[Draft 6/16/97]
BANC ONE AUTO GRANTOR TRUST 1997-A
$_____________ CLASS A ___% ASSET BACKED CERTIFICATES
$_____________ CLASS B ___% ASSET BACKED CERTIFICATES
BANK ONE, TEXAS, N.A.
(SELLER)
UNDERWRITING AGREEMENT
June __, 1997
BANC ONE CAPITAL CORPORATION 000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000-0340
UBS SECURITIES LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. Bank One, Texas, N.A. (the
"Seller"), proposes to cause BANC ONE AUTO GRANTOR TRUST 1997-A
(the "Trust") to issue $____________principal amount of its
Class A ___% Asset Backed Certificates (the "Class A
Certificates") and $____________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 May 31, 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 May 31, 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 and the
related Subservicer agreed to perform as servicer of the
related Receivables pursuant to the applicable Sale and
Servicing Agreement (each, a "Sale and Servicing Agreement")
dated as of July 1, 1996.
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.
333-25951), 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."
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(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 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.
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(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.
(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 three months ended March 31, 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
March 31, 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
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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").
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
June __, 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).
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(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 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.
(e) 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
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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.
(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,
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(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:
(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
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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
(including 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.
(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, the
Pooling and Servicing Agreement and the Sale and
Servicing Agreements and the Pooling and Servicing
Agreement and the Sale and Servicing Agreements are
the legal, valid and binding obligations of the
Seller, enforceable against the Seller in accordance
with their 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) Bank One, N.A. has duly
authorized, executed and delivered the
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Sale and Servicing Agreements and the Sale and
Servicing Agreements are the legal, valid and binding
obligations of Bank One, N.A., enforceable against
Bank One, N.A. in accordance with their 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 FDIC and
subject to general principles of equity (whether
applied in a proceeding at law or in equity).
(v) Assuming Bank One, Wisconsin has
duly authorized, executed and delivered the Sale and
Servicing Agreements to which it is a party, the Sale
and Servicing Agreements to which Bank One, Wisconsin
is a party are the legal, valid and binding
obligations of Bank One, Wisconsin, enforceable
against Bank One, Wisconsin in accordance with their
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 FDIC and
subject to general principles of equity (whether
applied in a proceeding at law or in equity).
(vi) 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.
(vii) 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
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.
(viii) 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.
(ix) To such counsel's knowledge,
there are no legal or governmental
10
proceedings pending or threatened against the Seller
that are required to be disclosed in the Registration
Statement, other than those disclosed therein.
(x) 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.
(xi) 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.
(xii) 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.
(xiii) 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.
(xiv) 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.
(xv) 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.
(xvi) The Pooling and Servicing
Agreement meets each of the
11
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)(4) of the FDIA) of the Seller.
(xvii) 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.
(xviii) 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.
(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:
12
(i) 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.
(ii) Such counsel has been advised of
the Seller's standard operating procedures relating to
the Seller's acquisition of a perfected first priority
security interest in the vehicles financed by the
Seller pursuant to the retail automobile, van or light
duty truck installment sale contracts in the ordinary
course of the Seller's business. Assuming that the
Seller's standard procedures are followed with respect
to the perfection of security interests in the
Financed Vehicles (such counsel having no reason to
believe that the Seller has not or will not continue
to follow its standard procedures in connection with
the perfection of security interests in the Financed
Vehicles), the Seller has acquired or will acquire a
perfected first priority security interest in the
Financed Vehicles.
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 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
13
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 section 9-312(4) of the UCC and temporarily
perfected security interests in proceeds under section
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.
(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
14
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
and S&P and neither corporation 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.
15
(p) The Underwriters shall have received an
opinion of counsel to Bank One, Wisconsin, dated the Closing
Date and satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, to the effect that Bank One,
Wisconsin has duly authorized, executed and delivered the Sale
and Servicing Agreements to which it is a party.
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.
16
(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
17
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 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
18
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 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), UBS
Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Asset Backed Securities Department (fax # (000) 000-0000) and
Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, 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.
19
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:
UBS SECURITIES LLC
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
---------------------------------
Name:
Title:
20
SCHEDULE I
UNDERWRITER INITIAL PRINCIPAL
CERTIFICATES CLASS AMOUNT OF
------------ ----- -----------------
Banc One Capital Corporation A $___________
UBS Securities LLC A $___________
Chase Securities Inc. A $__________
Banc One Capital Corporation B $___________
UBS Securities LLC B $___________
Chase Securities Inc. B $___________
