BANK ONE AUTO SECURITIZATION TRUST 2003-1 BANK ONE AUTO SECURITIZATION LLC (Seller) BANK ONE, NATIONAL ASSOCIATION (Transferor and Servicer) UNDERWRITING AGREEMENT (Standard Terms)
BANK ONE AUTO SECURITIZATION TRUST 2003-1
BANK ONE AUTO SECURITIZATION LLC
(Seller)
BANK ONE, NATIONAL ASSOCIATION
(Transferor and Servicer)
(Standard Terms)
October 1, 2003
Banc One Capital Markets, Inc.,
As an Underwriter and as Representative
of the Underwriters named in the Terms Agreement
1 Bank Xxx Xxxxx, Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Bank One Auto Securitization LLC, a Delaware limited liability company (the “Seller”), proposes to sell the notes of the series, classes and tranches designated in the applicable Terms Agreement (as hereinafter defined) (the “Notes”), to be issued by the entity (the “Issuer”) designated in the applicable Terms Agreement. The Notes will be issued pursuant to an Indenture having the date stated in the applicable Terms Agreement (as so supplemented and as otherwise modified or amended from time to time, the “Indenture”), between the Issuer and JPMorgan Chase Bank, as indenture trustee (the “Indenture Trustee”). The Seller will form the Issuer pursuant to a Trust Agreement having the date stated in the applicable Terms Agreement (as so supplemented and as otherwise modified or amended from time to time, each, a “Trust Agreement”), between the Seller and Wilmington Trust Company, as owner trustee (the “Owner Trustee”). The Issuer will also issue Certificates (the “Certificates” and, together with the Notes, the “Securities”) which will initially be retained by the Seller or an affiliate of the Seller.
The assets of the Issuer will include, among other things, a pool of prime, motor vehicle retail installment sale contracts (the “Receivables”) secured by new and used automobiles and light trucks financed thereby (the “Financed Vehicles”), and certain monies received thereunder after the date stated in the applicable Terms Agreement (the “Cutoff Date”), and the other property and the proceeds thereof to be conveyed to the Issuer pursuant to a Sale and Servicing Agreement having the date stated in the applicable Terms Agreement (as so supplemented and as otherwise modified or amended from time to time, the “Sale and Servicing Agreement”) among the Issuer, the Seller, Bank One, National Association (the “Bank”), as servicer (in such capacity, the “Servicer”) and the Indenture Trustee. Pursuant to the Sale and Servicing Agreement, the Seller will sell the Receivables to the Issuer and the Servicer will service the Receivables on behalf of the Issuer. In addition, pursuant to an Administration Agreement having the date stated in the applicable Terms Agreement (as so supplemented and as otherwise modified or amended from time to time, the “Administration Agreement”) among the Issuer, the Bank, as administrator (in such capacity, the “Administrator”), and the Indenture Trustee, the Bank will agree to perform certain administrative tasks on behalf of the Issuer imposed on the Issuer under the Indenture.
The Receivables were originated or acquired by the Bank. The Bank will sell the Receivables to the Seller pursuant to the terms of a Purchase Agreement having the date stated in the applicable Terms Agreement (as so supplemented and as otherwise modified or amended from time to time, the “Purchase Agreement”) between the Seller and the Bank, as transferor (the “Transferor”).
As used herein, the term “Basic Documents” refers to the Sale and Servicing Agreement, Administration Agreement, Indenture, Trust Agreement, Purchase Agreement and this Agreement.
Except as otherwise specified herein or as the context may otherwise require, capitalized terms used buy not otherwise defined herein or in the applicable Terms Agreement (as defined below) are defined in Appendix X to the Sale and Servicing Agreement.
The Notes designated in the applicable Terms Agreement will be sold in a public offering by the Seller through Banc One Capital Markets, 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;” each representative thereof may be referred to herein together as “Representative,” which, if the context herein does require, shall include Banc One Capital Markets, Inc. in its capacity as Underwriter of any Notes or as Representative). Notes sold to the Underwriters for which Banc One Capital Markets, Inc. is the Representative shall be sold pursuant to a Terms Agreement by and among the Bank, the Seller and the Representative, a form of which is attached hereto as Exhibit A (a “Terms Agreement”), which incorporates by reference this Underwriting Agreement (the “Agreement,” which may include the applicable Terms Agreement if the context so requires). Any Notes sold pursuant to any Terms Agreement may include the benefits of a reserve account, letter of credit, surety bond, cash collateral account, cash collateral guaranty, collateral interest, guaranteed rate agreement, maturity guaranty facility, tax protection agreement, interest rate swap, spread account or other contract or agreement for the benefit of the Noteholders of such series (“Credit Enhancement”).
The Seller 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 registration statement as amended has been declared effective by the Commission. If any post-effective amendment has been filed with respect thereto, prior to the execution and delivery of the applicable Terms Agreement, the most recent such amendment has been declared effective by the Commission. Such registration statement, as amended at the time of effectiveness, including all material incorporated by reference therein and including all information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Act, is referred to in this Agreement as the “Registration Statement.” The Seller proposes to file with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Act a supplement (the “Prospectus Supplement”) to the prospectus included in the Registration Statement (such prospectus, in the form it appears in the Registration Statement or in the form most recently revised and filed with the Commission pursuant to Rule 424(b) is hereinafter referred to as the “Basic Prospectus”) relating to the Notes and the method of distribution thereof. The Basic Prospectus and the Prospectus Supplement, together with any amendment thereof or supplement thereto, is hereinafter referred to as the “Prospectus.”
1.
Purchase, Sale and Delivery of the Notes. Upon the execution of the applicable Terms Agreement, the Seller agrees with the Underwriters as follows:
(a)
Subject to the terms and conditions herein set forth and in the applicable Terms Agreement, the Seller agrees to sell and deliver the Notes to the several Underwriters as hereinafter provided, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase, severally and not jointly, from the Seller the respective principal amount of the Notes set forth opposite such Underwriter’s name in the applicable Terms Agreement. The Notes are to be purchased by the Underwriters at the purchase price(s) set forth in such Terms Agreement.
(b)
The Seller understands that the Underwriters intend (i) to make a public offering of their respective portions of the Notes as soon after the Registration Statement and this Agreement and the applicable Terms Agreement have become effective as in the judgment of the Representative is advisable and (ii) initially to offer the Notes upon the terms set forth in the Prospectus.
(c)
Unless otherwise provided in the applicable Terms Agreement, payment for the Notes shall be made to the Seller or to its order by wire transfer of same day funds at 10:00 A.M., New York City time, on the Closing Date (as hereinafter defined), or at such other time on the same or such other date, not later than the fifth Business Day thereafter, as the Representative and the Seller may agree upon in writing. The time and date of such payment for the Notes are referred to herein as the “Closing Date.” As used herein, the term “Business Day” means any day other than a day on which banks are permitted or required to be closed in New York City.
(d)
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 Seller. The Notes will be made available for inspection and packaging by the Representative at the office of XxXxx Xxxxxx LLP not later than 1:00 P.M., New York City time, on the Business Day prior to the Closing Date.
2.
Representations and Warranties of the Seller. Upon the execution of the applicable Terms Agreement, the Seller represents and warrants to each Underwriter that:
(a)
The Registration Statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including the Prospectus and such amendments thereto as may have been required on the date of the applicable Terms Agreement, relating to the Notes, has been filed with the Commission and such Registration Statement as amended has become effective. The conditions to the use of a shelf registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Seller and the Registration Statement.
(b)
No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Seller, threatened by the Commission, and on the effective date of the Registration Statement, the Registration Statement and the Base Prospectus conformed in all respects to the requirements of the Act and the rules and regulations of the Commission under the Act (the “Rules and Regulations”), and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the date of the applicable Terms Agreement, the Registration Statement and the Prospectus conform, and at the time of filing of the Prospectus pursuant to Rule 424(b) such documents will conform in all respects to the requirements of the Act and the Rules and Regulations, and on the Closing Date the Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents will include on the date of the applicable Terms Agreement and on the Closing Date any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Seller in writing by such Underwriter through the Representative expressly for use therein.
(c)
As of the Closing Date, the representations and warranties of the Seller, in each of its capacities under each of the Basic Documents to which it is a party, will be true and correct in all material respects as of the date such representation or warranty was given.
(d)
The Seller has been duly organized and is validly existing as a limited liability company, in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to execute, deliver and perform this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by this Agreement and the applicable Terms Agreement and to consummate the transactions contemplated by this Agreement and the applicable Terms Agreement and has been duly qualified 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 Seller or its subsidiaries, taken as a whole.
(e)
As of the Closing Date, the Notes have been duly authorized, and when executed, issued and delivered pursuant to the Indenture, duly authenticated by the Indenture Trustee and delivered by the Seller to the Underwriters pursuant to this Agreement, will be duly and validly executed, authenticated, issued and delivered and entitled to the benefits provided by the Indenture; and the Notes and the Basic Documents conform to the descriptions thereof in the Prospectus in all material respects.
(f)
No consent, approval, authorization or order of, or filing with, any court or governmental agency or governmental body is required to be obtained or made by the Seller for the consummation of the transactions contemplated by this Agreement, the applicable Terms Agreement or any Basic Document, except such as have been obtained and made under the Act, such as may be required under state securities laws and the filing of any financing statements required to perfect the Issuer’s interest in the Receivables or the Indenture Trustee’s interest in the Collateral.
(g)
The Seller is not in violation of its organizational documents nor in default in its performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a party or by which it or its properties are bound which would have a material adverse effect on the transactions contemplated herein or in the Basic Documents.
(h)
The execution, delivery and performance of any of the Basic Documents by the Seller and compliance with the terms and provisions thereof will not result in a material breach or violation of any of the terms and provisions of, or constitute a material default under, any statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller, or any of its respective properties or any agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the properties of the Seller is subject, or the organizational documents of the Seller and the Seller has full power and authority to enter into the Basic Documents.
(i)
Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of the Seller, threatened to which any of the Seller and its subsidiaries is or may be a party or to which any property of the Seller and its subsidiaries is or may be the subject which, if determined adversely to the Seller, 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 Seller and its respective subsidiaries, as applicable, taken as a whole or (ii) the interests of the Noteholders; and there are no contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Basic Prospectus which are not filed or described as required.
(j)
This Agreement and the applicable Terms Agreement has been duly authorized, executed and delivered by the Seller. Each of the Basic Documents to which it is a party has been duly authorized and, when executed and delivered by the Seller, will constitute a valid and binding agreement of the Seller in accordance with its terms.
3.
Representations and Warranties of the Bank. Upon the execution of the applicable Terms Agreement, the Bank represents and warrants to each Underwriter that:
(a)
As of the Closing Date, the representations and warranties of the Bank, in each of its capacities under each of the Basic Documents to which it is a party, will be true and correct in all material respects as of the date such representation or warranty was given.
(b)
The Bank has been duly organized and is validly existing a national banking association, in good standing under the laws of the United States with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to execute, deliver and perform this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by this Agreement and the applicable Terms Agreement and to consummate the transactions contemplated by this Agreement and the applicable Terms Agreement and has been duly qualified 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.
(c)
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 or any Basic Document, except such as have been obtained and made under the Act, such as may be required under state securities laws and the filing of any financing statements required to perfect the Issuer’s interest in the Receivables or the Indenture Trustee’s interest in the Collateral.
(d)
The Bank is not in violation of its organizational documents nor in default in its performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a party or by which it or its properties are bound which would have a material adverse effect on the transactions contemplated herein or in the Basic Documents.
(e)
The execution, delivery and performance of any of the Basic Documents by the Bank and compliance with the terms and provisions thereof will not result in a material breach or violation of any of the terms and provisions of, or constitute a material default under, any statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Bank, or any of its respective 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 the Basic Documents.
(f)
Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of the Bank, threatened to which any of the Bank or its subsidiaries is or may be a party or to which any property of the Bank or its subsidiaries is or may be the subject which, if determined adversely to the Bank, could individually or in the aggregate reasonably be expected to have a material adverse effect on (i) the general affairs, business, prospects, management, financial position, stockholders’ equity or results of operations of the Bank and its subsidiaries, taken as a whole or (ii) the interests of the Noteholders; and there are no contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Basic Prospectus which are not filed or described as required.
(g)
This Agreement and the applicable Terms Agreement has been duly authorized, executed and delivered by the Bank. Each of the Basic Documents to which it is a party has been duly authorized and, when executed and delivered by the Bank, will constitute a valid and binding agreement of the Bank in accordance with its terms.
4.
Covenants of the Seller and the Bank. Upon the execution of the applicable Terms Agreement, the Bank and the Seller, jointly and severally covenant and agree with the several Underwriters that:
(a)
Following the execution of this Agreement, the Bank and the Seller will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Basic Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances and such other information as the Bank and the Seller deem appropriate. The Bank and the Seller will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b).
(b)
The Seller will, at the request of the Representative, deliver, at the expense of the Bank, to the Representative, two signed copies of the Registration Statement and each amendment thereto, in each case including exhibits, and to each other Underwriter a conformed copy of the Registration Statement and each amendment thereto, in each case without exhibits and, during the period mentioned in paragraph (e) below, to each of the Underwriters as many copies of the Prospectus (including all amendments and supplements thereto) as the Representative may reasonably request.
(c)
Before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time the Registration Statement becomes effective, the Bank or the Seller will furnish to the Representative a copy of the proposed amendment or supplement.
(d)
The Bank and the Seller will advise the Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement shall have become effective, (ii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose, and (iv) of the receipt by the Bank or the Seller of any notification with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and to use its best efforts to prevent the issuance of any such stop order or notification and, if issued, to obtain as soon as possible the withdrawal thereof.
(e)
The Bank will, if during such period of time after the first date of the public offering of the Notes as in the opinion of counsel for the Underwriters a Prospectus relating to the Notes is required by law to be delivered in connection with sales by an Underwriter or dealer, (i) any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or (ii) it is necessary to amend or supplement the Prospectus to comply with the law, forthwith prepare and furnish, at the expense of the Bank, to the Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Bank and the Seller) to which Notes may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, a copy of such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with the law.
(f)
The Seller shall cause the Issuer to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request and will continue such qualification in effect so long as reasonably required for distribution of the Notes and to pay all fees and expenses (including fees and disbursements of counsel to the Underwriters) reasonably incurred in connection with such qualification and in connection with the determination of the eligibility of the Notes for investment under the laws of such jurisdictions as the Representative may designate; provided, however, that neither the Bank nor the Seller shall be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified; and provided further that neither the Bank nor the Seller shall be required to file a general consent to service of process in any jurisdiction.
(g)
On or before December 31 of the year following the year in which the Closing Date occurs, the Seller will cause the Issuer to make generally available to Noteholders and to the Representative as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Issuer occurring after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(h)
Upon written request by the Representative, so long as any of the Notes are outstanding, the Seller or the Bank will furnish to the Representative copies of all reports or other communications (financial or other) furnished to Noteholders and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.
(i)
Upon written request by the Representative, the Bank, as Servicer, will furnish to the Representative copies of each certificate and the annual statements of compliance delivered to the Indenture Trustee and the Trustee pursuant to the Sale and Servicing Agreement and the annual independent certified public accountant’s servicing reports furnished to the Indenture Trustee and the Trustee pursuant to the Sale and Servicing Agreement, by first-class mail promptly after such request and following delivery of such statements and reports to the Indenture Trustee and the Trustee.
(j)
During the period beginning on the date of the applicable Terms Agreement and continuing to and including the applicable Closing Date, neither the Bank nor the Seller will offer, sell, contract to sell or otherwise dispose of any auto loan-backed securities with the same term and other characteristics identical to the Notes without the prior written consent of the Representative.
(k)
The Indenture will be qualified pursuant to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(l)
To the extent, if any, that the rating provided with respect to the Notes by the rating agency or rating agencies rating the Notes (each, a “Rating Agency”) is conditional upon the furnishing of documents or the taking of any other reasonable action by the Bank or the Seller agreed upon on or prior to the Closing Date, the Bank or the Seller, as applicable, shall furnish such documents and take any such other reasonable action.
5.
The Bank will pay all costs and expenses incident to the performance of its obligations and the obligations of the Seller under this Agreement, including, without limiting the generality of the foregoing, (i) all costs and expenses incident to the preparation, issuance, execution, authentication and delivery of the Notes, (ii) all costs and expenses incident to the preparation, printing and filing under the Act or the Exchange Act of the Registration Statement, the Prospectus and any preliminary prospectus (including in each case all exhibits, amendments and supplements thereto), (iii) all costs and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Notes under the laws of such jurisdictions as the Underwriters may designate (including fees of counsel for the Underwriters and their disbursements), (iv) all costs and expenses related to any filing with the National Association of Securities Dealers, Inc., (v) all costs and expenses in connection with the printing (including word processing and duplication costs) and delivery of this Agreement, the applicable Terms Agreement, each of the Basic Documents and any Blue Sky Memorandum and the furnishing to Underwriters and dealers of copies of the Registration Statement and the Prospectus as herein provided, (vi) the reasonable fees and disbursements of the Bank’s and the Seller’s counsel and accountants and (vii) all costs and expenses payable to each Rating Agency in connection with the rating of the Notes, except that the Underwriters agree to reimburse the Bank for an amount, if any, specified in the applicable Terms Agreement on the Closing Date for application toward such expenses. It is understood that, except as specifically provided in this Section and Sections 6 and 9 of this Agreement, the Underwriters will pay all of their own fees, costs and expenses (including the fees and disbursements of its counsel), transfer taxes and any advertising expenses in connection with sales or offers from the Underwriters to third parties.
6.
Conditions of the Obligations of the Underwriters. The several obligations of the Underwriters hereunder are subject to the performance by the Bank and the Seller of their respective obligations hereunder and under the applicable Terms Agreement and to the following additional conditions:
(a)
On the Closing Date, the Representative shall have received a letter, dated the Closing Date, of KPMG LLP, Certified Public Accountants (or such other independent accountants as shall be named in the applicable Terms Agreement) confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating that the engagement to apply agreed-upon procedures was performed in accordance with the standards established by the American Institute of Certified Public Accountants, and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to its counsel.
(b)
The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Rules and Regulations and in accordance with Section 6(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or, to the knowledge of the Bank or the Seller, threatened by the Commission; and all requests for additional information from the Commission with respect to the Registration Statement shall have been complied with to the satisfaction of the Representative.
(c)
The representations and warranties of the Bank and the Seller contained herein are true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date, and each of the Bank and the Seller shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and, as applicable, under the applicable Terms Agreement at or prior to the Closing Date.
(d)
The Representative shall have received, with respect to the Bank, an opinion of the Chief Legal Officer or a Deputy General Counsel of BANK ONE CORPORATION, or other officer of the Bank acceptable to the Representative, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters.
(e)
The Representative shall have received an opinion of XxXxx Xxxxxx LLP, special counsel for the Seller and the Issuer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, the validity of the Notes, the Registration Statement, the Prospectus Supplement and the Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement, the Prospectus Supplement and the Prospectus.
Such counsel also shall state that they have participated in conferences with representatives of the Bank and its accountants and the Underwriters concerning the Registration Statement and the Prospectus and have considered the matters required to be stated therein and the matters stated therein, although they are not independently verifying the accuracy, completeness or fairness of such statements and based upon and subject to the foregoing, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment in this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement or the Prospectus).
(f)
The Representative shall have received an opinion or opinions of XxXxx Xxxxxx LLP, special counsel for the Seller and the Issuer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to certain matters relating to the transfer of the Receivables from the Bank to the Seller and the Seller to the Trust and the perfection of the Trust’s interest in the Receivables. In addition, the Representative shall have received a reliance letter with respect to any opinion that the Seller is required to deliver to any Rating Agency.
(g)
The Representative shall have received from XxXxx Xxxxxx LLP, special counsel for the Seller and the Issuer, such opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, with respect to the applicability of certain provisions of the Federal Deposit Insurance Act, as amended by the Financial Institutions, Reform, Recovery and Enforcement Act of 1989 with respect to the effect of receivership on the Seller’s security interest in the Receivables, and with respect to other related matters in a form previously approved by the Representative and its counsel. In addition, the Representative shall have received a reliance letter with respect to any opinion that the Seller is required to deliver to any Rating Agency.
(h)
The Representative shall have received an opinion of XxXxx Xxxxxx LLP, special tax counsel for the Seller and the Issuer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, that (i) the Notes will be characterized as debt for Federal income tax purposes; (ii) the Issuer will not be classified as an association, or publicly traded partnership, taxable as a corporation for Federal income tax purposes; and (iii) the statements in the Prospectus under “Federal Income Tax Consequences,” insofar as such statements constitute a summary of the U.S. legal matters or documents referred to therein, fairly present such legal matters or documents.
(i)
The Representative shall have received an opinion of Xxxxxx & Xxxxxx LLP, counsel to the Indenture Trustee, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters relating to the Indenture Trustee.
(j)
The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee, subject to customary qualifications, assumptions, limitations and exceptions dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters relating to the Owner Trustee.
(k)
The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Issuer, subject to customary qualifications, assumptions, limitations and exceptions dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to certain matters relating to the Issuer and the establishment thereof.
(l)
The Representative shall have received a certificate, dated the Closing Date, of a Vice President or more senior officer of the Seller in which such officer, to his or her knowledge after due inquiry, shall state that the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, that the Seller has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that the representations and warranties of the Seller in the Basic Documents to which it is a party are true and correct in all material respects as of the dates specified in the respective Basic Document, that the Registration Statement has become effective, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission and that, subsequent to the date of the Prospectus, there has been no material adverse change in the financial position or results of operation of the Seller’s business except as set forth in or contemplated by the Prospectus or as described in such certificate.
(m)
The Representative shall have received a certificate, dated the Closing Date, of an authorized representative of the Bank in which such representative, to his or her knowledge after due inquiry, shall state that the representations and warranties of the Bank in this Agreement are true and correct in all material respects on and as of the Closing Date, that the Bank has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the applicable Terms Agreement at or prior to the Closing Date, that the representations and warranties of the Bank in the Basic Documents to which it is a party are true and correct in all material respects as of the dates specified in the respective Basic Document, and that, subsequent to the date of the Prospectus, there has been no material adverse change in the financial position or results of operation of the Bank’s motor vehicle retail installment sale contract business except as set forth in or contemplated by the Prospectus or as described in such certificate.
(n)
The Representative shall have received evidence satisfactory to it that the Notes shall be rated in accordance with the applicable Terms Agreement by each Rating Agency.
The Seller will furnish the Representative, or cause it to be furnished with, such number of conformed copies of such opinions, certificates, letters and documents as it reasonably requests.
7.
Indemnification and Contribution. (a) The Bank and the Seller, jointly and severally, agree to indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act and under Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities to which they may become subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, or in any revision or amendment thereof or supplement thereto or any related preliminary prospectus, or arise out of or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party for any legal or other expense reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that none of the Bank or the Seller will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Bank or the Seller by any Underwriter specifically for use therein or any revision or amendment thereof or supplement thereto.
The foregoing indemnity with respect to any untrue statement or omission in any preliminary prospectus or prospectus supplement shall not inure to the benefit of any Underwriter (or to the benefit of any person controlling such Underwriter) from whom the person asserting any such losses, claims, damages or liabilities purchased Notes if a copy of the Prospectus (as then amended or supplemented if the Bank or the Seller shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if such is required by law, at or prior to the written confirmation of the sale of such Notes to such person and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability provided that the Bank or the Seller shall have identified to such Underwriter in writing such defect prior to the delivery of such written confirmation by such Underwriter to such person.
(b)
Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Bank and the Seller, each of their directors, each of its officers who signed the Registration Statement, the Issuer and each person, if any, who controls the Bank or the Seller within the meaning of Section 15 of the Act and under Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities to which they may become subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statements or omissions, or alleged untrue statements of any material fact or omissions, made in the Registration Statement, the Prospectus, or in any revision or amendment thereof or supplement thereto or any related preliminary prospectus or prospectus supplement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Seller or the Bank by such Underwriter through the Representative expressly for use in the Registration Statement or such preliminary prospectus or the Prospectus, or any revision or amendment thereof or supplement thereto and agrees to reimburse such indemnified party for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage or liability or action as such expenses are incurred.
(c)
Each indemnified party shall give prompt written notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement; provided, that the indemnifying party is not materially prejudiced by such failure to notify. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
(d)
In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 6(a) is for any reason held to be unavailable other than in accordance with its terms, the Bank and the Seller and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Bank and the Seller and the Underwriters, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount and commissions bear to the initial public offering price appearing thereon and the Bank and the Seller are jointly and severally responsible for the balance. Notwithstanding the provisions of this Section 10 each Underwriter shall not be required to contribute any amount in excess of the underwriting discount or commission applicable to the Notes purchased by it hereunder. The Seller and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of any of the equitable considerations referred to above in this Section 9(d). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Act shall have the same rights to contribution as such Underwriter, and each director of the Seller, each officer of the Seller who signed the Registration Statement, and each person, if any, who controls the Seller within the meaning of Section 15 of the Act shall have the same rights to contribution as the Seller.
8.
Termination. Notwithstanding anything herein contained, this Agreement and the applicable Terms Agreement may be terminated in the absolute discretion of the Representative, by notice given to the Seller, if after the execution and delivery of this Agreement and the applicable Terms Agreement and prior to the Closing Date there shall have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank or the Seller which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation on trading in securities generally on the New York Stock Exchange or the National Association of Securities Dealers National Market system, or any setting of minimum prices for trading on such exchange or market system; (iii) any suspension of trading of any securities of BANK ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (iv) any banking moratorium declared by Federal, Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities or armed conflict, any declaration of war by Congress, or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity, or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
9.
Default of Underwriter. If any Underwriter defaults in its obligations to purchase Notes hereunder and the aggregate principal amount of the Notes that such defaulting Underwriter agreed but failed to purchase does not exceed 10% of the total principal amount of such Notes, the Representative may make arrangements satisfactory to the Seller for the purchase of such Notes by other persons, including the non-defaulting Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated, in proportion to their commitments hereunder, to purchase the Notes that such defaulting Underwriter agreed but failed to purchase. If any Underwriter so defaults and the aggregate principal amount of the Notes with respect to which such default or defaults occur exceeds 10% of the total principal amount of such Notes and arrangements satisfactory to the Representative and the Seller for the purchase of such Notes by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Seller or the Bank, except as provided in Section 4. Nothing herein will relieve a defaulting Underwriter from liability for its default.
In the event of any such default which does not result in a termination of this Agreement, any of the Representative or the Seller shall have the right to postpone the Closing Date for a period not exceeding seven Business Days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements.
10.
Expenses. If for any reason other than as set forth in Section 8 the purchase of the Notes by the Underwriters is not consummated, the Bank shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 4 and the respective obligations of the Bank, the Seller, and the Underwriters pursuant to Section 6 shall remain in effect. If the purchase of the Notes by the Underwriters is not consummated for any reason other than solely because of the occurrence of any event specified in clauses (ii), (iv) or (v) of Section 7, the Bank will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Notes.
11.
Notices. Any action by the Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any such action taken by the Representative shall be binding upon the Underwriters. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be given to Banc One Capital Markets Inc., as Representative at 1 Bank Xxx Xxxxx, Xxxx Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxx, or to such other address as the Representative may designate in writing to the Seller. Notices to the Seller shall be given to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. XxXxxx, telephone: (000) 000-0000, with a copy to BANK ONE CORPORATION, 1 Bank Xxx Xxxxx, Xxxx Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxxx, First Vice President Structured Finance, telephone: (000) 000-0000. Notices to the Bank shall be given to it at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxx XxXxxx, telephone: (000) 000-0000.
12.
Representation of Underwriters. (a) Except as specifically set forth in the applicable Terms Agreement, each Underwriter, severally, represents and warrants to the Seller and the Bank that it has not and will not use any information that constitutes “Computational Materials,” as defined in the Commission’s No-Action Letter, dated May 20, 1994, addressed to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation (as made generally applicable to registrants, issuers and underwriters by the Commission’s response to the request of the Public Securities Association dated May 27, 1994), with respect to the offering of the Notes.
(b)
Except as specifically set forth in the applicable Terms Agreement, each Underwriter, severally, represents and warrants to the Bank and the Issuer that it has not and will not use any information that constitutes “ABS Term Sheets,” as defined in the Commission’s No-Action Letter, dated February 13, 1995, addressed to the Public Securities Association, with respect to the offering of the Notes.
(c)
Each Underwriter, severally, represents that it will not, at any time that such Underwriter is acting as an “underwriter” (as defined in Section 2(11) of the Act) with respect to the Notes, transfer, deposit or otherwise convey any Notes into a trust or other type of special purpose vehicle that is sponsored by such Underwriter or an Affiliate of such Underwriter and that issues securities or other instruments backed in whole or in part by, or that represents interests in, such Notes without the prior written consent of the Seller.
13.
This Agreement shall become effective upon execution and delivery of the applicable Terms Agreement.
14.
Successors. This Agreement shall inure to the benefit of and be binding upon the Bank, the Seller, the Underwriters, any controlling persons referred to herein and their respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person, firm or corporation any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. No purchaser of Notes from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
15.
Counterparts. This Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.
16.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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 among the Bank, the Seller and the Underwriters in accordance with its terms.
Very truly yours,
BANK ONE AUTO SECURITIZATION LLC
By:
/s/ Xxxxxxx Xxxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxxx
Title:
Vice President
BANK ONE, NATIONAL ASSOCIATION
By:
/s/ Xxxxxxx Xxxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxxx
Title:
Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written.
BANC ONE CAPITAL MARKETS, INC.,
as Underwriter and as Representative of the
Underwriters to be named in Schedule I to the
applicable Terms Agreement
By:
/s/ Xxxxxxx X. Xxx
Name:
Xxxxxxx X. Xxx
Title:
Managing Director
EXHIBIT A
BANK ONE AUTO SECURITIZATION TRUST 200_-_
ASSET BACKED NOTES
TERMS AGREEMENT
Dated:_________, 200_
To: | BANK ONE AUTO SECURITIZATION LLC BANK ONE, NATIONAL ASSOCIATION |
Re: | Underwriting Agreement dated _________, 200_ |
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.
Trust: Bank One Auto Securitization Trust 200_-_
Terms of the Notes:
Initial Principal | Interest Rate | ||
Class | Amount | or Formula | Price to Public |
Class A-1 | $ | % | % |
Class A-2 | $ | % | % |
Class A-3 | $ | % | % |
Class A-4 | $ | % | % |
Class B | $ | % | % |
Cutoff Date: ____________, 200_
Closing Date: ____________, 200_
Distribution Dates: On the 20th of each month, or if the 20th day is not a Business Day, the next Business Day, commenting __________, 200_.
Note Ratings:
Class | Xxxxx’x | Standard & Poor’s | Fitch, Inc. |
Class A-1 | Prime-1 | A-1+ | A-1+ |
Class A-2 | Aaa | AAA | AAA |
Class A-3 | Aaa | AAA | AAA |
Class A-4 | Aaa | AAA | AAA |
Class B | A | A | A |
Indenture: The Indenture, dated as of __________, 200_, between the Trust and __________, as Indenture Trustee.
Trust Agreement: The Trust Agreement, dated as of __________, 200_, between Bank One Auto Securitization LLC, as Seller, and Wilmington Trust Company, as Owner Trustee.
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated as of __________, 200_, among the Trust, Bank One Auto Securitization LLC, as Seller, and Bank One, National Association, as Servicer.
Administration Agreement: The Administration Agreement, dated as of __________, 200_, among the Trust, Bank One, National Association, as Administratior, and __________, as Indenture Trustee.
Purchase Agreement:
Purchase Price:
The purchase price payable by the Underwriters for the Notes covered by this Agreement will be as set forth below:
Class | Purchase Price Percentage | Dollar Amount |
Class A-1 | ||
Class A-2 | ||
Class A-3 | ||
Class A-4 | ||
Class B | ||
Total Purchase Price: | $ |
Registration Statement Number:
Underwriter’s Information:
The information furnished by the Underwriters through the Representative for purposes of Section 9(b) of the Underwriting Agreement consists of the [___] paragraph(s) under the heading “Underwriting” in the Prospectus Supplement.
Location of Closing: XxXxx Xxxxxx LLP, 0 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Payment for the Notes:
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 Notes set forth opposite their names on Schedule I hereto.
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 Notes set forth opposite their names on Schedule I hereto.
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 among the Bank, the Seller and the Underwriters in accordance with its terms.
BANC ONE CAPITAL MARKETS, INC.
As Representative of the
Underwriters named in Schedule I hereto
By:_______________________________________ | |
Name: Title: | |
Accepted: | |
BANK ONE AUTO SECURITIZATION LLC | |
By:_______________________________________ | |
Name: Title: | |
BANK ONE, NATIONAL ASSOCIATION | |
By:_______________________________________ | |
Name: Title: | |
SCHEDULE I
UNDERWRITERS
Class A-1 | Class A-2 | Class A-3 | Class A-4 | Class B | |
Underwriters | Principal Amount | Principal Amount | Principal Amount | Principal Amount | Principal Amount |
[Name of Underwriter] | $ | $ | $ | $ | $ |
[Name of Underwriter] | $ | $ | $ | $ | $ |
Total: | $ | $ | $ | $ | $ |
Principal Amount
