a letter
from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Bank, to
the effect that the Representative may rely on its opinion to ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") Standard & Poor's Ratings Services, a division of The
-------
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.("Standard & Poor's"), and Fitch IBCA, Inc. with
-----------------
respect to certain bank regulatory matters.
(g) The Representative shall have received an opinion
of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Bank,
addressed to the Representative, dated the Closing Date and satisfactory in form
and substance to the Representative and its counsel, to the effect that the
Certificates will be treated as indebtedness for Federal income tax purposes and
for Delaware income tax purposes.
(h) The Representative shall have received from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing
Agreement and the Transfer and Administration Agreement
(collectively referred to in this subsection (h) as the
"Agreements") constitutes the valid and binding obligation of
----------
the Bank, enforceable against the Bank in accordance with its
terms, except (x) to the extent that the enforceability
thereof may be limited by (a) bankruptcy, insolvency,
receivership, reorganization, moratorium or other similar
16
17
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 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
17
18
connection with the execution, delivery or performance of the
Agreements by the Bank;
(vi) The Certificates, the Pooling and
Servicing Agreement and this Agreement conform in all material
respects to the descriptions thereof contained in the Pro-
spectus;
(vii) The Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be
registered under the 1940 Act;
(viii) The statements in the Prospectus
under the heading "Certain Legal Aspects of the Receivables",
to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects; and
(ix) Each of the Registration Statement, as
of its effective date, and the Prospectus, as of its date,
appeared on its face to be appropriately responsive in all
material respects to the requirements of the Act and the
General Rules and Regulations under the Act, except that in
each case such counsel expresses no opinion as to the
financial data included therein or excluded therefrom or the
exhibits to the Registration Statement, and such counsel does
not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement and the Prospectus.
Such opinion shall also state that such counsel has
participated in conferences with officers and representatives of the Bank,
counsel for the Bank, representatives of the independent accountants of the Bank
and the Underwriters at which the contents of the Prospectus and related matters
were discussed and, although such counsel need not pass upon, and need not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and shall have made no independent check
or
18
19
verification thereof, except for those made under the caption "Certain Legal
Aspects of the Receivables" to the extent set forth in paragraph (viii) above,
on the basis of the foregoing, no facts shall have come to such counsel's
attention that shall have led such counsel to believe that the Prospectus, as of
its date, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that such
counsel need not express an opinion or belief with respect to the financial
statements, schedules and other financial information included in such
Prospectus or excluded therefrom.
(i) 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 its written opinion,
addressed to the Representative and dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, substantially to
the effect that:
(i) BONY is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of New York and has the corporate power and
authority to execute, deliver and perform its obligations
under the Agency Agreement;
(ii) The Certificates have been duly
authenticated by BONY pursuant to the Agency Agreement and in
accordance with the Pooling and Servicing Agreement;
(iii) The Trustee is a banking corporation
duly organized, validly existing and in good standing under
the laws of the State of Delaware and has the corporate power
and authority to execute, deliver and perform its obligations
under the Pooling and Servicing Agreement;
(iv) Each of the Supplement and the Class A
Interest Rate Swap has been duly authorized, executed and
delivered by the
19
20
Trustee, and each of the Pooling and Servicing Agreement and
the Class A Interest Rate Swap constitutes a legal, valid and
binding agreement of the Trustee, enforceable against the
Trustee in accordance with its terms, except (x) as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights of
creditors generally (as such laws would apply in the event of
the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect
to, the Trustee), (y) that the enforceability of the Pooling
and Servicing Agreement against the Trustee may be subject to
the application of general principles of equity (regardless of
whether considered or applied in a proceeding in equity or at
law), and (z) that certain remedial provisions of the Pooling
and Servicing Agreement may be unenforceable, in whole or in
part against the Trustee, but the inclusion of such provisions
does not affect the validity of the Pooling and Servicing
Agreement, taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contains adequate
provisions for the practical realization of the benefits of
the security provided thereby. Such counsel expresses no
opinion as to the enforceability of any rights to contribution
or indemnification that are violative of public policy
underlying any law, rule or regulation;
(v) The execution and delivery by the
Trustee of the Supplement and the Class A Interest Rate Swap,
and the performance by the Trustee of its obligations under
the Pooling and Servicing Agreement and the Class A Interest
Rate Swap, 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 Class
20
21
A Interest Rate Swap and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement and the
Class A Interest Rate Swap, do not require any approval,
authorization or other action by, or filing with, any
governmental authority of the United States of America or the
State of Delaware having jurisdiction over the banking or
trust activities of the Trustee, except such as have been
obtained, taken or made.
(j) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
for the Owner Trust in connection with the Transfer and Administration Agreement
and the Indenture, shall have furnished to the Representative its written
opinion, addressed to the Representative and dated the Closing Date, in form
and substance satisfactory to the Representative and its counsel, substantially
to the effect that:
(i) The Owner Trust is a business trust duly
formed, validly existing and in good standing under the laws
of the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the
Transfer and Administration Agreement and the Indenture;
(ii) The Transfer and Administration
Agreement, the Indenture and the secured notes issued by the
Owner Trust pursuant to the Indenture (the "Notes") have been
-----
duly authorized, executed and delivered by the Owner Trust,
and the Transfer and Administration Agreement, the Indenture
and the Notes constitute legal, valid and binding agreements
of the Owner Trust, enforceable against the Owner Trust in
accordance with their respective terms, except (x) as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights of
creditors generally (as such laws would apply in the event of
the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect
to, the Owner Trustee), (y) that the enforceability of the
Transfer and Administration Agreement, the Indenture and the
Notes against the Owner
21
22
Trust may be subject to the application of general principles
of equity (regardless of whether considered or applied in a
proceeding in equity or at law), and (z) that certain remedial
provisions of the Transfer and Administration Agreement and
the Indenture may be unenforceable, in whole or in part
against the Owner Trust, but the inclusion of such provisions
does not affect the validity of the Transfer and
Administration Agreement and the Indenture, taken as a whole,
and the Transfer and Administration Agreement, together with
applicable law, contains adequate provisions for the practical
realization of the benefits of the security provided thereby.
Such counsel expresses no opinion as to the enforceability of
any rights to contribution or indemnification that are
violative of public policy underlying any law, rule or
regulation;
(iii) The execution and delivery by the
Owner Trust of the Transfer and Administration Agreement, the
Indenture and the Notes and the performance by the Owner Trust
of its obligations under the Transfer and Administration
Agreement, the Indenture and the Notes do not conflict with or
result in a violation of (x) any law or regulation of the
State of Delaware applicable to the Owner Trust, or (y) the
Trust Agreement; and
(iv) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the
Indenture and the Notes and the performance by the Owner
Trustee of its obligations under the Transfer and
Administration Agreement, the Indenture and the Notes do not
require any approval, authorization or other action by, or
filing with, any governmental authority of the State of
Delaware having jurisdiction over the Owner Trust, except such
as have been obtained, taken or made.
(k) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel
for the Owner Trustee in connection with the Trust Agreement, shall have
furnished to the Representative its written opinion, addressed to the
Representative and
22
23
dated the Closing Date, in form and substance satisfactory to the Representative
and its counsel, substantially to the effect that:
(i) The Owner Trustee is a banking
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the
corporate power and authority to execute, deliver and perform
its obligations under the Trust Agreement;
(ii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee, and
the Trust Agreement constitutes a legal, valid and binding
agreement of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms, except (x) as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights of
creditors generally (as such laws would apply in the event of
the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect
to, the Owner Trustee), (y) that the enforceability of the
Trust Agreement against the Owner Trustee may be subject to
the application of general principles of equity (regardless of
whether considered or applied in a proceeding in equity or at
law), and (z) that certain remedial provisions of the Trust
Agreement may be unenforceable, in whole or in part against
the Owner Trustee, but the inclusion of such provisions does
not affect the validity of the Trust Agreement, taken as a
whole, and the Trust Agreement, together with applicable law,
contains adequate provisions for the practical realization of
the benefits of the security provided thereby. Such counsel
expresses no opinion as to the enforceability of any rights to
contribution or indemnification that are violative of public
policy underlying any law, rule or regulation;
(iii) The execution and delivery by the
Owner Trustee of the Trust Agreement, and the performance by
the Owner
23
24
Trustee of its obligations under the Trust Agreement, do not
conflict with or result in a violation of (x) any law or
regulation of the United States of America or the State of
Delaware governing the banking or trust activities of the
Owner Trustee, or (y) the organizational documents of the
Owner Trustee; and
(iv) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the
Owner Trustee of its obligations under the Trust Agreement do
not require any approval, authorization or other action by, or
filing with, any governmental authority of the United States
of America or the State of Delaware having jurisdiction over
the banking or trust activities of the Owner Trustee, except
such as have been obtained, taken or made.
(l) The Counsel for the Class A Swap
Counterparty in connection with the Class A Interest Rate Swap shall have
furnished to the Representative its written opinion, addressed to the
Representative and dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, substantially to the effect that:
(i) The Class A Swap Counterparty is duly
organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has the power and
authority to execute, deliver and perform its obligations
under the Class A Interest Rate Swap;
(ii) The Class A Interest Rate Swap has been
duly authorized, executed and delivered by the Class A
Interest Rate Swap Counterparty, and the Class A Interest Rate
Swap constitutes a legal, valid and binding agreement of the
Class A Interest Rate Swap Counterparty, enforceable against
the Class A Interest Rate Swap Counterparty in accordance with
its terms, except (x) as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally
24
25
(as such laws would apply in the event of the insolvency,
receivership, conservatorship or reorganization of, or other
similar occurrence with respect to, the Class A Interest Rate
Swap Counterparty), (y) that the enforceability of the Class A
Interest Rate Swap against the Class A Interest Rate Swap
Counterparty 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 Class A Interest Rate Swap
may be unenforceable, in whole or in part against the Class A
Interest Rate Swap Provider, but the inclusion of such
provisions does not affect the validity of the Class A
Interest Rate Swap, taken as a whole, and the Class A Interest
Rate Swap, together with applicable law, contains adequate
provisions for the practical realization of the benefits of
the security provided thereby. Such counsel expresses no
opinion as to the enforceability of any rights to contribution
or indemnification that are violative of public policy
underlying any law, rule or regulation;
(iii) The execution and delivery by the
Class A Interest Rate Swap Provider of the Class A Interest
Rate Swap, and the performance by the Class A Interest Rate
Swap Provider of its obligations under the Class A Interest
Rate Swap, 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 Class A Interest Rate Swap Provider, or (y)
the organizational documents of the Class A Interest Rate Swap
Provider; and
(iv) The execution and delivery by the Class
A Interest Rate Swap Provider of the Class A Interest Rate
Swap and the performance by the Class A Interest Rate Swap
Provider of its obligations under the Class A Interest Rate
Swap do not require any approval, authorization or other
action by, or filing with, any governmental authority having
25
26
jurisdiction over the activities of the Class A Interest Rate
Swap Provider, except such as have been obtained, taken or
made.
(m) The Representative shall have re-
ceived 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.
(n) The Class A Certificates shall be
rated "AAA" by Standard & Poor's and "Aaa" by ▇▇▇▇▇'▇ and the Class B
Certificates shall be rated at least "A" by Standard & Poor's and rated at least
"A2" by ▇▇▇▇▇'▇ on the Closing Date, and letters to such effect dated the
Closing Date shall have been received from each Rating Agency.
(o) The Representative shall have re-
ceived 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.
(p) All proceedings in connection with
the transactions contemplated by this Agreement and all documents incident
thereto shall be satisfactory in form and substance to the Representative and
its counsel, and the Representative and its counsel shall have received such
information, certificates and documents as any of them may reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) The Bank agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act and under Section 20 of
the Exchange Act against any and all losses, claims, damages or liabilities to
which they may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or in any revision or amendment
thereof
26
27
or supplement thereto or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Bank will not be liable in any such case
-------- -------
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Bank by any Underwriter specifically for use
therein or any revision or amendment thereof or supplement thereto. The
foregoing indemnification with respect to any untrue statement or omission in
any preliminary prospectus or prospectus supplement shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Certificates, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Bank shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if such is
required by law, at or prior to the written confirmation of the sale of such
Certificates to such person and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability provided that the Bank shall have identified to such
Underwriter in writing such defect prior to the delivery of such written
confirmation by such Underwriter to such person.
(b) Each Underwriter severally and not
jointly agrees to indemnify and hold harmless the Bank, its directors, each of
the Bank's officers who signed the Registration Statement and each person, if
any, who controls the Bank within the meaning of Section 15 of the Act and under
Section 20 of the Exchange Act against any and all losses, claims, damages or
liabilities to which they may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or in any revision or
amendment thereof or
27
28
supplement thereto or any related preliminary prospectus or prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Bank by such Underwriter specifically for
use therein or any revision or amendment thereof or supplement thereto, and
agrees to reimburse such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage or liability or action as such expenses are incurred.
(c) Promptly after receipt by an indem-
nified party under this Section 7 of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party other than under this Section 7. In
the event that any such action is brought against any indemnified party and it
notified the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified
28
29
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for
in this Section 7 is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnifying party as a result
of the losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Bank on the one hand and the respective Underwriter on
the other from the offering of the Certificates or (ii) if the allocation pro-
vided 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
29
30
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of any of the equitable
considerations referred to above in this subsection (d). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Survival. The Bank and the Underwriters agree that the
--------
respective representations, warranties and agreements made by them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed
to be relied upon, in the case of the Bank, by each Underwriter and, in the case
of the Underwriters, by the Bank, notwithstanding any investigation heretofore
or hereafter made by or on behalf of the Bank or the Underwriters, and that the
respective representations, warranties and agreements (including without
limitation the indemnity and contribution agreement) made by the Bank and the
Underwriters herein or in any such certificate or other instrument shall survive
the delivery of and payment for the Certificates.
9. Termination. This Agreement may be terminated in the sole
-----------
discretion of the Underwriters by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto. Termination of this
Agreement pursuant to this Section 9 shall be without liability of any party to
any other party except as provided in Sections 5 and 7 hereof.
10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail on the Closing Date to purchase the Certificates
which it or they are obligated to purchase under this Agreement (the "Defaulted
---------
Securities"), the lead Underwriter shall have the right, within 24 hours
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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
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not have completed such arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed
10% of the aggregate principal amount of the applicable class of
Certificates, each of the non-defaulting Underwriters of such class of
Certificates shall be obligated to purchase the full amount thereof in
the proportions that their respective underwriting obligations
hereunder with respect to such class of Certificates bear to the
underwriting obligations of all non-defaulting Underwriters of such
class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the applicable class of Certificates,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Bank shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
11. Representation of the Underwriters. Each of the
----------------------------------
Underwriters represents and warrants to, and agrees with, the Bank that (w) it
has only issued or passed on and shall only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Certificates to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
(as amended) or who is a person to whom the document may otherwise lawfully be
issued or passed on, (x) it has complied and shall comply with all applicable
provisions of the Financial Services Act 1986 and other applicable laws and
regulations with respect to anything done by it in relation to the Certificates
in, from or otherwise involving the United Kingdom and (y) if that Underwriter
is an authorized person under
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the Financial Services Act 1986, it has only promoted and shall only promote (as
that term is defined in Regulation 1.02 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991) to any person in the United Kingdom the
scheme described in the Prospectus if that person is of a kind described either
in Section 76(2) of the Financial Services Act 1986 or in Regulation 1.04 of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991.
12. Notices. All communications provided for or permitted
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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 Credit Suisse First Boston Corporation, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or to such
other address as the Representative may designate in writing to the Bank or (b)
the Bank, addressed to the Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and General
Counsel, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to
Banc One Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Transaction Manager, Structured Finance, telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
13. Secondary Trust or Special Purpose Vehicle. Each
------------------------------------------
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of the
Act) with respect to the Certificates, transfer, deposit or otherwise convey any
Certificates into a trust or other type of special purpose vehicle that issues
securities or other instruments backed in whole or in part by, or that
represents interests in, such Certificates without the prior written consent of
the Bank.
14. Successors. This Agreement shall inure to the benefit of
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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.
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15. Severability of Provisions. Any covenant, provision,
--------------------------
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
16. Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
17. Amendment. Neither this Agreement nor any term hereof may
---------
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
18. Headings. The headings in this Agreement are for the
--------
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
19. Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall constitute an original, but all of which shall
together constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will be a binding agreement among the undersigned in accordance
with its terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
for itself and as Representative
of the Underwriters named in
Schedule A hereto
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
35
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
----------- ------------
Credit Suisse First Boston
Corporation . . . . .................................. $160,000,000
Banc One Capital Markets, Inc............................. 160,000,000
Bear, ▇▇▇▇▇▇▇ & Co., Inc.................................. 160,000,000
First Chicago Capital
Markets, Inc........................................... 160,000,000
Salomon Brothers Inc...................................... 160,000,000
------------
Total................................... $800,000,000
============
Aggregate Principal
Amount of the Class B
Underwriter Certificates
----------- ------------
Credit Suisse First Boston
Corporation............................................ $14,457,800
Banc One Capital Markets, Inc............................. 14,457,800
Bear, ▇▇▇▇▇▇▇ & Co., Inc.................................. 14,457,800
First Chicago Capital
Markets, Inc........................................... 14,457,800
Salomon Brothers Inc...................................... 14,457,800
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Total................................... $72,289,000
===========