Exhibit 1.2
First Chicago Master Trust II
FCC NATIONAL BANK
(Seller and Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
November 3, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
As Underwriter or as a Representative
of the Underwriters named in the
within referenced Terms Agreement
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. FCC National Bank, a national banking association
------------
(the "Bank") proposes to sell one or more Series of Investor Certificates to be
issued by the First Chicago Master Trust II (the "Certificates"). The
Certificates are to be issued pursuant to a Pooling and Servicing Agreement
between the Bank, as Seller and Servicer, and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"), dated as of June 1, 1990 (as amended or
otherwise modified from time to time, the "Pooling and Servicing Agreement"), as
supplemented by a supplement between the Bank, as Seller and Servicer, and the
Trustee, (the "Supplement") to the Pooling and Servicing Agreement, relating to
the applicable Series of Certificates (references to the Pooling and Servicing
Agreement herein may, as the context requires, include all supplements,
including the Supplement, to the Pooling and Servicing Agreement). The
Certificates may be sold in a public offering by the Bank through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as sole underwriter, or through certain
underwriters which include ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, one or more of which may act as
representative of such underwriters (any underwriter through which Certificates
are sold shall be referred to herein as an "Underwriter" or, collectively, all
such Underwriters may be referred to as the "Underwriters"; any representatives
thereof may be referred to herein as a "Representative," which, if the context
herein does require, shall include ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its capacity as sole
Underwriter of any Series, or the "Representa-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 2
tives"). Certificates of any Series shall be sold pursuant to a Terms Agreement
by and between the Bank and the Representatives, a form of which is attached
hereto as Exhibit A (a "Terms Agreement"), which incorporates by reference this
Underwriting Agreement (the "Agreement," which may include the applicable Terms
Agreement if the context requires). Any Series of Certificates sold pursuant to
any Terms Agreement may include the benefits of a collateral interest, cash
collateral account, letter of credit, guaranteed rate agreement, maturity
guaranty facility, tax protection agreement, interest rate or currency swap or
other contract or agreement for the benefit of the Certificateholders of such
Series (an "Enhancement"). With respect to any such Enhancement, the Bank shall
enter into an agreement or contract (the "Enhancement Agreement") by and between
the Bank and the provider of the Enhancement (the "Enhancement Provider"). Each
Certificate will represent an undivided interest in the First Chicago Master
Trust II (the "Trust"). The assets of the Trust will include, among other
things, certain amounts due on a pool of MasterCard(R) and VISA(R) credit card
accounts (the "Receivables") and, with respect to any such Series sold pursuant
to this Agreement, the benefits of an Enhancement. To the extent not defined
herein, capitalized terms used herein have the meanings assigned in the Pooling
and Servicing Agreement.
Upon the execution of any Terms Agreement, the Bank agrees with the
Underwriters as follows:
2. Representations and Warranties of the Bank. The Bank represents
------------------------------------------
and warrants to, and agrees with, the Underwriters that:
(i) A registration statement on Form S-3 (having the
registration number stated in the applicable Terms Agreement), including a
prospectus and such amendments thereto as may have been required to the
date of execution of such Terms Agreement, relating to the Certificates and
the offering thereof from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission"), (which may have
included one or more preliminary prospectuses and prospectus supplements
(each, a "Prelimi-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 3
nary Prospectus") meeting the requirements of Rule 430 of the Act), and
such registration statement, as amended, has become effective; such
registration statement, as amended, and the prospectus relating to the sale
of the Certificates offered thereby by the Bank constituting a part
thereof, as from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424(b) of the rules
and regulations of the Commission (the "Rules and Regulations") under the
Act), are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided, however, that a supplement to the
-------- -------
Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Certificates to which it relates. The
conditions to the use of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect to
the Registration Statement.
(ii) as of the date of execution of the related Terms Agreement,
the Registration Statement and the Prospectus, except with respect to any
modification to which Representatives have agreed in writing, shall be in
all substantive respects in the form furnished to the Underwriters prior to
such date or, to the extent not completed on such date, shall contain only
such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus or, if applicable, Series
Term Sheet (as defined below) that has previously been furnished to you) as
the Bank has advised Representatives, prior to such time, will be included
or made therein.
(iii) on the effective date of the Registration Statement, the
Registration Statement and the Prospectus complied in all material respects
with the applicable requirements of the Act and the Rules and Regulations,
and did not include any untrue statement of a material fact or, in the case
of the Registration Statement, omit to state any material fact required to
be stated therein or necessary
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 4
to make the statements therein not misleading and, in the case of the
Prospectus, omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and on the date of each Terms Agreement and on each
Closing Date (as defined below), the Registration Statement, the Prospectus
and any Series Term Sheet will comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and none
of such documents included or will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing does not apply to
-------- -------
information contained in or omitted from any of such documents based upon
written information furnished to the Bank by any Underwriter relating to
such Underwriter specifically for use in connection with the preparation of
the Registration Statement, the Prospectus or such Series Term Sheet.
(iv) As of the Closing Date of the applicable Series of
Certificates, the representations and warranties of the Bank in the Pooling
and Servicing Agreement will be true and correct.
(v) The Bank is an association duly organized, validly existing
and in good standing as a licensed national banking association under the
laws of the United States, and has all requisite power and authority to own
its properties and conduct in all material respects its business as
presently conducted and to execute, deliver and perform this Agreement and
the applicable Terms Agreement, to authorize the issuance of the
Certificates and to consummate the transactions contemplated hereby.
(vi) The execution, delivery and performance by the Bank of this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, any Enhancement Agreement, the issuance of the Certificates and
the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary action or proceedings.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 5
(vii) This Agreement and the applicable Terms Agreement have
been duly executed and delivered by the Bank.
(viii) The information, other than projections based upon
historical data, provided to you by the Bank in connection with this
Agreement and the sale of the Certificates and described on Schedule II
attached to the applicable Terms Agreement when taken collectively, did
not, as of the date such information was provided, or as of the effective
date of the Registration Statement, or as of the date of the Prospectus, as
the case may be, and does not as of the date hereof, contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading.
(ix) The Bank has authorized the conveyance of the Receivables
to the Trust, and the Bank has authorized the Trust to issue the
Certificates.
(x) The Bank has delivered to you complete and correct copies of
(i) the December 31, 1996 and 1997 audited consolidated balance sheets of
First Chicago NBD Corporation (the predecessor of the parent of the Bank);
(ii) publicly available portions of the Consolidated Report of Condition
and Income of the Bank for the years ended December 31, 1996, and 1997 as
submitted to the Comptroller of the Currency; (iii) publicly available
portions of the Consolidated Report of Condition and Income of the Bank for
the period ended June 30, 1998 as submitted to the Comptroller of the
Currency and (iv) such other similar items, if any, identified in the Terms
Agreement. Except as set forth in or contemplated in the Registration
Statement and the Prospectus, there has been no material adverse change in
the condition (financial or otherwise) of the Bank since December 31, 1997.
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this Agreement,
the applicable Terms Agreement, the Pooling and Servic-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 6
ing Agreement, any Enhancement Agreement and the Certificates shall have
been paid or will be paid by the Bank at or prior to the Closing Date.
(xii) The Certificates have been duly and validly authorized,
and, when validly authenticated, issued and delivered in accordance with
the Pooling and Servicing Agreement and sold to the Underwriters as
provided herein and in the applicable Terms Agreement, will conform in all
material respects to the description thereof contained in the Prospectus
and will be validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
3. Purchase, Sale, Payment and Delivery of Certificates. Delivery of
----------------------------------------------------
and payment for the Certificates to which this Agreement applies will be made at
the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other offices specified in the applicable Terms
Agreement, at such time as shall be specified in the applicable Terms Agreement,
or at such other time thereafter or other place as the Representatives and the
Bank shall agree upon, each such time being herein referred to as a "Closing
Date." Delivery of such Certificates shall be made by the Bank to the
Underwriters against payment of the purchase price specified in the applicable
Terms Agreement in same day funds wired to such bank as may be designated by the
Bank, or by such other manner of payment as may be agreed upon by the Bank and
you. Unless otherwise provided in the applicable Terms Agreement, payment for
the Certificates shall be made against delivery through the facilities of The
Depository Trust Company ("DTC") of Book-Entry Certificates to you for the
respective accounts of the several Underwriters. Unless otherwise provided in a
Terms Agreement, the Certificates so to be delivered shall be global
certificates registered in the name of Cede & Co., as nominee for DTC. The
number and denomination of definitive certificates so delivered shall be as
specified by DTC. The definitive certificates for the Certificates will be made
available for inspection and packaging by the Underwriters at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, or such other offices specified in the
applicable Terms
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 7
Agreement, not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date.
4. Offering by Underwriters. (a) It is understood that the several
------------------------
Underwriters propose to offer the Certificates subject to this Agreement for
sale to the public (which may include selected dealers) as set forth in the
Prospectus.
(b) Each Underwriter may provide to prospective investors a Series
Term Sheet relating to the Certificates prepared by the Bank (the "Series Term
Sheet"), which shall be attached to the applicable Terms Agreements subject to
the following conditions:
(i) Such Underwriter shall have complied with the requirements of
the no-action letter, dated May 20, 1994, issued by the Commission to
▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in the response to the
request of the Public Securities Association, dated May 24, 1994
(collectively, the "▇▇▇▇▇▇/PSA Letter"), the requirements of the no-action
-----------------
letter, dated February 17, 1995, issued by the Commission to the Public
Securities Association (the "PSA Letter") and the requirements of the no-
----------
action letter, dated April 5, 1996, issued by the Commission to Greenwood
Trust Company (the "Greenwood Letter" and together with the ▇▇▇▇▇▇/PSA
----------------
Letter and the PSA Letter, the "No-Action Letters").
-----------------
(ii) Each Underwriter, severally, represents and warrants to the
Bank that (a) it has not and will not use any information that constitutes
"Computational Materials" with respect to the offering of the Certificates
unless it has obtained the prior written consent of the Bank to such usage
and (b) other than the Series Term Sheet, it has not and will not use any
information that constitutes "ABS Term Sheets," "Structural Term Sheets,"
or "Collateral Term Sheets" with respect to the offering of the
Certificates. For purposes hereof, "Computational Materials" shall have
-----------------------
the meaning given such term in the No-Action Letters. For purposes hereof,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 8
"ABS Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
--------------- ---------------------- ----------------------
shall have the meanings given such terms in the PSA Letter.
5. Certain Agreements of the Bank. The Bank agrees with the
------------------------------
Underwriters that:
(a) Immediately following the execution of each Terms 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 Prospectus, the price at which such Certificates are to be purchased by the
Underwriters from the Bank, either the initial public offering price or the
method by which the price at which such Certificates are to be sold will be
determined, the selling concessions and allowances, if any, and such other
information as the Bank deems appropriate in connection with the offering of
such Certificates, but the Bank will not file any amendments to the Registration
Statement as in effect with respect to the Certificates, or any amendments or
supplements to the Prospectus, unless it shall first have delivered copies of
such amendments or supplements to the Underwriters. The Bank will not file any
amendment to the Registration Statement or supplement to the Prospectus to which
the Representatives reasonably object. The Bank will use its best efforts to
transmit the Prospectus including such Prospectus Supplement to the Commission
pursuant to Rule 424(b) under the Act by a means reasonably calculated to result
in filing with the Commission pursuant to Rule 424(b) under the Act. The Bank
will advise the Representatives promptly of any such filing. The Bank will
immediately advise you and your counsel (i) when notice is received from the
Commission that any post-effective amendment to the Registration Statement has
become or will become effective and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as practicable after
the Bank is advised thereof, and will use every reasonable effort both to
prevent the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 9
(b) 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 the Prospectus
to comply with the Act, the Bank promptly will prepare and file with the
Commission (subject to your prior review pursuant to paragraph (a) of this
Section 5) an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) As soon as practicable, after the Closing Date, the Bank will
cause the Trust to make generally available to the Certificateholders an
earnings statement or statements of the Trust covering a period of at least 12
months beginning after the effective date of the Registration Statement which
will satisfy the provisions of Section 11(a) and Rule 158 of the Act.
(d) The Bank will furnish to you copies of the Registration Statement
(three of which will include all exhibits), each related Preliminary Prospectus,
any Series Term Sheet, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as you
reasonably request. The Bank will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Bank will pay all expenses incidental to the performance of
its obligations under this Agreement, including without limitation (i) expenses
of preparing, printing and reproducing the Registration Statement, any Series
Term Sheet, the Prospectus, this Agreement, the Pooling and Servicing Agreement,
any Enhancement, any Enhancement Agreement and the Certificates, (ii) any fees
charged by any rating agency for the rating of the Certificates, (iii) any
expenses (including reasonable fees and disbursements of counsel) incurred by
you in connection with qualification of the Certificates for sale under the laws
of such jurisdictions as you designate, (iv) reasonable fees and expenses of
Skadden,
MORGAN STANLEY & CO. INCORPORATED
November 3, 1998
Page 10
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP in its role as special counsel for the Bank, (v)
any expenses incurred by you in connection with listing the Certificates on the
Luxembourg Stock Exchange and (vi) the cost of delivering the Certificates to
the offices of the Underwriters, insured to the satisfaction of the Underwriters
(it being understood that, except as provided in this subsection (e) and in
Section 8 hereof, the Underwriters will pay their own expenses, including the
expense of preparing, printing and reproducing any agreement among underwriters,
the fees and expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ in its role as
special counsel for the Underwriters, any transfer taxes on resale of any of the
Certificates by them and advertising expenses connected with any offers that the
Underwriters may make).
(f) The Bank will arrange for the qualification of the Certificates
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you designate and will continue such
qualifications in effect so long as required for the distribution of the
Certificates; provided, however, that the Bank shall not be obligated to qualify
to do business in any jurisdiction in which it is not currently so qualified.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, (i) the Bank, as Servicer, will furnish to you copies of
each certificate and the annual statements of compliance delivered to the
Trustee pursuant to Article III of the Pooling and Servicing Agreement and the
annual independent certified public accountant's servicing reports furnished to
the Trustee pursuant to Article III of the Pooling and Servicing Agreement, by
first-class mail as soon as practicable after such statements and reports are
furnished to the Trustee and (ii) on each Determination Date or as soon
thereafter as practicable, the Bank, as Servicer, shall give notice to you by
telex or telecopy in substantially the form of the Certificateholder's Statement
attached to Exhibit D to the Pooling and Servicing Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 11
(h) So long as any of the Certificates are outstanding, the Bank will
furnish to you by firstclass mail as soon as practicable, all documents (A)
distributed, or caused to be distributed, by the Bank to Certificateholders, (B)
filed, or caused to be filed, by the Bank with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), any order of
the Commission thereunder or pursuant to a "no-action" letter from the staff of
the Commission and (C) from time to time, such other information in the
possession of the Bank concerning the Trust as you may reasonably request it
being understood that the Bank has no obligation hereunder to furnish you any
information which the Bank deems proprietary or confidential.
(i) Whether or not the transactions contemplated by this Agreement and
the Terms Agreement are consummated or this Agreement and the Terms Agreement
are terminated for any reason, the Bank will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse the
Underwriters for any reasonable expenses (including fees and disbursements of
counsel) incurred by them in connection with qualification of the Certificates
for sale and determination of their eligibility for investment under the laws of
such jurisdictions as you designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating of
the Certificates, for any filing fee of the National Association of Securities
Dealers, Inc. relating to the Certificates, and for expenses incurred in
distributing preliminary prospectuses, any Series Term Sheet and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies specified in the applicable
Terms Agreement is conditional upon the furnishing of documents or the taking of
any other action by the Bank agreed upon on or prior to the Closing Date, the
Bank shall furnish such documents and take such other action.
(k) The Bank will file with the Commission a report on Form 8-K
setting forth all Series Term Sheets prepared by the Bank within the time period
allotted for such filing pursuant to the No-Action Letters.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 12
6. Conditions of the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the 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 under the applicable Terms Agreement and to the
following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this Agreement;
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 or you,
shall be contemplated by the Commission.
(b) 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 Bank, BANK ONE CORPORATION or any Enhancement Provider which, in the
judgment of the Underwriters, materially impairs the investment quality of the
Certificates; (ii) any downgrading in the rating of the debt securities of the
Bank, BANK ONE CORPORATION or any Enhancement Provider by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Bank, BANK ONE CORPORATION or any Enhancement Provider on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by Federal, Illinois or Delaware authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 13
with completion of the sale of and payment for the Certificates.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq., General Counsel and Secretary of BANK ONE CORPORATION, as counsel for the
Bank, a favorable opinion with respect to clauses (i) through (xii) of this
paragraph (c), and from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel to the Bank, a favorable opinion with respect to clause (xiii) of this
paragraph (c), each opinion dated the Closing Date and satisfactory in form and
substance to you and your counsel (provided that the applicable Terms Agreement
may set forth the names of other counsel who shall deliver such opinions), to
the effect that:
(i) the Bank has been duly organized as an association licensed
as a national banking association and is validly existing and in good
standing under the laws of the United States, is duly qualified to do
business and is in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material properties
or conducts material business, and has full power and authority to own its
properties, to conduct its business as described in the Registration
Statement and the Prospectus, to enter into and perform its obligations
under this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement and the Supplement, to execute the Certificates and to
consummate the transactions contemplated hereby and thereby;
(ii) the Pooling and Servicing Agreement and the Supplement have
been duly authorized, executed and delivered by the Bank and constitute the
legal, valid and binding agreements of the Bank, enforceable against the
Bank in accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally from time to time in
effect and the rights of creditors of national banks under United States
laws and except as such enforceability may be limited by general principles
of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 14
equity, whether considered in a proceeding at law or in equity);
(iii) the applicable Terms Agreement, incorporating by reference
this Agreement, has been duly authorized, executed and delivered by the
Bank;
(iv) the Certificates have been duly authorized and, when
executed and authenticated in accordance with the terms of the Pooling and
Servicing Agreement and the Supplement, and delivered to and paid for by
you pursuant to the applicable Terms Agreement, will be validly issued and
outstanding, enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally
from time to time in effect and the rights of creditors of national banks
under United States law and except as such enforceability may be limited by
general principles of equity, whether considered in a proceeding at law or
in equity) and will be entitled to the benefits of the Pooling and
Servicing Agreement and the Supplement;
(v) neither the execution nor the delivery of this Agreement,
the applicable Terms Agreement, the Supplement, the Pooling and Servicing
Agreement or the Enhancement Agreement, if any, nor the issuance or
delivery of the Certificates, nor the consummation of any of the
transactions contemplated herein or therein, nor the fulfillment of the
terms of the Certificates, this Agreement, the applicable Terms Agreement,
the Supplement, the Pooling and Servicing Agreement or the Enhancement
Agreement, if any, will conflict with or violate, result in a material
breach of or constitute a default under any term or provision of the
articles of association or by-laws of the Bank, any statute currently
applicable to the Bank or the Trust or any order or regulation known to
such counsel to be currently applicable to the Bank or the Trust of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Bank or the Trust, as the case may be, or the terms
of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 15
any indenture or other agreement or instrument known to such counsel to
which the Bank or the Trust is a party or by which either of them or any of
their properties is bound;
(vi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator with respect to the Trust, the
Certificates, the Pooling and Servicing Agreement, the Supplement, the
Enhancement, if any, the Enhancement Agreement, if any, or any of the
transactions contemplated herein or therein or with respect to the Bank
which, in the case of any such action, suit or proceeding with respect to
the Bank, if adversely determined, would have a material adverse effect on
the Certificateholders or the Trust or upon the ability of the Bank to
perform its obligations under the Pooling and Servicing Agreement and the
Supplement, and there is no material contract, franchise or document
relating to the Trust or property conveyed to the Trust which is not
disclosed in the Registration Statement or Prospectus; and the statements
included in the Registration Statement and Prospectus describing statutes,
legal proceedings, contracts and other documents fairly summarize the
matters therein described;
(vii) the Registration Statement has become effective under the
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424(b) under the Act has been made in the manner and
within the time period required by Rule 424(b) under the Act; any required
filing of the Series Term Sheet under the Exchange Act has been made in the
manner and within the time period required by the Exchange Act; to the best
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings for that purpose
have been instituted or threatened; the Registration Statement, the
Prospectus and any Series Term Sheet (and any supplements thereto) (other
than financial and statistical information contained therein as to which
such counsel need express no opinion) comply
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 16
as to form in all material respects with the applicable requirements of the
Act and the rules thereunder; and such counsel has no reason to believe
that at the effective date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (other than as to the Registration Statement and the
Prospectus, the information set forth under the caption relating to the
Enhancement or the Enhancement Provider and the financial and statistical
information contained therein as to which such counsel need express no
opinion);
(viii) no approval, authorization, consent, order, registration,
filing, qualification, license or permit of or with any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the Blue Sky laws of any
jurisdiction in connection with the purchase and distribution of the
Certificates by the Underwriters and such filings or other approvals
(specified in such opinion) as have been made or obtained;
(ix) the Bank is the sole owner of all right, title and interest
in, and has good and marketable title to, free and clear of any liens,
security interests or encumbrances other than as permitted by Section
2.08(b) of the Pooling and Servicing Agreement, the Accounts and the
Receivables prior to the assignment of the Receivables to the Trust. The
assignment of the Receivables, all documents and instruments relating
thereto and all proceeds thereof to the Trustee, pursuant to the Pooling
and Servicing Agreement and the Supplement, vests in the Trustee all
interests which are purported to be conveyed thereby, free and clear of any
liens, security interests or encumbrances except as
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 17
specifically permitted pursuant to the Pooling and Servicing Agreement and
the Supplement.
(x) the Certificates, this Agreement, the Enhancement, if any,
the Pooling and Servicing Agreement and the Supplement conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus;
(xi) the Pooling and Servicing Agreement and the Supplement will
not be required to be qualified under the Trust Indenture Act of 1939, as
amended. The Trust is not now, and immediately following the sale of the
Certificates to the Underwriters will not be, required to be registered
under the Investment Company Act of 1940, as amended;
(xii) the statements in the Registration Statement and the
Prospectus under the heading "Certain Legal Aspects of the Receivables," to
the extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects; and
(xiii) the statements in the Registration Statement and the
Prospectus under the headings "Tax Matters" and "ERISA Considerations," to
the extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
In rendering such opinion counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Illinois and the
United States, to the extent deemed proper and stated in such opinion, upon the
opinion of other counsel of good standing believed by such counsel to be
reliable and acceptable to you and your counsel, and (B) as to matters of fact,
to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Trust, the Bank and public officials. References to
the Prospectus in this paragraph (c) include any supplements thereto.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 18
(d) At the time of the execution of each Terms Agreement by the
parties hereto and at the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other
independent accountants as shall be named in the applicable Terms Agreement)
shall have furnished to the Representatives a letter or letters, dated
respectively as of the date of such Terms Agreement and as of the Closing Date,
in form and substance satisfactory to the Representatives and counsel for the
Underwriters, confirming that they are certified independent public accountants
within the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that they have
performed certain specified procedures as a result of which they determined that
certain information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived from the
general accounting records of the Trust and the Bank) set forth in the
Registration Statement, the Series Term Sheet and the Prospectus (and any
supplement thereto), including the information set forth under the captions
"Prospectus Summary," "The Bank's Credit Card Portfolio," "The Accounts," "The
Seller," and "Maturity and Principal Payment Considerations" in the Prospectus,
agrees with the accounting records of the Trust and the Bank, excluding any
questions of legal interpretation.
(e) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
(or such other independent accountants as shall be named in the applicable Terms
Agreement), certified independent public accountants for the Bank, a letter or
letters, dated respectively as of the date of each Terms Agreement and as of the
Closing Date, satisfactory in form and substance to the Representatives and
counsel for the Underwriters, to the effect that they have performed certain
specified procedures as a result of which they have determined that the
information contained in the computer tape of the Accounts made available to
them by the Bank is correct or agrees with the Accounts and the accounting
records of the Trust and the Bank.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 19
(f) The Representatives shall receive evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the offices of the Secretaries of State of Illinois, New York and
Delaware, and in the offices of the Nassau County, New York, recorder reflecting
the interest of the Trust in the receivables and the proceeds thereof.
(g) The Representatives shall have received an opinion or opinions of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or such other counsel as may be named
in the applicable Terms Agreement), special counsel for the Bank, 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, with
respect to the applicability of certain provisions of the National Bank Act and
with respect to other related matters in a form previously approved by the
Representatives and their counsel.
(h) The Representatives shall have received an opinion from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or such other counsel as may be named in the
applicable Terms Agreement), special counsel to the Bank, with respect to the
Federal, Illinois and Delaware income tax and New York income and corporate
franchise tax treatment of the Certificates in form and substance satisfactory
to the Underwriters.
(i) The Representatives shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or such other counsel as may be named in the applicable
Terms Agreement), counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the organization of the Bank, the validity of
the Certificates, the Registration Statement, the Series Term Sheet, the
Prospectus and other related matters as you may require, and the Bank shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 20
(j) The Representatives shall have received a certificate, dated the
Closing Date, of a Vice-President or more senior officer of the Bank in which
such officer, to the best of his or her knowledge after reasonable
investigation, shall state that the representations and warranties of the Bank
in this Agreement are true and correct in all material respects on and as of the
Closing Date, that the Bank has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and under the
applicable Terms Agreement at or prior to the Closing Date, that the
representations and warranties of the Bank in the Supplement and the Pooling and
Servicing Agreement are true and correct as of the dates specified in the
Supplement and in the Pooling and Servicing Agreement, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are threatened by the
Commission and that, subsequent to the date of the most recent financial
statement, delivered to you pursuant to Section 2(ix) hereof, there has been no
material adverse change in the financial position or results of operation of
BANK ONE CORPORATION or the Bank or of the Bank's credit card business except as
set forth in or contemplated by the Prospectus; provided, however, that any
certification involving BANK ONE CORPORATION may be given by a Vice President or
more senior officer of BANK ONE CORPORATION.
(k) You shall have received an opinion of in-house counsel of Norwest
Bank Minnesota, National Association (or such other counsel as may be named in
the applicable Terms Agreement), as counsel for the Trustee, addressed to the
Representatives and the Bank, dated the Closing Date and satisfactory in form
and substance to you and your counsel to the effect that:
(i) the Trustee has been duly organized and is validly existing
as a national banking association in good standing under the laws of the
United States of America;
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 21
(ii) the Trustee has the corporate power and authority to enter
into and perform its obligations under the Supplement, the Pooling and
Servicing Agreement and (if applicable) the Enhancement Agreement and has
duly authorized, executed and delivered the Supplement, the Pooling and
Servicing Agreement and (if applicable) the Enhancement Agreement, and the
Supplement, the Pooling and Servicing Agreement and (if applicable) the
Enhancement Agreement constitute the legal, valid and binding agreements of
the Trustee, enforceable in accordance with their terms, except (y) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership, or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(z) except as enforcement thereof may be subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) as well as concepts of reasonableness, good faith and
fair dealing;
(iii) the Certificates have been duly authenticated by the
Trustee;
(iv) the execution and delivery of the Supplement, the Pooling
and Servicing Agreement and (if applicable) the Enhancement Agreement and
the performance by the Trustee of their terms do not conflict with or
result in a violation of (A) any United States of America or state law or
regulation governing the banking or trust powers of the Trustee, or (B) the
articles of association or by-laws of the Trustee; and
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America having
jurisdiction over the banking or trust powers of the Trustee is required in
connection with its execution and delivery of the Supplement, the Pooling
and Servicing Agreement and (if applicable) the Enhancement Agreement or
the performance by the Trustee of their terms.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 22
(l) You shall have received an opinion of the counsel to the
Enhancement Provider, if any, addressed to the Representatives and the Bank,
dated the Closing Date and satisfactory in form and substance to the
Representatives and their counsel to the effect that:
(i) the Enhancement Provider is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization, is duly qualified to do business in all jurisdictions where
the nature of its operations as contemplated in the Enhancement Agreement
requires such qualification, and has the power and authority (corporate and
other) to issue the Enhancement and to perform its obligations under the
Enhancement and the applicable Enhancement Agreement;
(ii) the Enhancement and the applicable Enhancement Agreement
have each been duly authorized, executed and delivered by the Enhancement
Provider, and each constitutes the legal, valid and binding obligation of
the Enhancement Provider, enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, conservatorship, moratorium or other similar
laws now or hereafter in effect relating to creditors, rights as such laws
would apply in the event of the insolvency, liquidation or reorganization
or other similar occurrence with respect to the Enhancement Provider or in
the event of any moratorium or similar occurrence affecting the Enhancement
Provider;
(iii) the execution, delivery and performance by the Enhancement
Provider of the Enhancement Agreement and the Enhancement have been duly
authorized by all necessary corporate action on the part of the Enhancement
Provider, and under present law do not and will not contravene any law or
governmental regulation or order presently binding on the Enhancement
Provider or the charter or the by-laws of the Enhancement Provider or
contravene any provision of or constitute a default under any indenture,
contract or other instrument to which the Enhancement Provider is a party
or by which the Enhancement Provider is bound; and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 23
(iv) the execution, delivery and performance by the Enhancement
Provider of the Enhancement Agreement and the Enhancement do not require
the consent or approval of, the giving of notice to, the registration with,
or the taking of any other action in respect of any Federal, state or other
governmental agency or authority which has not previously been effected.
(m) [Reserved]
(n) The Enhancement Agreement shall have been duly authorized,
executed and delivered, the Enhancement shall have been duly authorized,
executed, issued and delivered by the Enhancement Provider, all fees due and
payable to the Enhancement Provider as of the Closing Date shall have been paid
in full at or prior to the Closing Date and the Enhancement shall conform in all
material respects to the description thereof in the Registration Statement and
the Prospectus.
(o) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Trust or the Bank the effect of
which, in any case referred to above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Certificates as
contemplated by the Registration Statement and the Prospectus.
(p) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Representatives and counsel for the Underwriters, and
the Representatives and counsel for the Underwriters shall have received such
information, certificates and documents as the Representatives or counsel for
the Underwriters may reasonably request.
(q) You shall have received evidence satisfactory to you that the
Certificates shall be rated in accordance with the applicable Terms Agreement by
the rating agency or agencies specified therein.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 24
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all your obligations hereunder may be cancelled at, or at any time
prior to, the Closing Date by you. Notice of such cancellation shall be given
to the Trust and the Bank in writing or by telephone or telegraph confirmed in
writing. The Bank will furnish, or cause to be furnished to, you with such
number of conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
7. Indemnification and Contribution. (a) The Bank will indemnify and
--------------------------------
hold harmless each Underwriter and each person, if any, controls such
Underwriter within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, 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 any
amendment or supplement thereto, or any related Preliminary Prospectus or Series
Term Sheet, 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 will reimburse each Underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) 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 in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the Bank
by any Underwriter
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 25
through you specifically for use therein and (ii) such indemnity with respect to
the Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Certificates which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Certificates to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in any Preliminary
Prospectus or Series Term Sheet was corrected in the Prospectus (or the
Prospectus as supplemented). This indemnity agreement will be in addition to any
liability which the Bank may otherwise have.
(b) Each Underwriter, severally, agrees to indemnify and hold harmless
the Bank, each of its directors, each of the officers who signs the Registration
Statement, and each person who controls the Bank within the meaning of the Act,
to the same extent as the foregoing indemnities from the Bank to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Bank by or on behalf of such Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
of notice 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
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 26
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party); provided, however, that if the defendants
-------- -------
in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available-to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election to so
appoint counsel to defend such action and approval by the indemnified party of
such counsel, 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 unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Underwriters in the case of subsection (a) of this Section 7, representing the
indemnified parties under such subsection (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in subsection (a) or (b) of this Section
7 is due in accordance with its terms but is for any reason held by a court to
be unavailable on grounds of policy or otherwise, the Bank, on the one hand, and
the Underwriters, on the other, shall contribute to the ▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 27
gregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Bank and the Underwriters may be subject in such proportion so that
the Underwriters are responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of the Prospectus
bears to the public offering price appearing thereon and the Bank is responsible
for the balance; provided, however, that (y) in no case shall any Underwriter
-------- -------
(except as may be provided in the agreement among Underwriters relating to the
offering of the Certificates) be responsible for any amount in excess of the
underwriting discount applicable to the Certificates purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Bank within
the meaning of the Act, each officer of the Bank who shall have signed the
Registration Statement and each director of the Bank shall have the same rights
to contribution as the Bank, as the case may be, subject in each case to clauses
(y) and (z) of this subsection (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against any other party or parties under this subsection (d), notify
such party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this subsection (d).
8. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Certificates agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 28
up any pay for (in the respective proportions which the amount of Certificates
set forth opposite their names in Schedule I to the Terms Agreement bears to the
aggregate amount of Certificates set forth opposite the names of all the
remaining Underwriters) the Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate amount of Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of the Certificates set forth in Schedule I to the Terms Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Certificates, and if such
nondefaulting Underwriters do not purchase all the Certificates, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Trust or
the Bank. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Underwriters shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the Bank
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Bank or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Certificates. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Certificates by the
Underwriters is not consummated, the Bank shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Bank and the Underwriters pursuant to Section 7 shall remain
in effect. If the purchase of the Certificates by the Underwriters is not
consummat-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 29
ed for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clauses (iii),
(iv) or (v) of Section 6(b), the Bank will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Certificates.
10. Notices. All communications hereunder will be in writing and, if
-------
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to you at or c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or, if sent to the Bank, will be mailed,
delivered or telegraphed and confirmed to FCC National Bank, c/o BANK ONE
CORPORATION, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. Any action under this Agreement
------------------------------
with respect to any Series taken by the Representatives jointly or by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ will be binding upon the Underwriters.
13. Applicable Law. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of New York.
14. Miscellaneous. 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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
November 3, 1998
Page 30
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Bank and the several Underwriters
in accordance with its terms.
Very truly yours,
FCC NATIONAL BANK
By: /s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
EXHIBIT A
FIRST CHICAGO MASTER TRUST II
CREDIT CARD CERTIFICATES SERIES 199_-_
TERMS AGREEMENT
---------------
Dated:____________
To: FCC NATIONAL BANK
Re: Underwriting Agreement dated November 3, 1998
Series Designation: Series 199_-_
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Certificates:
-------------------------
Initial
Invested Interest Price to
Amount Rate or Formula Public (1)
------ --------------- ----------
(1) Plus accrued interest at the applicable rate from
___________.
Payment Dates: __________, _________, _________ and
-------------
___________, commencing ________ __, 199_.
Certificate Rating(s]: ________ by ____________
---------------------
_____________,
[_______ by ____________
_____________.
A-1
Enhancement Provider:
--------------------
Purchase Price:
--------------
The purchase price payable by the Underwriters for the Certificates
covered by this Agreement will be the following percentage of the principal
amounts to be issued:
Per Certificate _________%
Registration Statement:
----------------------
Underwriting Commissions, Concessions and Discounts:
---------------------------------------------------
The Underwriters' discounts and commissions, the concessions that the
Underwriters may allow to certain dealers, and the discounts that such dealers
may reallow to certain other dealers, each expressed as a percentage of the
principal amount of the Certificates, shall be as follows:
Underwriting
Discounts and Selling
Commissions Concessions Reallowance
------------- ----------- -----------
___% ___% ___%
Closing Date: ___________ __, 19__, ___ a.m., [New York] Time
------------
Location of Closing:
-------------------
Payment for the Certificates:
----------------------------
Opinion Modifications:
---------------------
Other Modifications:
-------------------
A-2
The Underwriters agree, severally and not jointly, subject to the
terms and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Certificates set
forth opposite their names on Schedule I hereto.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
As Representative of the
Underwriters named in
Schedule 1 hereto.
By:___________________
Name:
Title:
Accepted:
FCC NATIONAL BANK
By:______________________
Name:
Title:
A-3
SCHEDULE I
UNDERWRITERS
$___________ Principal Amount of Credit Card Certificates Series 19_-_
Principal Amount
----------------
[Names of Underwriters] $
_______________
$_______________
A-4
SCHEDULE II
A-5
SCHEDULE III
[Form of Series Term Sheet,
if applicable]
A-6