Exhibit 1.1
BANC ONE AUTO GRANTOR TRUST 1997-B
$572,563,000.00 CLASS A __% ASSET BACKED CERTIFICATES
$36,547,423.59 CLASS B __% ASSET BACKED CERTIFICATES
BANK ONE, TEXAS, N.A.
(SELLER)
UNDERWRITING AGREEMENT
December __, 1997
BANC ONE CAPITAL CORPORATION
000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000-0340
SALOMON BROTHERS INC
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
Introductory. Bank One, Texas, N.A. (the "Seller"), proposes to
cause BANC ONE AUTO GRANTOR TRUST 1997-B (the "Trust") to issue $572,563,000
principal amount of its Class A __% Asset Backed Certificates (the "Class A
Certificates") and $36,547,423.00 principal amount of its Class B __% Asset
Backed Certificates (the "Class B Certificates" and, together with the Class A
Certificates, the "Certificates") and the Seller proposes to sell the
Certificates to the several underwriters named in Schedule I attached hereto
(the "Underwriters"). The assets of the Trust include, among other things, a
pool of retail receivables generated from time to time pursuant to motor vehicle
retail installment sale contracts (the "Receivables") secured by new or used
automobiles, vans or light-duty trucks financed thereby (the "Financed
Vehicles"), and certain monies received thereunder on or after December 1, 1997
(the "Cutoff Date"), and the other property and the proceeds thereof to be
conveyed to the Trustee pursuant to the Pooling and Servicing Agreement to be
dated as of December 1, 1997 (the "Pooling and Servicing Agreement") among the
Seller, as seller and the Seller, as servicer (in such capacity, the "Servicer")
and Bankers Trust Company, a New York banking corporation, as trustee (the
"Trustee"). Pursuant to the Pooling and Servicing Agreement, the Seller in its
capacity as Seller will sell the Receivables to the Trustee, acting on behalf of
Trust, and in its capacity as Servicer will service the Receivables on behalf of
the Trust. In addition, pursuant to the Pooling and Servicing Agreement, the
Servicer will agree to perform certain administrative tasks. The Certificates
will be issued pursuant to the Pooling and Servicing Agreement. Each of the
Affiliated Banks sold Receivables originated by such Affiliated Bank to the
Seller.
Capitalized terms used and not otherwise defined herein shall
have the meanings given them in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Seller. (a) The Seller
represents and warrants to and agrees with the Underwriters that:
(i) A registration statement (No. 333-38681), including a form
of prospectus, on Form S-3 relating to the Certificates has been filed
with the Securities and Exchange Commission (the "Commission") and
either (A) has been declared effective under the Securities Act of 1933,
as amended (the "Act"), and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment. If the
Seller does not propose to amend such registration statement and if any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of the
Underwriting Agreement, the most recent such amendment has been declared
effective by the Commission. For purposes of the Underwriting Agreement,
"Effective Time" means (x) if the Seller has advised the Underwriters
that it does not propose to amend such registration statement, the date
and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of the Underwriting Agreement, was declared effective by
the Commission, or (y) if the Seller has advised the Underwriters that
it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. "Effective
Date" means the date of the Effective Time. Such registration statement,
as amended at the Effective Time, including all information (if any)
deemed to be a part of such registration statement as of the Effective
Time pursuant to Rule 430A(b) under the Act, and including the exhibits
thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement," and the form of
prospectus relating to the Certificates, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act or, if no such filing is required, as included in
the Registration Statement at the Effective Date, is hereinafter
referred to as the "Prospectus."
(ii) If the Effective Time is prior to the execution and
delivery of the Underwriting Agreement: (A) on the Effective Date, the
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
under the Act (the "Rules and Regulations"), (B) on the date of the
Underwriting Agreement, the Registration Statement conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b), the
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations,
(C) on the Effective Date, the Registration Statement did not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading and (D) on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did
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not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date the Prospectus will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they are made, not misleading. If the Effective Time is subsequent
to the execution and delivery of the Underwriting Agreement: (1) on the
Effective Date, the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, (2) on the Effective Date, the Registration
Statement will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading and (3)
on the Effective Date, at the time of filing of the Prospectus pursuant
to Rule 424(b) and at the Closing Date, the Prospectus will not include
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. The two preceding sentences do not apply to
statements in or omissions from the Registration Statement or Prospectus
based upon written information furnished to the Seller by any
Underwriter through the Underwriters specifically for use therein and
the Seller acknowledges that the only such information is the
Underwriters' Information as defined in Section 2(b) hereof.
(iii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Seller. The execution, delivery and
performance of the Underwriting Agreement and the issuance and sale of
the Certificates and compliance with the terms and provisions hereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, 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 which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Seller has full corporate power
and authority to (i) authorize the Trustee to execute and deliver the
Certificates to the Seller and (ii) sell the Certificates to the
Underwriters, all as contemplated by the Underwriting Agreement.
(iv) Other than as contemplated by the Underwriting Agreement
or as disclosed in the Prospectus, there is no broker, finder or other
party that is entitled to receive from the Seller any brokerage or
finder's fee or other fee or commission as a result of any of the
transactions contemplated by the Underwriting Agreement.
(v) All legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(vi) As of the Closing Date (as defined below), the
representations and warranties of (i) the Seller and the Servicer under
the Pooling and Servicing Agreement will be true and correct in all
material respects and each such representation and warranty is so
incorporated herein by this reference; and (ii) the representations and
warranties of the Seller herein shall be true and correct in all
material respects.
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(vii) The Seller's assignment and delivery of the Receivables
to the Trustee, on behalf of the Trust, on the Closing Date will vest in
the Trustee, on behalf of the Trust, all the Seller's right, title and
interest therein, or will result in a first priority perfected security
interest therein, in either case subject to no prior Lien.
(viii) The Certificates, when duly and validly executed and
authenticated by the Trustee, in accordance with the Pooling and
Servicing Agreement, and delivered and paid for pursuant hereto will be
validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(ix) Neither the transfer from the Seller to the Trustee,
acting on behalf of the Trust, of the Receivables and other Trust
Property conveyed by it to the Trust pursuant to the Pooling and
Servicing Agreement, nor the assignment of the security interest of the
Seller in the Financed Vehicles or the other Trust Property to the
Trustee, acting on behalf of the Trust, pursuant to the Pooling and
Servicing Agreement, nor the issuance, sale and delivery of the
Certificates, nor the fulfillment of the terms of the Certificates, will
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the organizational
documents of the Seller or any material indenture or other material
agreement or instrument to which the Seller is a party or by which it or
its properties is bound or result in a violation of or contravene the
terms of any statute, order or regulation applicable to the Seller of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Seller or will result in the
creation of any Lien upon any material property or assets of the Seller.
(x) The Seller has delivered to the Underwriters or to counsel
for the Underwriters complete and correct copies of publicly available
portions of the Consolidated Report of Condition of the Seller for the
nine months ended September 30, 1997, as submitted to the Governors of
the Federal Reserve System; except as set forth in or contemplated in
the Registration Statement and the Prospectus, there has been no
material adverse change in the financial condition or results of
operations of the Seller since September 30, 1997.
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance by the Seller of
the Underwriting Agreement, the Pooling and Servicing Agreement and the
Certificates shall have been paid or will be paid by or on behalf of the
Seller at or prior to the Closing Date to the extent then due.
(b) The Seller hereby agrees with the Underwriters that, for all
purposes of the Underwriting Agreement, the only information furnished to the
Seller by the Underwriters specifically for use in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, are the statements with respect to stabilization on the
second page of, and the statements under the caption "Underwriting" in, the
preliminary prospectus and the Prospectus (collectively, the "Underwriters'
Information").
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(3) Purchase, Sale and Delivery of the Certificates. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Seller, the principal amount of the Class A Certificates set forth
opposite the name of such Underwriter in Schedule I hereto at a purchase price
of _________% of the principal amount thereof and the principal amount of the
Class B Certificates set forth opposite the name of such Underwriter in Schedule
I hereto at a purchase price of ________% of the principal amount thereof.
The Seller will deliver the Certificates to the Underwriters, for
the account of the Underwriters, against payment of the purchase price to or
upon the order of the Seller by wire transfer or check in Federal (same day)
Funds, at the office of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time on December __, 1997, or at
such other time not later than seven full business days thereafter as the
Underwriters and the Seller determine, such time being herein referred to as the
"Closing Date." The Certificates to be so delivered will be initially
represented by one or more Class A Certificates and one or more Class B
Certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Certificates
will be represented by book entries on the records of DTC and participating
members thereof. Definitive Certificates will be available only under the
limited circumstances specified in the Pooling and Servicing Agreement.
4. Offering. It is understood that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Certificates
for sale to the public (which may include selected dealers), on the terms set
forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with
the several Underwriters that:
(a) If the Effective Time is prior to the execution and delivery
of the Underwriting Agreement, the Seller will file the Prospectus, properly
completed, with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by the Underwriters, subparagraph
(4)) of Rule 424(b) not later than the earlier of (i) the second business day
following the execution and delivery of the Underwriting Agreement and (ii) the
fifteenth business day after the Effective Date. The Seller will advise the
Underwriters promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Underwriters promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus and will not
effect such amendment or supplementation without the consent of the
Underwriters, which consent shall not be unreasonably withheld or delayed; the
Seller will also advise the Underwriters promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information; and the Seller will also
advise the Underwriters promptly of the effectiveness of the Registration
Statement (if the Effective Time is subsequent to the execution of the
Underwriting Agreement) and of any amendment or supplement to the Registration
Statement or the Prospectus and of the issuance by the Commission of any stop
order suspending
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the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and the Seller will use its reasonable best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Certificates
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act, the Seller promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission, or an amendment or supplement which will effect such compliance.
Neither the consent of the Underwriters to, nor the delivery by the Underwriters
of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) The Seller will timely prepare and file all periodic reports,
on behalf of the Trust, with the Commission referred to in its No-Action Letter
to the Commission dated August 11, 1995 until no longer required to do so as
permitted by Section 15(d) of the Exchange Act.
(c) The Seller will furnish to each of the Underwriters copies of
the Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Underwriters reasonably request.
(f) The Seller will take all actions which are reasonably
necessary to arrange for the qualification of the Certificates for sale under
the laws of such jurisdictions as the Underwriters designate and will continue
such qualifications in effect so long as required for the distribution;
provided, however, that in no event shall the Seller be obligated to qualify as
a foreign corporation or to execute a general or unlimited consent to service of
process in any such jurisdiction.
(g) For a period from the date of the Underwriting Agreement until
the retirement of the Certificates, or until such time as the Underwriters shall
cease to maintain a secondary market in the Certificates, whichever occurs
first, the Seller will deliver to the Underwriters the annual statements of
compliance and the annual independent certified public accountants' reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(h) So long as any of the Certificates are outstanding, the Seller
will furnish to the Underwriters (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Certificateholders or
filed with the Commission on behalf of the Trust pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Seller as the Underwriters may reasonably request only insofar as
such information reasonably relates to the Registration Statement or the
transactions contemplated by the Pooling and Servicing Agreement.
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(i) On or before the Closing Date, the Seller shall mark its
accounting and computer records relating to the Receivables to show the absolute
ownership by the Trustee on behalf of the Trust of the Receivables, and from and
after the Closing Date the Seller shall not take any action inconsistent with
the ownership by the Trustee on behalf of the Trust of such Receivables, other
than as permitted by the Pooling and Servicing Agreement.
(j) To the extent, if any, that any of the ratings provided with
respect to the Certificates by the rating agency or agencies that initially rate
any of the Certificates are conditional upon the furnishing of documents or the
taking of any other actions by the Seller on or prior to the Closing Date, the
Seller shall furnish such documents and take any such other actions. A copy of
any such document shall be provided to the Underwriters at the time it is
delivered to the rating agencies.
(k) For the period beginning on the date of the Underwriting
Agreement and ending on the Closing Date, neither the Seller nor any Affiliate
or trust originated, directly or indirectly, by the Seller or any Affiliate (or
any trust, partnership or other entity sponsored by the Seller or any Affiliate
or in which the Seller or any Affiliate is a partner or a stockholder) will,
without the prior written consent of the Underwriters, offer to issue or issue
notes collateralized by, or certificates (other than the Certificates)
evidencing an ownership interest in, motor vehicle installment sale contracts,
provided, however, that except as otherwise provided by the Pooling and
Servicing Agreement, this shall not be construed to prevent (i) the sale of
Receivables by any Affiliate of the Seller to any person or (ii) any sales or
grants of participations in and to Receivables by one or more Affiliates of the
Seller to one or more other Affiliates of the Seller.
(l) The Seller will apply the net proceeds of the sale of the
Certificates that it receives in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(m) The Seller will pay all expenses incident to the performance
of its obligations under the Underwriting Agreement, including, but not limited
to (i) the printing and filing of the documents (including the Registration
Statement and Prospectus), (ii) the preparation, issuance and delivery of the
Certificates to the Underwriters, (iii) the fees and disbursements of the
Seller's counsel and accountants, (iv) the qualification of the Certificates
under securities laws in accordance with the provisions of Section 6(f),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any blue sky or legal investment survey, if any is requested, (v) the printing
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, (vi) the printing and delivery
to the Underwriters of copies of any blue sky or legal investment survey
prepared in connection with the Certificates, (vii) any fees charged by rating
agencies for the rating of the Certificates and (viii) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Certificates
will be subject to the accuracy, as of the date hereof and as of the Closing
Date, of the representations and warranties on the part of the Seller herein, to
the accuracy of the written statements of officers of the Seller made pursuant
to the provisions of this Section, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
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(a) If the Effective Time is not prior to the execution and
delivery of the Underwriting Agreement, the Effective Time shall have occurred
not later than 6:00 p.m. New York City time on the date of the Underwriting
Agreement or such later time or date as shall have been consented to by the
Underwriters.
(b) If the Effective Time is prior to the execution and delivery
of the Underwriting Agreement, the Prospectus and any supplements thereto shall
have been filed with the Commission in accordance with the Rules and Regulations
and Section 5(a) hereof. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or the Underwriters, shall be contemplated by the Commission.
(c) The Underwriters shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time is prior to the execution and
delivery of the Underwriting Agreement, shall be on or prior to the date of the
Underwriting Agreement or, if the Effective Time is subsequent to the execution
and delivery of the Underwriting Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the Registration Statement to be filed
shortly prior to the Effective Time), of Deloitte & Touche L.L.P. with respect
to certain agreed-upon procedures, confirming that such accountants are
independent public accountants within the meaning of the Act and the Rules and
Regulations, and substantially in the form of the draft to which the
Underwriters has previously agreed and otherwise in form and substance
reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(d) Subsequent to the execution and delivery of the Underwriting
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change materially and adversely affecting (A) the Trust
Property taken as a whole or (B) the business or properties of the Seller, each
Subservicer or BANC ONE CORPORATION which, in the reasonable judgment of the
Underwriters in the case of either (A) or (B) makes it impractical or
inadvisable to market the Certificates on the terms and in the manner
contemplated in the Prospectus; (ii) any downgrading in the rating of any debt
securities of BANC ONE CORPORATION or any of its Affiliates by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any such debt securities (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange; (iv) any suspension
of trading of any securities of BANC ONE CORPORATION on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by Federal or New
York authorities; or (vi) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress, or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Certificates.
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(e) The Underwriters shall have received an opinion of Xxxxxx,
Xxxxxxx & Xxxxxxx L.L.P., special counsel to the Seller, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Seller has been duly organized and is validly existing
as a national banking association under the laws of the United States of
America, with corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and to enter into and perform its
obligations under the Underwriting Agreement and the Pooling and
Servicing Agreement.
(ii) The Seller has duly authorized, executed and delivered
the written order to the Trustee to execute and deliver the
Certificates. When the Certificates have been duly executed, delivered
and authenticated in accordance with the Pooling and Servicing Agreement
and delivered and paid for pursuant to the Underwriting Agreement, the
Certificates will be validly issued, outstanding and entitled to the
benefits of the Pooling and Servicing Agreement, subject as to
enforceability to the effects of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws now
or hereafter in effect relating to creditors' rights generally and
subject to general principles of equity (whether in a proceeding at law
or in equity).
(iii) The Seller has duly authorized, executed and delivered
the Underwriting Agreement and the Pooling and Servicing Agreement and
the Pooling and Servicing Agreement is the legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance
with its terms, subject as to enforceability to the effects of
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws now or hereafter in effect
relating to creditors' rights generally or the rights of creditors of
institutions the deposits of which are insured by the Federal Deposit
Insurance Corporation ("FDIC") and subject to general principles of
equity (whether applied in a proceeding at law or in equity).
(iv) Neither the transfer of the Trust Property by the Seller
to the Trustee on behalf of the Trust, nor the execution and delivery by
the Seller of the Underwriting Agreement and the Pooling and Servicing
Agreement, nor the consummation by the Seller of the transactions
contemplated by the Underwriting Agreement or the Pooling and Servicing
Agreement nor the performance by the Seller of its obligations
thereunder will (i) violate the articles of association or by-laws, each
as amended, of the Seller or (ii) violate or contravene the terms of
applicable provisions of statutory law or regulation.
(v) To such counsel's knowledge, there are no actions,
proceedings or investigations pending against the Seller or threatened
against the Seller before any court, administrative agency or tribunal
(i) asserting the invalidity of the Trust, the Underwriting Agreement or
the Pooling and Servicing Agreement, (ii) seeking to prevent the
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consummation of any of the transactions contemplated by the Underwriting
Agreement or the Pooling and Servicing Agreement or the execution and
delivery thereof or (iii) that could reasonably be expected to
materially and adversely affect the enforceability of the Underwriting
Agreement or the Pooling and Servicing Agreement against the Seller or
the ability of the Seller to perform its obligations thereunder.
(vi) No consent, license, approval, authorization or order of,
or filing with, any court or governmental agency or body is required of
the Seller for the consummation by the Seller of the transactions
contemplated in the Underwriting Agreement or the Pooling and Servicing
Agreement, except such consents, licenses, approvals, authorizations or
orders as have been obtained or such filings as have been made and
except where the failure to obtain the same would not have a material
adverse effect upon the rights of the Certificateholders.
(vii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against the Seller that
are required to be disclosed in the Registration Statement, other than
those disclosed therein.
(viii) The Seller is not, and will not as a result of the
offer and sale of the Certificates as contemplated in the Prospectus and
the Underwriting Agreement become, an "investment company" as defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), or a company "controlled by" an "investment company" within the
meaning of the Investment Company Act.
(ix) All actions required, if any, to be taken and all filings
required to be made by the Seller or the Trust under the Act and the
Exchange Act prior to the sale of the Certificates have been duly taken
or made.
(x) The Pooling and Servicing Agreement need not be qualified
under the Trust Indenture Act and the Trust is not required to register
under the Investment Company Act.
(xi) Such counsel has been advised by the Commission's staff
that the Registration Statement has become effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) promulgated
under the Act has been made in the manner and within the time period
required under such rule; and to such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose are pending
or threatened by the Commission.
(xii) The statements in the Prospectus under the headings
"Summary of Terms--Federal Tax Status and State Franchise Tax
Consequences," "Federal Income Tax Consequences," "State and Local Tax
Consequences," "Summary of Terms--ERISA Considerations," and "ERISA
Considerations," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and accurately describe the material
consequences to holders of the Certificates under the Code and ERISA.
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(xiii) Such counsel shall state that they have participated in
the preparation of the Registration Statement and no facts have come to
their attention which may cause them to believe that the Registration
Statement, as of the Effective Time, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as of its date or the Closing Date,
contains any untrue statement of a material fact or omitted to state any
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 such counsel need not express any view with respect to the
financial, statistical or computational material included in the
Registration Statement or the Prospectus.
(xiv) The Pooling and Servicing Agreement meets each of the
requirements of Section 13(e) of the Federal Deposit Insurance Act, as
amended (the "FDIA"), and neither Section 11(d)(9) nor Section
11(n)(4)(I) of the FDIA would prevent the Pooling and Servicing
Agreement from forming the basis of a claim against the FDIC as
conservator or receiver or in its corporate capacity, or against any
bridge bank chartered pursuant to Section 11(n) of the FDIA. For
purposes of this paragraph (xiv), such counsel may assume that from the
time of its execution the Pooling and Servicing Agreement has been and
will be an official record (as such term is used in Sections
11(n)(4)(I)(iv) and 13(e)(i)(D) of the FDIA) of the Seller.
(xv) To such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments to which the Seller is a party that are required to be filed
as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto.
(xvi) The Trust will not be classified as an association
taxable as a corporation for federal income tax purposes and, instead,
the Trust will be treated either as a grantor trust under subpart E,
part I of subchapter J of the Internal Revenue Code of 1986, as amended
(the "Code") or as a partnership under subchapter K of the Code and,
except with respect to amounts received with respect to the Receivables
which are payable by the Trust to the Seller or to the Collateral Agent
for deposit in the Reserve Fund and certain amounts payable by the Trust
to the Servicer, each Certificateholder will be treated as the owner of
an undivided pro rata interest in the income and corpus attributable to
the Trust.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the States of Ohio, New York and Texas.
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(f) The Underwriters shall have received the opinion of Xxxxxx,
Xxxxxxx & Xxxxxxx L.L.P., special counsel to the Seller, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, regarding the creation, attachment and perfection of a first
priority security interest in the Receivables, the Financed Vehicles in the
State of Ohio and the property held in the Reserve Fund in favor of the Trustee
on behalf of the Certificateholders. Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering such opinion,
such counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York, Texas and Ohio.
(g) The Underwriters shall have received the opinion of in-house
counsel to the Seller, or such other counsel acceptable to the Underwriters and
counsel for the Underwriters, dated the Closing Date, satisfactory in form and
substance to the Underwriters and counsel for the Underwriters to the effect
that: neither the execution and delivery by the Seller of the Pooling and
Servicing Agreement nor the consummation by the Seller of the transactions
contemplated therein nor the fulfillment of the terms thereof by the Seller will
(a) violate the articles of association or by-laws of the Seller, (b) result in
a breach, violation or acceleration of, or constitute a default under, any term
or provision of any material indenture or other material agreement or instrument
of which such counsel has knowledge after due inquiry to which the Seller is a
party or by which it is bound or (c) result in a violation of or contravene the
terms of any Federal or Texas statute or, to such counsel's knowledge, any order
or regulation applicable to the Seller of any Federal or Texas court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Seller.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of Texas.
(h) The Underwriters shall have received the opinion of Xxxxxx,
Xxxxxxx & Xxxxxxx L.L.P. counsel to the Seller, or such other counsel acceptable
to the Underwriters and counsel for the Underwriters, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Receivables are chattel paper as defined in the UCC as
in effect in the State of Texas.
(ii) To the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Texas (the "Texas UCC") is applicable
(without regard to conflicts of laws principles), if a court concludes
that the transfer of the Receivables from the Seller to the Trustee for
the benefit of the Certificateholders is a sale, the interest of the
Trustee in the Receivables, the interest of the Trustee in the Seller's
security interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing will be perfected upon the filing
of the UCC-1 financing statements with such filing
-12-
offices as such counsel deems necessary or appropriate (the "Filing
Offices") and will constitute a first priority perfected interest
therein. If a court concludes that such transfer is not a sale, assuming
the Pooling and Servicing Agreement constitutes a grant by the Seller to
the Trustee of a valid security interest in the Receivables, the
security interest of the Trustee in the Receivables and the interest of
the Trustee in the Seller's security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the foregoing will
be perfected upon the filing of the UCC-1 financing statements with the
Filing Offices and will constitute a first priority perfected security
interest therein and in the proceeds thereof, and such security
interests will be prior to any other security interest that is perfected
solely by the filing of financing statements under the Texas UCC,
excluding purchase money security interests under ss. 9-312(4) of the
UCC and temporarily perfected security interests in proceeds under ss.
9-306(3) of the Texas UCC. Except for the subsequent filing of
continuation statements within the prescribed time period, no filing or
other action, other than the filing of the UCC-1 financing statements
with the Filing Offices, is necessary to perfect and maintain the
interest or the security interest of the Trustee on behalf of the Trust
in the Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the foregoing
against third parties; provided, however, that such Receivables could be
subject to such claims of other persons who take or who have taken
possession of the Receivables for new value in the ordinary course of
such person's business and without knowledge of the transfer to the
Trustee.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of Texas.
(i) The Underwriters shall have received an opinion addressed to
it of Stroock & Stroock & Xxxxx LLP, in its capacity as counsel to the
Underwriters, dated the Closing Date, with respect to the validity of the
Certificates and such other related matters as the Underwriters shall reasonably
require and the Seller shall have furnished or caused to be furnished to such
counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(j) The Underwriters shall have received an opinion of counsel to
the Trustee, dated the Closing Date and satisfactory in form and substance to
the Underwriters and counsel for the Underwriters, to the effect that:
(i) The Trustee is a banking corporation validly existing and
in good standing under the laws of the State of New York.
(ii) The Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of the Pooling and Servicing
Agreement.
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(iii) The Pooling and Servicing Agreement has been duly
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its respective terms, except that such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, or other similar laws applicable to banking corporations
affecting the enforcement of creditors' rights generally, and by general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
(iv) The Certificates have been duly authenticated by the
Trustee in accordance with the terms of the Pooling and Servicing
Agreement.
(k) The Underwriters shall have received copies of each opinion
of counsel delivered to either rating agency, together with a letter addressed
to the Underwriters, dated the Closing Date, to the effect that each Underwriter
may rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(l) The Underwriters shall have received a certificate dated the
Closing Date of Bank One, Texas, N.A., executed by any two of the Chairman of
the Board, the President, any Executive Vice President, Senior Vice President or
Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the
principal financial officer or the principal accounting officer of Bank One,
Texas, N.A., in which such officer shall state that, to the best of its
knowledge after reasonable investigation, (i) the representations and warranties
of Bank One, Texas, N.A., contained in the Underwriting Agreement and the
Pooling and Servicing Agreement are true and correct in all material respects,
(ii) that Bank One, Texas, N.A., has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under such agreements at
or prior to the Closing Date, (iii) 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 contemplated by the Commission, and
(iv) since December 31, 1996, except as may be disclosed in the Prospectus or in
such certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of Bank One, Texas, N.A., has occurred.
(m) The Underwriters shall have received evidence satisfactory to
it that, on or before the Closing Date, UCC-1 financing statements have been or
are being filed in the appropriate filing offices reflecting the transfer of the
interest in the Receivables and the proceeds thereof to the Trustee on behalf of
the Trust.
(n) The Class A Certificates shall be rated "AAA" or its
equivalent, and the Class B Certificates shall be rated at least "A" or its
equivalent, in each case by Xxxxx'x, S&P and Fitch and none shall have placed
either the Class A Certificates or the Class B Certificates under surveillance
or review with possible negative implications.
(o) The issuance of the Certificates shall not have resulted in a
reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued or originated by the Seller.
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The Seller will provide or cause to be provided to the
Underwriters such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Underwriters shall reasonably
request.
7. Indemnification and Contribution. (a) The Seller will
indemnify and hold each Underwriter harmless against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto or any related preliminary prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Seller will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with the
Underwriters' Information provided, further, that the Seller shall not be liable
to any Underwriter to the extent that any such loss, claim, damage or liability
of such Underwriter arises as a result of a misstatement or omission or alleged
misstatement or omission in any related preliminary prospectus that was
corrected in the Prospectus (and copies of which Prospectus were furnished to
the Underwriters) and such Underwriter, if required by law, failed to give or
send to the purchaser, at or prior to the written confirmation of sale, a copy
of the Prospectus.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Seller against any losses, claims, damages or
liabilities to which the Seller may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto or any related preliminary
prospectus, or arise out of or are based upon the omission or the 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 by such Underwriter
through the Underwriters specifically for use therein, and will reimburse the
Seller for any legal or other expenses reasonably incurred by the Seller in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
-15-
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof and approval by the indemnified party of the
counsel appointed by the indemnifying party, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that (i) if the indemnified party or parties reasonably determine that there may
be a conflict between the positions of the indemnifying party or parties and of
the indemnified party or parties in conducting the defense of such action, suit,
investigation, inquiry or proceeding or that there may be legal defenses
available to such indemnified party or parties different from or in addition to
those available to the indemnifying party or parties, then counsel for the
indemnified party or parties shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the indemnified party or parties, except that in no event shall the
indemnifying party be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such action, suit,
investigation, inquiry or proceeding and (ii) in any event, the indemnified
party or parties shall be entitled, at its or their own expense to have counsel
chosen by such indemnified party or parties participate in, but not conduct, the
defense. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability from any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnifying party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Seller on the one hand and the Underwriters on the other from the offering
of the Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Seller on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Seller bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault
-16-
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Seller or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by the related Underwriter exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Seller, to each officer of the Seller
who has signed the Registration Statement and to each person, if any, who
controls the Seller within the meaning of the Act.
8. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the Underwriters set forth in or made pursuant to
the Underwriting Agreement or contained in certificates of officers of the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, the Seller or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriters is not consummated, the Seller
shall remain responsible for the expenses to be paid or reimbursed by the Seller
pursuant to Section 5(m) and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason the
purchase of the Certificates by the Underwriters is not consummated (other than
because of a failure to satisfy the conditions set forth in items (iii), (v) and
(vi) of Section 6(d)), the Seller will reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Certificates.
9. Failure to Purchase the Certificates. If any Underwriter or
Underwriters default in its obligations to purchase its portion of Class A
and/or Class B Certificates hereunder, and the aggregate principal amount that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of the Certificates, the
Underwriters may make arrangements satisfactory to the Seller for the purchase
-17-
of such Certificates by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the nondefaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Certificates that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Certificates with respect
to such default or defaults exceeds 10% of the total principal amount of the
Certificates, and arrangements satisfactory to the Underwriters are not made by
the Seller for the purchase of such Certificates by other persons within 48
hours after such default, the Underwriting Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Seller, except as
provided in Section 8. As used in the Underwriting Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter or Underwriters
from liability for its default.
10. Notices. Any written request, demand, authorization,
direction, notice, consent or waiver shall be personally delivered or mailed
certified mail, return receipt requested (or in the form of telex or facsimile
notice, followed by written notice as aforesaid) and shall be deemed to have
been duly given upon receipt, if sent to the Underwriters, when delivered to
Banc One Capital Corporation, 000 Xxxx Xxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, XX
00000-0340, Attention: Asset Backed Securities Department (fax # (614)
000-0000), and Salomon Brothers Inc, Seven World Trade Center, New York, New
York 10048, (fax # (000) 000-0000), and if sent to the Seller, when delivered to
Bank One, Texas, N.A., 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Chief
Financial Officer (fax # (000) 000-0000).
11. Successors. The Underwriting Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligations hereunder.
12. Counterparts. The Underwriting Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
13. Applicable Law. The Underwriting Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York without
regard to the choice of law provisions thereof.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Seller and the
Underwriters in accordance with its terms.
Very truly yours,
BANK ONE, TEXAS, N.A.
By: ______________________________
Name:
Title
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
BANC ONE CAPITAL CORPORATION
By: ________________________________
Name:
Title:
SALOMON BROTHERS INC
By: ________________________________
Name:
Title:
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SCHEDULE I
INITIAL PRINCIPAL
AMOUNT OF
UNDERWRITER CLASS CERTIFICATES
----------- ----- ------------
Banc One Capital A $__________
Corporation
Salomon Brothers Inc A $__________
Banc One Capital B $__________
Corporation
Salomon Brothers Inc B $__________
