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Exhibit
1.1A
CHASE ISSUANCE
TRUST
CHASE BANK USA, NATIONAL
ASSOCIATION
(Transferor and
Servicer)
UNDERWRITING
AGREEMENT
(Standard Terms)
May 1, 2008
J.P. Morgan Securities Inc.,
as an Underwriter and as
Representative
of the Underwriters named in the
applicable Terms Agreement
270 Park Avenue, Floor 10
New York, New York 10017
Ladies and Gentlemen:
Chase Issuance Trust, a
Delaware statutory trust (the “ Issuing Entity
”), and Chase Bank USA, National Association (the “
Bank ”), as transferor (in such capacity, the “
Transferor ”) and servicer (in such capacity, the
“ Servicer ”) and as beneficiary (in such
capacity, the “ Beneficiary ”) of the Issuing
Entity, propose to sell the notes of the series, classes and
tranches designated in the applicable Terms Agreement (as
hereinafter defined) (the “ Notes ”). The Notes
will be issued pursuant to the Third Amended and Restated
Indenture, dated as of December 19, 2007 and as supplemented
by the Second Amended and Restated Asset Pool One Supplement, dated
as of December 19, 2007 (the “ Asset Pool One
Supplement ”), between the Issuing Entity and Wells Fargo
Bank, National Association, as indenture trustee (in such capacity,
the “ Indenture Trustee ”) and collateral agent
(in such capacity, the “ Collateral Agent ”),
the Amended and Restated CHASEseries Indenture Supplement, dated as
of October 15, 2004, and a Terms Document having the date
stated in the applicable Terms Agreement (as so supplemented and as
otherwise modified or amended from time to time, the “
Indenture ”), between the Issuing Entity and the
Indenture Trustee. The Issuing Entity will be operated pursuant to
a Third Amended and Restated Trust Agreement, dated as of
March 14, 2006 (as may be further amended from time to time,
the “ Trust Agreement ”), between the Bank, as
Beneficiary, and Wilmington Trust Company, as owner trustee (the
“ Owner Trustee ”). The Notes will be secured
pursuant to the Asset Pool One Supplement by certain assets of the
Issuing Entity, including the Asset Pool One Receivables (as
defined in the Asset Pool One Supplement), the FUSA Collateral
Certificate, the Chase Collateral Certificate, the FUSA Receivables
and the Chase Receivables (the Asset Pool One Receivables,
the
FUSA Receivables and the Chase
Receivables are collectively referred to herein as the “
Receivables ”), as discussed below (collectively, the
“ Collateral ”).
The Bank transfers credit
card receivables to the First USA Credit Card Master Trust (the
“ First USA Credit Card Master Trust ”) pursuant
to the Third Amended and Restated Pooling and Servicing Agreement,
dated as of December 19, 2007, between the Bank, as transferor
(in such capacity, the “ FUSA Transferor ”) and
servicer (in such capacity, the “ FUSA Servicer
”), and BNYM (Delaware) (formerly known as The Bank of New
York (Delaware)), as trustee (in such capacity, the “ FUSA
Master Trust Trustee ”) (as may be further amended from
time to time, the “ FUSA Pooling and Servicing
Agreement ”), as supplemented by the applicable Series
Supplement (the “ FUSA Series Supplement ”;
references herein to the FUSA Pooling and Servicing Agreement shall
mean, unless otherwise specified, the FUSA Pooling and Servicing
Agreement as supplemented by the FUSA Series Supplement), having
the date stated in the applicable Terms Agreement, among the Bank,
as FUSA Transferor and FUSA Servicer, and the FUSA Master Trust
Trustee.
The assets of the First USA
Credit Card Master Trust include, among other things, receivables
(the “ FUSA Receivables ”) arising under certain
revolving credit card accounts (the “ FUSA Accounts
”). Pursuant to the FUSA Pooling and Servicing Agreement and
the Third Amended and Restated Transfer and Servicing Agreement,
among the Bank, as Transferor, Servicer and Administrator, the
Issuing Entity, and the Indenture Trustee and the Collateral Agent,
dated as of December 19, 2007 (the “ Transfer and
Servicing Agreement ”), the Bank has caused the First USA
Credit Card Master Trust to issue to the Issuing Entity a
collateral certificate (the “ FUSA Collateral
Certificate ”). The FUSA Collateral Certificate is an
investor certificate under the FUSA Pooling and Servicing Agreement
that represents undivided interests in certain assets of the First
USA Credit Card Master Trust.
The Bank transfers credit
card receivables to the Chase Credit Card Master Trust (the “
Chase Credit Card Master Trust ”) pursuant to the
Fifth Amended and Restated Pooling and Servicing Agreement, dated
as of December 19, 2007, between the Bank, as transferor (in
such capacity, the “ Chase Transferor ”) and
servicer (in such capacity, the “ Chase Servicer
”) and The Bank of New York, as trustee (in such capacity,
the “ Chase Master Trust Trustee ”) and paying
agent (as may be further amended from time to time, the “
Chase Pooling and Servicing Agreement ”), as
supplemented by the applicable Series Supplement (the “
Chase Series Supplement ”; references herein to the
Chase Pooling and Servicing Agreement shall mean, unless otherwise
specified, the Chase Pooling and Servicing Agreement as
supplemented by the Chase Series Supplement), having the date
stated in the applicable Terms Agreement, among the Bank, as Chase
Transferor and Chase Servicer, and the Chase Master Trust
Trustee.
The assets of the Chase
Credit Card Master Trust include, among other things, receivables
(the “ Chase Receivables ”) arising under
certain revolving credit card accounts (the “ Chase
Accounts ”). Pursuant to the Chase Pooling and Servicing
Agreement and the Transfer and Servicing Agreement, the Bank has
caused the Chase
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Credit Card Master Trust to issue to the
Issuing Entity a collateral certificate (the “ Chase
Collateral Certificate ”). The Chase Collateral
Certificate is an investor certificate under the Chase Pooling and
Servicing Agreement that represents undivided interests in certain
assets of the Chase Credit Card Master Trust.
The Notes designated in the
applicable Terms Agreement will be sold in a public offering by the
Issuing Entity through J.P. Morgan Securities Inc., as the
representative of the underwriters listed on Schedule I to the
applicable Terms Agreement (any underwriter through which Notes are
sold shall be referred to herein as an “ Underwriter
” or, collectively, all such Underwriters may be referred to
as the “ Underwriters ”; J.P. Morgan Securities
Inc. and each other representative, if any, may be referred to
herein collectively as “ Representative ”).
Notes sold to the Underwriters for which J.P. Morgan Securities
Inc. is a Representative shall be sold pursuant to a Terms
Agreement by and among the Bank, the Issuing Entity and the
Representative, a form of which is attached hereto as Exhibit A (a
“ Terms Agreement ”), which incorporates by
reference this Underwriting Agreement (this “
Agreement ”, which may include the applicable Terms
Agreement if the context so requires). Any Notes sold pursuant to
any Terms Agreement may include the benefits of a reserve account,
letter of credit, surety bond, cash collateral account, cash
collateral guaranty, collateral interest, interest rate swap,
spread account or other contract or agreement for the benefit of
the holders of Notes of such Series (“ Credit
Enhancement ”). The term “ applicable Terms
Agreement ” means each Terms Agreement with respect to a
specific Tranche of Notes that references this Agreement. To the
extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Indenture, the FUSA Pooling
and Servicing Agreement or the Chase Pooling and Servicing
Agreement. Unless otherwise stated herein or in the applicable
Terms Agreement, as the context otherwise requires or if such term
is otherwise defined in the Indenture, the FUSA Pooling and
Servicing Agreement or the Chase Pooling and Servicing Agreement,
each capitalized term used or defined herein or in the applicable
Terms Agreement shall relate only to the Notes designated in the
applicable Terms Agreement and no other Series, Class or Tranche of
Notes issued by the Issuing Entity.
Section 1. Registration
Statement .
The Bank has prepared and
filed with the Securities and Exchange Commission (the “
Commission ”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “ Act
”), a shelf registration statement on Form S-3 (having the
registration number stated in the applicable Terms Agreement),
including a form of prospectus, relating to the Notes, the FUSA
Collateral Certificate and the Chase Collateral Certificate. The
registration statement as amended has been declared effective by
the Commission. If any post-effective amendment has been filed with
respect thereto, prior to the execution and delivery of the
applicable Terms Agreement, the most recent such amendment has been
declared effective by the Commission. Such registration statement,
as amended at the time of effectiveness, including all material
incorporated by reference therein and including all information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is
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referred to in this Agreement as the
“ Registration Statement ”. The Bank also has
filed with, or proposes to file with, the Commission pursuant to
Rule 424(b) (“ Rule 424(b) ”) under the Act a
prospectus supplement specifically relating to the Notes designated
in the applicable Terms Agreement (the “ Prospectus
Supplement ”).
The related prospectus, filed
with the Commission on May 1, 2008 (the “ Most Recent
Quarterly Filing Date ”), covering the Notes designated
in the applicable Terms Agreement in the form first required to be
filed to satisfy the condition set forth in Rule 172(c) under the
Act is hereinafter referred to as the “ Base
Prospectus ”, and the Base Prospectus as supplemented by
the Prospectus Supplement required to be filed to satisfy the
condition set forth in Rule 172(c) under the Act is hereinafter
referred to as the “ Prospectus ”. The Base
Prospectus will generally be filed with the Commission within 60
days of the end of each calendar quarter and as required
(i) to amend or supplement the Base Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or
(ii) to comply with law.
Any reference in this
Agreement to the Registration Statement, any preliminary prospectus
used in connection with the offering of the Notes designated by the
applicable Terms Agreement (the “ Preliminary
Prospectus ”) or the Prospectus shall be deemed to refer
to and include any exhibits thereto and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the effective date of the Registration Statement or the
date of such Preliminary Prospectus or Prospectus, as the case may
be, and any reference to “ amend ”, “
amendment ” or “ supplement ” with
respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed as of the Closing Date (as defined below) under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “
Exchange Act ”) that are deemed to be incorporated by
reference therein.
At or prior to the time when
sales to investors (including, without limitation, contracts of
sale) of the Notes designated by the applicable Terms Agreement
were first made (the “ Time of Sale ”), the Bank
had prepared the information (including any “ free writing
prospectus ”, as defined pursuant to Rule 405 under the
Act (a “ Free Writing Prospectus ”)) listed on
Annex I to the applicable Terms Agreement (collectively, the
“ Time of Sale Information ”).
Section 2. Purchase of the Notes
Offered by the Applicable Terms Agreement by the Underwriters
.
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(a) |
Upon the execution of the applicable Terms Agreement, the Bank
agrees with the Underwriters as follows: |
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(i) |
Subject to
the terms and conditions herein set forth and in the applicable
Terms Agreement, the Bank agrees to cause the Issuing Entity to
sell and deliver the Notes to the several Underwriters
as
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hereinafter provided, and
each Underwriter, upon the basis of the representations, warranties
and agreements herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly,
from the Issuing Entity the respective principal amount of the
Notes set forth opposite such Underwriter’s name in Schedule
I to the applicable Terms Agreement. The Notes are to be purchased
by the Underwriters at the purchase price(s) set forth in such
Terms Agreement. The Issuing Entity will not be obligated to
deliver any Notes except upon payment for all of the Notes to be
purchased as provided in the applicable Terms Agreement.
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(ii) |
The Bank understands that the Underwriters intend (x) to
make a public offering of their respective portions of the Notes as
soon after the Registration Statement and this Agreement and the
applicable Terms Agreement have become effective as in the judgment
of the Representative is advisable and (y) initially to offer
the Notes upon the terms set forth in the Prospectus. The Bank
acknowledges and agrees that the Underwriters may offer and sell
the Notes to or through any affiliate of an Underwriter and that
any such affiliate may offer and sell any Notes purchased by it to
or through any such Underwriter. |
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(iii) |
Payment for the Notes shall be made to the Bank or to its order
by wire transfer of same day funds on the Closing Date. As used
herein, (x) the term “ Closing Date ”
means, with respect to the applicable Terms Agreement, the date and
time specified in such Terms Agreement or such other time on the
same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Bank may agree upon in
writing, and (y) the term “ Business Day ”
means any day other than a day on which banks are permitted or
required to be closed in New York City. |
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(iv) |
Unless otherwise provided in the applicable Terms Agreement,
payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several
Underwriters of the Notes registered in the name of Cede &
Co. as nominee of The Depository Trust Company and in such
denominations as the Representative shall request in writing not
later than two full Business Days prior to the Closing Date, with
any transfer taxes payable in connection with the transfer to the
Underwriters of the Notes duly paid by the Bank. The Notes will be
made available for inspection and packaging by the Representative
at the office of Skadden, Arps, Slate, Meagher & Flom LLP
not later than 5:00 P.M., New York City time, on the Business Day
prior to the Closing Date. |
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Section 3. Representations and
Warranties of the Bank .
Upon the execution of the
applicable Terms Agreement, the Bank represents and warrants to
each Underwriter that:
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(a) |
Registration Statement and Prospectus . The Registration
Statement has been declared effective by the Commission under the
Act; no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for
that purpose has been instituted or, to the knowledge of the Bank,
threatened by the Commission, and the Registration Statement and
the Prospectus and any amendment thereto, at the time the
Registration Statement became effective complied, and as of the
date of the Prospectus Supplement will comply, in all material
respects with the Act and the Registration Statement did not at the
time the Registration Statement became effective and will not on
the Closing Date 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, in the light of
the circumstances under which they were made, not misleading, and
as of the date of the Prospectus and any amendment or supplement
thereto and on the date of the applicable Terms Agreement, the
Prospectus will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
provided , that the Bank makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Bank in writing by such Underwriter
through the Representative expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement
thereto; and the conditions to the use by the Bank of a
registration statement on Form S-3 under the Act, as set forth in
the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the
Prospectus; |
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(b) |
Time of
Sale Information . The Time of Sale Information did not at the
Time of Sale and will not on the Closing Date contain 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 (it
being understood that no representation or warranty is made with
respect to the omission of pricing and price-dependent information,
which information, shall of necessity appear only in the final
Prospectus); provided that the Bank makes no representation
and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to
any
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Underwriter furnished to
the Bank in writing by such Underwriter through the Representative
expressly for use in such Time of Sale Information;
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(c) |
Issuer Free Writing Prospectuses . Other than the
Preliminary Prospectus and the Prospectus, the Bank (including its
agents and representatives other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “ written communication
” (as defined in Rule 405 under the Act) that constitutes an
offer to sell or solicitation of an offer to buy the Notes other
than the documents, if any, listed on Annex II to the applicable
Terms Agreement and other written communication approved in writing
in advance by the Representative. Pursuant to Rule 433 under the
Act, an “ Issuer Free Writing Prospectus ” shall
mean a free writing prospectus prepared by or on behalf of the
Issuing Entity or used or referred to by the Issuing Entity and, in
the case of an asset-backed issuer, prepared by or on behalf of a
depositor, sponsor or servicer (as defined in Item 1101 of
Regulation AB) or affiliated depositor or used or referred to by
any such person. Each such Issuer Free Writing Prospectus complied
in all material respects with the Act, has been filed to the extent
required by Rule 433(d) under the Act and, when taken together with
the Preliminary Prospectus, such Issuer Free Writing Prospectus did
not at the Time of Sale, and will not on the Closing Date include
any information that conflicted, conflicts or will conflict with
the information then contained in the Registration Statement or the
Prospectus, and did not at the Time of Sale, and will not on the
Closing Date contain any untrue statements 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 that the Bank makes
no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Bank in writing by
such Underwriter through the Representative expressly for use in
any Issuer Free Writing Prospectus; |
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(d) |
Representations and Warranties in the Pooling and Servicing
Agreements and the Transfer and Servicing Agreement . As of the
Closing Date, the representations and warranties of the Bank, as
Transferor and Servicer, in the FUSA Pooling and Servicing
Agreement, the Chase Pooling and Servicing Agreement and the
Transfer and Servicing Agreement will be true and correct in all
material respects; |
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(e) |
Organization and Good Standing . The Bank has been duly
organized and is validly existing as a national banking association
in good standing under the laws of the United States, with power
and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and to execute,
deliver and perform this Agreement and the applicable Terms
Agreement and to authorize the sale of the Notes, and to
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consummate the
transactions contemplated by this Agreement and the applicable
Terms Agreement and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Bank and its subsidiaries, taken as a whole;
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(f) |
Due Authorization . (i) The FUSA Collateral
Certificate has been duly authorized, and has been validly
executed, authenticated, issued and delivered and is entitled to
the benefits provided by the FUSA Pooling and Servicing Agreement.
Each increase in the Invested Amount of the FUSA Collateral
Certificate will have been authorized and effected in accordance
with the FUSA Pooling and Servicing Agreement; each of the FUSA
Pooling and Servicing Agreement, this Agreement and the applicable
Terms Agreement have been duly authorized by the Bank, and, when
executed and delivered by the Bank, as Transferor and Servicer, and
the FUSA Master Trust Trustee (in the case of the FUSA Pooling and
Servicing Agreement), each of the FUSA Pooling and Servicing
Agreement, this Agreement and the applicable Terms Agreement will
constitute a valid and binding agreement of the Bank; and the FUSA
Collateral Certificate and the FUSA Pooling and Servicing Agreement
conform to the descriptions thereof in the Prospectus in all
material respects; and (ii) the Chase Collateral Certificate
has been duly authorized, and has been validly executed,
authenticated, issued and delivered and is entitled to the benefits
provided by the Chase Pooling and Servicing Agreement. Each
increase in the Invested Amount of the Chase Collateral Certificate
will have been authorized and effected in accordance with the Chase
Pooling and Servicing Agreement; each of the Chase Pooling and
Servicing Agreement, this Agreement and the applicable Terms
Agreement have been duly authorized by the Bank, and, when executed
and delivered by the Bank, as Transferor and Servicer, and the
Chase Master Trust Trustee (in the case of the Chase Pooling and
Servicing Agreement), each of the Chase Pooling and Servicing
Agreement, this Agreement and the applicable Terms Agreement will
constitute a valid and binding agreement of the Bank; and the Chase
Collateral Certificate and the Chase Pooling and Servicing
Agreement conform to the descriptions thereof in the Prospectus in
all material respects; |
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(g) |
No
Consents . No consent, approval, authorization or order of, or
filing with, any court or governmental agency or governmental body
is required to be obtained or made by the Bank for the consummation
of the transactions contemplated by this Agreement, the applicable
Terms Agreement, the FUSA Pooling and Servicing Agreement, the
Chase Pooling and Servicing Agreement or the Transfer and Servicing
Agreement, except such as have been obtained and made under the
Act, such as may be required under state securities laws and with
respect to the
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filing of any financing
statements required to perfect the First USA Credit Card Master
Trust’s or the Chase Credit Card Master Trust’s
interest in the FUSA Receivables or the Chase Receivables,
respectively, or the Collateral Agent’s interest in the
Collateral;
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(h) |
No Violation or Default . Other than as set forth or
contemplated in the Preliminary Prospectus, the Bank is not
(x) in violation of its organizational documents, (y) in
default in its performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties
are bound or (z) in violation of any statute, rule, regulation
or order of any governmental agency or body or any court having
jurisdiction over the Bank, or any of its properties, which, in the
case of clauses (y) and (z) above, would have a material
adverse effect on the transactions contemplated herein or in the
FUSA Pooling and Servicing Agreement, the Chase Pooling and
Servicing Agreement or the Transfer and Servicing
Agreement; |
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(i) |
No Conflicts . The execution, delivery and performance
by the Bank of this Agreement, the applicable Terms Agreement, the
FUSA Pooling and Servicing Agreement, the Chase Pooling and
Servicing Agreement and the Transfer and Servicing Agreement and
compliance with the terms and provisions thereof will not conflict
with or result in a material breach or violation of any of the
terms and provisions of, or constitute a material default under,
any statute, rule, regulation or order of any governmental agency
or body or any court having jurisdiction over the Bank, or any of
its properties or any agreement or instrument to which the Bank is
a party or by which the Bank is bound or to which any of the
properties of the Bank is subject, or the organizational documents
of the Bank and the Bank has full power and authority to enter into
this Agreement, the applicable Terms Agreement, the FUSA Pooling
and Servicing Agreement, the Chase Pooling and Servicing Agreement
and the Transfer and Servicing Agreement; |
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(j) |
Legal
Proceedings . Other than as set forth or contemplated in the
Prospectus and Time of Sale Information, there are no legal,
governmental or regulatory proceedings pending or, to the knowledge
of the Bank, threatened to which any of the Bank or its
subsidiaries is or may be a party or to which any property of the
Bank or its subsidiaries is or may be the subject which, if
determined adversely to the Bank, could individually or in the
aggregate reasonably be expected to have a material adverse effect
on (i) the general affairs, business, prospects, management,
financial position, stockholders’ equity or results of
operations of the Bank and its subsidiaries, as applicable, taken
as a whole or (ii) the interests of the holders of the Notes;
and there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus
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and the Preliminary
Prospectus which are not filed or described as required;
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(k) |
Underwriting Agreement and the applicable Terms
Agreement . This Agreement and the applicable Terms Agreement
has been duly authorized, executed and delivered by the Bank and
when executed and delivered by the Bank, each of this Agreement and
the applicable Terms Agreement will constitute a valid and binding
agreement of the Bank; and |
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(l) |
Ineligible Issuer . The Bank, on the date on which the
first bona fide offer of the Notes sold pursuant to the applicable
Terms Agreement is made, will not be an “ ineligible
issuer ”, as defined in Rule 405 under the
Act. |
Section 4. Representations and
Warranties of the Issuing Entity .
Upon the execution of the
applicable Terms Agreement, the Issuing Entity represents and
warrants to each Underwriter that:
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(a) |
Registration Statement and Prospectus . The Registration
Statement has been declared effective by the Commission under the
Act; no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for
that purpose has been instituted or, to the knowledge of the
Issuing Entity, threatened by the Commission, and the Registration
Statement and the Prospectus and any amendment thereto, at the time
the Registration Statement became effective complied, and as of the
date of the Prospectus Supplement will comply, in all material
respects with the Act and the Registration Statement did not at the
time the Registration Statement became effective and will not on
the Closing Date 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, in the light of
the circumstances under which they were made, not misleading, and
as of the date of the Prospectus and any amendment or supplement
thereto and on the date of the applicable Terms Agreement, the
Prospectus will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
provided , that the Issuing Entity makes no representation
and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Issuing Entity in writing by such
Underwriter through the Representative expressly for use in the
Registration Statement and the Prospectus and any amendment or
supplement thereto; and the conditions to the use by the Issuing
Entity of a registration statement on Form S-3 under the Act, as
set forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement and the
Prospectus; |
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(b) |
Time of Sale Information . The Time of Sale Information
did not at the Time of Sale and will not on the Closing Date
contain 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 (it being understood that no representation or warranty
is made with respect to the omission of pricing and price-dependent
information, which information, shall of necessity appear only in
the final Prospectus); provided that the Issuing Entity
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Issuing
Entity in writing by such Underwriter through the Representative
expressly for use in such Time of Sale Information; |
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(c) |
Issuer Free Writing Prospectuses . Other than the
Preliminary Prospectus and the Prospectus, the Issuing Entity
(including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used,
prepared, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “ written
communication ” (as defined in Rule 405 under the Act)
that constitutes an offer to sell or solicitation of an offer to
buy the Notes other than the documents, if any, listed on Annex II
to the applicable Terms Agreement and other written communication
approved in writing in advance by the Representative. Each such
Issuer Free Writing Prospectus complied in all material respects
with the Act, has been filed to the extent required by Rule 433(d)
under the Act and, when taken together with the Preliminary
Prospectus, such Issuer Free Writing Prospectus did not at the Time
of Sale, and will not on the Closing Date, include any information
that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement or the Prospectus, and
did not at the Time of Sale, and will not on the Closing Date,
contain any untrue statements 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 that the Issuing Entity makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Issuing Entity in
writing by such Underwriter through the Representative expressly
for use in any Issuer Free Writing Prospectus; |
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(d) |
Representations and Warranties in the Indenture . As of
the Closing Date, the representations and warranties of the Issuing
Entity in the Indenture will be true and correct in all material
respects; |
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(e) |
Organization and Good Standing . The Issuing Entity has
been duly formed and is validly existing as a statutory trust in
good standing under the laws of the State of Delaware, with power
and authority to own its
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properties and conduct its
business as described in the Prospectus and to execute, deliver and
perform the Indenture, and to authorize the issuance of the Notes,
and to consummate the transactions contemplated by the
Indenture;
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(f) |
Due Authorization . As of the Closing Date, the Notes
have been duly authorized, and, when executed, issued and delivered
pursuant to the Indenture, duly authenticated by the Indenture
Trustee and paid for by the Underwriters in accordance with this
Agreement and the applicable Terms Agreement, will be duly and
validly executed, authenticated, issued and delivered and entitled
to the benefits provided by the Indenture; the Indenture has been
duly authorized by the Issuing Entity and, when executed and
delivered by the Issuing Entity and the Indenture Trustee (in the
case of the Indenture), each of the Indenture, this Agreement and
the applicable Terms Agreement will constitute a valid and binding
agreement of the Issuing Entity; and the Notes and the Indenture
conform to the descriptions thereof in the Prospectus in all
material respects; |
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(g) |
No Consents . No consent, approval, authorization or
order of, or filing with, any court or governmental agency or
governmental body is required to be obtained or made by the Issuing
Entity for the consummation of the transactions contemplated by
this Agreement, the applicable Terms Agreement, the Indenture or
the Transfer and Servicing Agreement, except such as have been
obtained and made under the Act, such as may be required under
state securities laws and with respect to the filing of any
financing statements required to perfect the First USA Credit Card
Master Trust’s or the Chase Credit Card Master Trust’s
interest in the FUSA Receivables or the Chase Receivables,
respectively, or the Collateral Agent’s interest in the
Collateral; |
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(h) |
No Violation or Default . The Issuing Entity is not
(x) in violation of its organizational documents, (y) in
default in its respective performance or observance of any
obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or
its properties are bound or (z) in violation of any statute,
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Issuing Entity, or any of its
properties which, in the case of clauses (y) and
(z) above, would have a material adverse effect on the
transactions contemplated herein or in the Indenture; |
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(i) |
No
Conflicts . The execution, delivery and performance of this
Agreement, the applicable Terms Agreement, the Indenture and the
Transfer and Servicing Agreement and the issuance and delivery of
the FUSA Collateral Certificate, the Chase Collateral Certificate
and the Notes and compliance with the terms and provisions thereof
will not conflict with, or result in a material breach or violation
of any of the terms and provisions of, or constitute a material
default under, any statute, rule, regulation or
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order of any governmental
agency or body or any court having jurisdiction over the Issuing
Entity or any of its properties or any agreement or instrument to
which the Issuing Entity is a party or by which the Issuing Entity
is bound or to which any of the properties of the Issuing Entity is
subject, or the organizational documents of the Issuing Entity; and
the Issuing Entity has full power and authority to authorize, issue
and sell the Notes as contemplated by this Agreement, the
applicable Terms Agreement, the Indenture and the Transfer and
Servicing Agreement and to enter into the Indenture;
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(j) |
Legal Proceedings . Other than as set forth or
contemplated in the Prospectus and the Time of Sale Information,
there are no legal or governmental proceedings pending or, to the
knowledge of the Issuing Entity, threatened to which the Issuing
Entity is or may be a party or to which any property of the Issuing
Entity is or may be the subject which, if determined adversely to
the Issuing Entity, could individually or in the aggregate
reasonably be expected to have a material adverse effect on
(i) the general affairs, business, prospects, management,
financial position, equity or results of operations of the Issuing
Entity, and the interests of the holders of the Notes, or
(ii) the interests of the holders of the Notes; and there are
no contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus and
Preliminary Prospectus which are not filed or described as
required; |
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(k) |
Underwriting Agreement and the applicable Terms
Agreement . This Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Issuing
Entity and when executed and delivered by the Issuing Entity, each
of this Agreement and the applicable Terms Agreement will
constitute a valid and binding agreement of the Issuing Entity;
and |
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(l) |
Ineligible Issuer . The Issuing Entity is not, and on
the date on which the first bona fide offer of the Notes sold
pursuant to the applicable Terms Agreement is made will not be, an
“ ineligible issuer ”, as defined in Rule 405
under the Act. |
Section 5. Further Agreements of
the Bank and the Issuing Entity .
Upon the execution of the
applicable Terms Agreement, the Bank and the Issuing Entity,
jointly and severally covenant and agree with the several
Underwriters that:
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(a) |
Filing of
Prospectus and Issuer Free Writing Prospectuses . The Bank and
the Issuing Entity will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) under
the Act and will
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file any Issuer Free
Writing Prospectuses to the extent required by Rule 433(d) under
the Act.
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(b) |
Delivery of Copies . The Issuing Entity will, at the
request of the Representative, deliver (or the Bank will cause the
Issuing Entity to deliver), at the expense of the Bank, during the
period mentioned in subsection 5(e) below, to each of the
Underwriters as many copies of the Prospectus (including all
amendm |
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