Exhibit 1.1
EXECUTION COPY
Banc One HELOC Trust 1999-1
$500,000,000
HELOC ASSET-BACKED CERTIFICATES, Series 1999-1
Banc One ABS Corporation
(DEPOSITOR)
UNDERWRITING AGREEMENT
June 16, 1999
BANC ONE CAPITAL MARKETS, INC.
as Representative (the
"Representative") of the
Several Underwriters named herein
One First National Plaza, Suite IL1-0596
Chicago, IL 60670
Ladies and Gentlemen:
1. Introductory. Banc One ABS Corporation, an Ohio corporation (the
"Depositor") and a wholly-owned subsidiary of BANK ONE CORPORATION, proposes to
cause Banc One HELOC Trust 1999-1 (the "Trust") to issue and sell $500,000,000
principal amount of its HELOC Asset-Backed Certificates, Series 1999-1 (the
"Certificates") to the several underwriters named in Schedule I attached hereto
(the "Underwriters"), for whom you (the "Representative") are acting as
representative. The assets of the Trust include, among other things, a pool of
adjustable rate home equity revolving credit line loans made or to be made in
the future (the "Mortgage Loans"), under certain home equity revolving credit
line loan agreements (the "Credit Line Agreements") and secured by either first
or second deeds of trust or mortgages on primarily one- to four-family
residential properties (the "Mortgaged Properties"); the collections in respect
of the Mortgage Loans received after May 31, 1999 (the "Cut-off Date"); property
that secured a Mortgage Loan which has been acquired by foreclosure or deed in
lieu of foreclosure; an irrevocable and unconditional certificate guaranty
insurance policy (the "Policy") to be issued by MBIA Insurance Corporation (the
"Insurer"); an assignment of the Depositor's rights under the Mortgage Loan
Purchase Agreement (as defined herein); rights under certain hazard insurance
policies covering the Mortgaged Properties; and certain other property.
The Trust will be formed, and the Certificates will be issued, pursuant to
a Pooling and Servicing Agreement to be dated as of May 31, 1999 (the "Pooling
and Servicing Agreement") among the Depositor, Bank One, N.A., a national
banking association, as servicer (the "Servicer") and The Bank of New York, as
trustee (the "Trustee"). The Mortgage Loans and certain other assets of the
Trust Fund will be sold by each of Bank One, N.A., Bank One, Arizona, N.A., Bank
One, Wisconsin, Bank One, Indiana, N.A., Bank One, Illinois, N.A., Bank One,
Kentucky, N.A., Bank One, Colorado, N.A., and Bank One, Utah, N.A. (each, a
"Seller" and together the "Sellers") to the Depositor pursuant to the Mortgage
Loan Purchase Agreement to be dated the Closing Date (the "Mortgage Loan
Purchase Agreement") among the Depositor and the Sellers, and by the Depositor
to the Trust pursuant to the Pooling and Servicing Agreement.
This Agreement, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreement, the letter agreement (the "Letter Agreement") attached as
Exhibit A hereto and each agreement relating to the Certificates, the Trust or
the transactions contemplated thereby to which the Depositor and the Insurer are
parties (the "Insurance Agreements") are collectively referred to herein as the
"Basic Documents."
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 Depositor. (a) The Depositor
represents and warrants to and agrees with the Underwriters that:
(i) The Depositor has filed with the Securities and Exchange
Commission (the "Commission"), a registration statement (No. 333-59845) on
Form S-3, including a prospectus, relating to the Certificates, which has
become effective. Such registration statement, as amended as of the date of
this Agreement, is hereinafter referred to as the "Registration Statement,"
and the prospectus included in such Registration Statement, as supplemented
to reflect the terms of the Certificates as first filed with the Commission
after the date of this Agreement pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the
"Act"), including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus." A "preliminary prospectus"
means any form of prospectus, including any prospectus supplement, relating
to the Certificates used prior to the date of this Agreement that is
subject to completion.
(ii) On September 11, 1998, the effective date of the Registration
Statement, such Registration Statement conformed in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of this Agreement the Registration
Statement conforms,
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and at the time of the filing of the Prospectus in accordance with 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, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except
that the foregoing does not apply to statements in or omissions from any of
such documents based upon (i) written information furnished to the
Depositor by any Underwriter through the Representative specifically for
use therein, it being understood that the only such information consists of
the Underwriters' Information (as defined in Section 2(b)) or (ii) the
Derived Information (as defined in Section 7 below) contained in the
Current Report (as defined in Section 5(n) below) or in any amendment
thereof or supplement thereto, incorporated by reference in such
Registration Statement or such Prospectus (or any amendment thereof or
supplement thereto). The Depositor acknowledges that any information
furnished by any of the Underwriters specifically for use in the
Registration Statement, any preliminary prospectus or the Prospectus is the
Underwriters' Information (as defined in Section 2(b) below).
(iii) The Certificates meet the requirements for use of Form S-3 under
the Act.
(iv) This Agreement has been duly authorized, executed and delivered
by the Depositor. The execution, delivery and performance of this Agreement
and each of the other Basic Documents to which it is a party 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 Depositor is a party or by which the Depositor is
bound or to which any of the properties of the Depositor is subject which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Depositor has full corporate power
and authority to cause the Trust to (a) authorize the Trustee to execute
and deliver the Certificates to the Seller and (b) sell the Certificates to
the Underwriters, all as contemplated by this Agreement.
(v) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled
to receive from or on behalf of the Depositor any brokerage or finder's fee
or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(vi) All material 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.
(vii) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission,
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complied and will comply in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations of the Commission thereunder.
(viii) As of the Closing Date (as defined below), the representations
and warranties of (a) the Depositor herein shall be true and correct in all
material respects and (b) the Depositor, the Sellers and the Servicer in
the Basic Documents to which each is a party will be true and correct in
all material respects and each such representation and warranty is so
incorporated herein by reference.
(ix) The Certificates, when duly and validly authorized by the
Depositor, and, when executed and authenticated as specified in the Pooling
and Servicing Agreement, and delivered and paid for pursuant hereto will be
validly issued and outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement.
(x) As of the Closing Date, the Mortgage Loans and related property
will have been duly and validly assigned to the Trustee in accordance with
the Basic Documents; and when such assignment is effected, a duly and
validly perfected transfer of all such Mortgage Loans will have occurred,
subject to no prior lien, mortgage, security interest, pledge, charge or
other encumbrance created by the Depositor or the Sellers.
(xi) Neither the transfer from the Depositor to the Trustee, acting on
behalf of the Trust, of the Mortgage Loans and other Trust Assets conveyed
by it to 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 Depositor or any material
indenture or other material agreement or instrument to which the Depositor
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 Depositor of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Depositor or will result in the creation of any lien upon any material
property or assets of the Depositor.
(xii) The Depositor has caused the Servicer to deliver to the
Underwriters or to counsel for the Underwriters complete and correct copies
of publicly available portions of the Consolidated Reports of Condition and
Income of the Servicer for the close of business March 31, 1999, as
submitted to the Board of 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 Servicer since March 31, 1999.
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(xiii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance by the Depositor of the Basic
Documents and the execution, delivery and sale of the Certificates shall
have been paid or will be paid by or on behalf of the Depositor at or prior
to the Closing Date to the extent then due.
(xiv) Reserved.
(b) The Depositor hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only information furnished to the Depositor 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 paragraph immediately succeeding the table on, and the
second to last paragraph on the cover of, statements with respect to
market-making on page S-3 of, and the statements under the caption
"Underwriting" in, 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 Depositor agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Depositor, the entire principal amount of the Certificates set forth
opposite the name of such Underwriter in Schedule I hereto at a purchase price
set forth in the Prospectus. The Investor Certificate Rate for each Interest
Period shall equal one-month LIBOR for such Interest Period (determined in
accordance with the Pooling and Servicing Agreement) plus 0.26% per annum,
subject to the net funds cap set forth in the Pooling and Servicing Agreement.
The Depositor will deliver the Certificates to the Representative, for the
account of the Underwriters, against payment of the purchase price to or upon
the order of the Depositor by wire transfer or check in Federal (same day)
Funds, at the office of Orrick, Herrington & Sutcliffe, LLP, 666 Fifth Avenue,
New York, New York 10103 at 10:00 a.m., New York time on June 26, 1999, or at
such other time not later than seven full business days thereafter as the
Representative and the Depositor 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 Certificates registered in the name of Cede & Co., as
the nominee of The Depository Trust Company ("DTC") or one of the relevant
depositories. The interests of beneficial owners of the Certificates will be
represented by book entries on the records of, as directed by the
Representative, DTC in the United States or Cedelbank or the Euroclear System in
Europe, and participating members thereof. Definitive Certificates will be
available only under the limited circumstances specified in the Pooling and
Servicing Agreement.
4. Offering by the Underwriters. It is understood that, the several
Underwriters propose to offer the Certificates for sale to the public (which may
include selected dealers) on the terms set forth in the Prospectus, including
without limitation the underwriting discount applicable to the sale of the
Certificates to noninstitutional investors.
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5. Covenants of the Depositor. The Depositor covenants and agrees with the
several Underwriters that:
(a) The Depositor will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of Rule
424(b) not later than the second business day following the execution and
delivery of this Agreement. The Depositor will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Depositor will advise the Representative promptly of any proposal
(on or prior to any date within 90 days of the date of the Prospectus) 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 Representative, which consent
shall not be unreasonably withheld or delayed; the Depositor will also advise
the Representative promptly of any request by the Commission (on or prior to any
date within 90 days of the date of the Prospectus) for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information; and the Depositor will also advise the Representative promptly of
the effectiveness of the Registration Statement (if the effective time is
subsequent to the execution of this 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 Depositor 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 Depositor 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 Representative to, nor the delivery by
the Representative of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) The Depositor will timely prepare and file all periodic reports
required to be filed pursuant to Section 15(d) of the Exchange Act as
interpreted by the Commission through certain No-Action Letters, on behalf of
the Trust, with the Commission until no longer required to do so as permitted by
Section 15(d) of the Exchange Act.
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(e) The Depositor will furnish to the Representative and its counsel copies
of the Registration Statement (including all exhibits), each related preliminary
prospectus supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Representative reasonably requests.
(f) The Depositor 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 Representative designates and will continue such
qualifications in effect so long as required for the distribution; provided,
however, that in no event shall the Depositor 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 this 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 Depositor
will deliver to the Representative, if requested, 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 Depositor will
furnish to the Representative (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 Exchange Act,
or any order of the Commission thereunder and (ii) from time to time, any other
information concerning the Depositor as the Representative may reasonably
request only insofar as such information reasonably relates to the Registration
Statement or the transactions contemplated by the Basic Documents.
(i) On or before the Closing Date, the Depositor shall and shall cause each
Seller to mark each of its respective books and records (including any computer
records) relating to the Mortgage Loans to show the absolute ownership by the
Trustee on behalf of the Trust of the Mortgage Loans, and from and after the
Closing Date none of the Depositor, the Sellers or the Servicer, shall take any
action inconsistent with the ownership by the Trustee on behalf of the Trust of
such Mortgage Loans, 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 the
Certificates are conditional upon the furnishing of documents or the taking of
any other actions by the Depositor, on or prior to the Closing Date, the
Depositor shall furnish such documents and take any such other actions. A copy
of any such document shall be provided to the Representative at the time it is
delivered to the rating agencies.
(k) For the period beginning on the date of this Agreement and ending on
the Closing Date, neither the Depositor nor any Affiliate or trust originated,
directly or indirectly, by
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the Depositor or any Affiliate (or any trust, partnership or other entity
sponsored by the Depositor or any Affiliate or in which the Depositor or any
Affiliate is a partner or a stockholder) will, without the prior written consent
of the Representative, offer to issue or issue notes collateralized by, or
certificates (other than the Certificates) evidencing an ownership interest in,
Mortgage Loans; provided, however, that except as otherwise provided by the
Basic Documents, this shall not be construed to prevent (i) the sale of Mortgage
Loans by any Affiliate of the Depositor to any person or (ii) any sales or
grants of participations in and to Mortgage Loans by one or more Affiliates of
the Depositor to one or more other Affiliates of the Depositor.
(l) The Depositor 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 Depositor will pay or cause to be paid all costs and expenses
incident to the performance of its obligations under this Agreement, including
but not limited to (i) the printing and filing of the documents (including the
Registration Statement, preliminary prospectuses and Prospectus), (ii) the
preparation, issuance and delivery of the Certificates to the Representative,
(iii) the fees and disbursements of the Depositor's counsel and accountants,
(iv) the qualification of the Certificates under securities laws in accordance
with the provisions of Section 5(f), including filing fees and the fees and
disbursements of counsel for the Representative 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 of Orrick, Herrington & Sutcliffe, LLP.
(n) To the extent that any Underwriter (i) has provided Collateral Term
Sheets to the Depositor that such Underwriter has provided to a prospective
investor, the Depositor has filed such Collateral Term Sheets (as defined in
Section 7 below) as an Exhibit to a Current Report on Form 8-K within two
business days of its receipt thereof, (ii) has provided Structural Term Sheets
or Computational Materials to the Depositor that such Underwriter has provided
to a prospective investor, the Depositor will file or cause to be filed with the
Commission a report on a Current Report on Form 8-K containing such Structural
Term Sheets and Computational Materials, as soon as reasonably practicable after
the date of this Agreement, but in any event, not later than the date on which
the Prospectus is filed with the Commission pursuant to Rule 424 under the Act,
or (iii) has provided Series Term Sheets (as defined in Section 7 below) to the
Depositor that such Underwriter has provided to a prospective investor, the
Depositor has filed such Series Term Sheets as an Exhibit to a Current Report on
Form 8-K within two business days of its receipt thereof. The Current Reports on
Form 8-K referred to in the preceding sentence are collectively referred to
herein as the "Current Report."
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(o) On or prior to the date of issuance of the Certificates, the Depositor
will obtain one or more certificate insurance policies (each, a "Policy") issued
by the Insurer for the benefit of the holders of the Certificates.
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 contained or incorporated herein, to the
accuracy of the written statements of officers of the Depositor, made pursuant
to the provisions of this Section, to the performance by the Depositor, of its
obligations hereunder and to the following additional conditions precedent:
(a) 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 Depositor or the
Representative, shall be contemplated by the Commission.
(b) The Representative shall have received a letter, on or prior to the
date of this Agreement of Arthur Andersen LLP 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 Representative has
previously agreed and otherwise in form and substance reasonably satisfactory to
the Representative and counsel for the Underwriters.
(c) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change materially and adversely affecting (A) the property of the Trust taken as
a whole or (B) the business or properties of the Depositor, the Sellers, the
Servicer or BANK ONE CORPORATION which, in the judgment of the Representative 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 BANK 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 BANK 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 the
Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency
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makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Certificates.
(d) The Representative shall have received an opinion of counsel to the
Depositor acceptable to the Representative and counsel for the Underwriters,
dated the Closing Date, satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio, 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
Basic Documents to which it is a party.
(ii) The Depositor has duly authorized, executed and delivered the
written order to the Trustee to execute and deliver the Certificates.
(iii) The Depositor has duly authorized, executed, and delivered the
Basic Documents to which it is a party.
(iv) Neither the transfer of the property of the Trust by the
Depositor to the Trustee on behalf of the Trust, nor the execution and
delivery by the Depositor of the Basic Documents to which it is a party,
nor the consummation by the Depositor of the transactions contemplated by
the Basic Documents to which it is a party nor the performance by the
Depositor of its obligations thereunder will (i) violate the articles of
incorporation or the by-laws, each as amended, of the Depositor or (ii)
violate the applicable provisions of statutory law or regulation.
(v) To such counsel's knowledge, there are no actions, proceedings or
investigations pending against the Depositor or threatened against the
Depositor before any court, administrative agency, or tribunal (i)
asserting the invalidity of the Trust or any of the Basic Documents, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by the Basic Documents or the execution and delivery thereof, or (iii) that
could reasonably be expected to materially and adversely affect the
enforceability of the Basic Documents against the Depositor or the ability
of the Depositor 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
Depositor for the consummation of the transactions contemplated in the
Basic Documents, 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.
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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 are admitted to practice only in the State of Ohio and that they are
not admitted to the Bar in any other 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 Ohio.
(e) The Representative shall have received the opinion of Orrick,
Herrington & Sutcliffe, special counsel to the Sellers and the Servicer, or such
other counsel acceptable to the Representative and counsel for the Underwriters,
dated the Closing Date, satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) 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).
(ii) The Basic Documents are legal, valid, and binding obligations of
the Depositor, enforceable against the Depositor in accordance with their
respective 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 and subject to general principles of equity (whether applied in a
proceeding at law or in equity).
(iii) The Depositor is not an "investment company" as defined in the
Investment Company Act or a company "controlled by" an "investment company"
within the meaning of the Investment Company Act, and will not as a result
of the offer and sale of the Certificates as contemplated in the Prospectus
and the Underwriting Agreement be required to register under the Investment
Company Act.
(iv) 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.
(v) The statements in the Prospectus under the headings "Summary--Tax
Status," " Summary--ERISA Considerations," "Certain Federal Income Tax
Consequences," "State Taxes," "ERISA Considerations," "Summary of
Terms--Federal
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Income Tax Considerations," "Federal Income Tax Considerations," "State Tax
Considerations," "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.
(vi) Such counsel shall state that they have participated in the
preparation of the Registration Statement and that nothing has come to
their attention to lead them to believe that the Registration Statement, as
of the Effective Time, contained an untrue statement of a material fact or
omitted to state a 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, 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
contained in the Registration Statement or the Prospectus.
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 are admitted to practice only in the State of New York and that they
are not admitted to the Bar in any other State, that they express no opinion as
to the laws of any jurisdiction other than the federal law of the United States
of America, the General Corporate Law of the State of Delaware and the laws of
the State of New York.
(f) The Representative shall have received the opinion of counsel to the
Sellers and the Servicer acceptable to the Representative and counsel for the
Underwriters, dated the Closing Date, satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) Each of the Sellers and the Servicer has been duly organized and
is validly existing as a national banking association (except in the case
of Bank One, Wisconsin which is a Wisconsin state bank) in good standing
under the laws of the United States of America (or in the case of Bank One,
Wisconsin the laws of the state of Wisconsin), with corporate power to own
its properties, to conduct its business as now conducted and as proposed to
be conducted by it and to enter into and perform its obligations under the
Basic Documents to which it is a party and the Servicer has the power,
authority and legal right to service the Mortgage Loans.
(ii) The Servicer has obtained all necessary licenses and approvals in
each jurisdiction in which the failure to obtain such licenses or approvals
would materially and
-12-
adversely affect the performance by the Servicer of its obligations under,
or the validity or enforceability of, any Basic Documents to which it is a
party.
(iii) Each of the Sellers and the Servicer has duly authorized,
executed and delivered the Basic Documents to which it is a party, and the
Basic Documents to which it is a party are the legal, valid and binding
obligations of each of the Sellers and the Servicer, as applicable,
enforceable against each of the Sellers and the Servicer, as applicable, in
accordance with the respective terms thereof, subject as to enforceability,
to the effects of applicable insolvency, receivership, conservatorship and
other similar laws affecting the rights of creditors generally or the
rights of creditors of institutions the deposits in 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 execution and delivery by any of the Sellers or the
Servicer of any Basic Documents to which it is a party nor the consummation
by any of the Sellers or the Servicer of the transactions contemplated
therein nor the fulfillment of the terms thereof by any of the Sellers or
the Servicer will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of
the articles of association or by-laws of any of the Sellers or the
Servicer or result in a violation of or contravene the terms of any
statute, order or regulation applicable to any of the Sellers or the
Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it.
(v) To such counsel's knowledge, there are no actions, proceedings or
investigations pending or threatened against any of the Sellers or the
Servicer before or by any governmental authority that could reasonably be
expected to materially and adversely affect the performance by any of the
Sellers or the Servicer of its obligations under, or the validity or
enforceability of, any Basic Documents to which any of the Sellers or the
Servicer is a party.
(vi) Neither the execution and delivery by any of the Sellers or the
Servicer nor the consummation by any of the Sellers or the Servicer of the
transactions contemplated therein nor the fulfillment of the terms thereof
by any of the Sellers or the Servicer will result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of
any material indenture or other agreement or instrument of which such
counsel has knowledge after due inquiry to which any of the Sellers or the
Servicer is a party or by which it is bound.
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
-13-
any jurisdiction other than the federal law of the United States of America and
the laws of the States of Wisconsin and New York.
(g) The Representative shall have received an opinion addressed to it of
Stroock & Stroock & Lavan LLP, in its capacity as special counsel to the
Underwriters, dated the Closing Date, with respect to the validity of the
Certificates and such other related matters as the Representative shall
reasonably require and the Depositor 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.
(h) The Policy shall have been duly authorized, executed, issued and
delivered by the Insurer, all fees due and payable to the Insurer as of the
Closing Date shall have been paid in full at or prior to the Closing Date, and
the Policy shall conform in all material respects to the description thereof in
the Registration Statement and the Prospectus (and any supplements thereto).
(i) The Representative shall have received the opinion of Shaw Pittman,
counsel to the Insurer, or such other counsel acceptable to the Representative
and counsel to the Underwriters, dated the Closing Date, satisfactory in form
and substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) The Insurer is a corporation validly existing under the laws of
the jurisdiction of its incorporation, is licensed to transact the business
of financial guarantee insurance under the laws of the State of New York,
and has the corporate power to take all action required of it under the
Policy and, the Insurance Agreements.
(ii) Except as have already been obtained, no authorization, consent,
approval, license, formal exemption, or declaration from, nor any
registration or filing with, any court or governmental agency or body of
the United states of America or the State of New York, which if not
obtained would affect or impair the validity or enforceability of the
Policy, the Insurance Agreements against the Insurer, is required in
connection with the execution and delivery by the Insurer of the Policy,
the Insurance Agreements or in connection with the Insurer's performance of
its obligations thereunder.
(iii) The Insurance Agreements and the Policy have been duly
authorized, executed and delivered by the Insurer, and constitute legal,
valid and binding obligations of the Insurer, enforceable against the
Insurer in accordance with their respective terms, except to the extent
that the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights as such laws would apply
in the event of the insolvency, liquidation or reorganization or other
similar occurrence with respect to the Insurer or the event of any
moratorium or similar occurrence affecting the Insurer.
-14-
(iv) The Policy is not required to be registered under the Act in
connection with the offer and sale of the Certificates in the manner
contemplated in the Prospectus.
Such opinions may be subject to such counsel's customary practices and
limitations relating to the scope of such counsel's participation in the
preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein.
(j) The Representative shall have received a certificate, dated the Closing
Date, of a Vice President or more senior officer of the Insurer stating that
such officer had no reason to believe that as of the Effective Date any of the
information contained in the Prospectus in (x) the paragraph titled "Certificate
Insurer" under the heading "Summary" or (y) under the heading "The Certificate
Insurer" includes any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(k) On or prior to the Closing Date, there has been no downgrading, nor
shall any notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change in rating, the direction of which has not
been indicated, in the rating accorded the Insurer's claims paying ability by
any "nationally recognized statistical rating organization" (as such term is
defined for purposes of the Exchange Act).
(l) The Representative shall have received from counsel an opinion or
opinions of counsel dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, to the effect
that, in such counsel's opinion, the characterization of the Certificates and
the Trust for Ohio franchise and income tax purposes will follow the
characterization of the Certificates and the Trust for federal income tax
purposes; provided, however, that if such opinion of counsel has previously been
obtained by the Depositor with respect to another series of certificates issued
as contemplated by the Registration Statement, no additional opinion shall be
required unless the Depositor, the Underwriters or their counsel has become
aware of any change in federal income tax law, Ohio state income or franchise
tax law or the interpretation thereof that would have the effect of changing the
conclusions of law expressed in such previous opinion.
(m) The Representative shall have received an opinion of counsel to the
Trustee acceptable to the Representative and counsel for the Underwriters, dated
the Closing Date, in form and in substance satisfactory to the Representative
and counsel for the Underwriters, to the effect that:
(i) The Certificates have been duly executed, authenticated and
delivered by the Trustee in accordance with the terms of the Pooling &
Servicing Agreement.
-15-
(ii) The Trustee is a banking corporation validly existing under the
laws of the state of New York and has the full power and authority to enter
into, and to take all action required of it, under the Pooling and
Servicing Agreement.
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and, assuming due authorization,
execution and delivery of such document by all other parties thereto,
constitutes the legal, valid and binding agreement of the Trustee, except
as enforceability thereof may be limited by bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors against the Trustee generally, as such
laws would apply in the event of bankruptcy, insolvency, liquidation,
receivership or reorganization or any moratorium or similar occurrence
affecting the Trustee, and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or law).
(iv) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against the Trustee
under the Pooling and Servicing Agreement before any court, administrative
agency or other tribunal (A) asserting the invalidity of the Pooling and
Servicing Agreement or the Certificates, or (B) seeking to prevent the
issuance of the Certificates or consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or the Certificates, or
(C) that might materially or adversely affect the performance by the
Trustee of its obligations under, or the validity or enforceability of the
Pooling and Servicing Agreement and the Certificates.
(v) The execution and delivery of the Pooling and Servicing Agreement
by the Trustee and the performance by the Trustee of its terms do not
conflict with or result in a violation of (a) any law or regulation of the
United States of America or the State of New York governing the banking or
trust powers of the Trustee, or (b) the articles of association and by-laws
of the Trustee.
(vi) No approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State of
New York having jurisdiction over the banking or trust activities of the
Trustee is required for the Trustee in connection with the execution and
delivery of, performance under, or compliance with, the Pooling and
Servicing Agreement or the Certificates, except such as have been obtained,
taken or made.
(n) The Representative shall have received copies of each opinion
(including without limitation, opinions with respect to true sale, FDIA and
perfection in Mortgage Loans) of counsel delivered to either rating agency or
the Insurer, together with a letter addressed to the Representative, 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.
-16-
(o) The Underwriters shall have received certificates dated the Closing
Date of each of the Depositor, the Sellers, and the Servicer, executed by any
one 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 each of the Depositor, the Sellers, and the Servicer, in which such
officer of the Depositor, the Sellers, and the Servicer, as the case may be,
shall state that, (i) to the best of its knowledge after reasonable
investigation, the representations and warranties of the Depositor, the Sellers,
and the Servicer, as applicable, contained in the Basic Documents to which each
is a party, are true and correct in all material respects, (ii) that the
Depositor, the Sellers, or the Servicer, as the case may be, has complied with
all agreements and satisfied all conditions on its respective part to be
performed or satisfied under such agreements at or prior to the Closing Date,
(iii) in the case of the certificate from the Depositor only, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or to the best of its
knowledge, are contemplated by the Commission, and (iv) since March 31, 1999 no
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Depositor, the Sellers, or the Servicer, has occurred.
(p) 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 Mortgage Loans and the proceeds thereof from the Sellers to the Depositor
and from the Depositor to the Trustee on behalf of the Trust.
(q) The Certificates shall be rated at least "AAA" or its equivalent by
Moody's Investors Services, Inc. and Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., and neither corporation shall have
placed the Certificates under surveillance or review with possible negative
implications.
(r) 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 Depositor.
(s) The Representative shall have received, upon execution hereof, the duly
executed agreement of BANK ONE CORPORATION in the form attached as Exhibit A.
(t) The Depositor will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative shall reasonably
request.
7. Computational Materials. Each Underwriter represents, warrants,
covenants and agrees with the Depositor that:
-17-
(a) It either (A) has not provided any potential investor with a Collateral
Term Sheet (that is required to be filed with the Commission within two business
days of first use under the terms of the Public Securities Association Letter as
described below), or (B) has, substantially contemporaneously with its first
delivery of such Collateral Term Sheet to a potential investor, delivered such
Collateral Term Sheet (in hard copy and on computer disk) to the Depositor or
its counsel.
(b) It either (A) has not provided any potential investor with a Structural
Term Sheet, Series Term Sheets or Computational Materials, or (B) has promptly
provided any such Structural Term Sheet, Series Term Sheets or Computational
Materials (in hard copy and on computer disk) to the Depositor or its counsel.
(c) Each Collateral Term Sheet bears a legend indicating that the
information contained therein will be superseded by the description of the
collateral contained in the Prospectus Supplement and, except in the case of the
initial Collateral Term Sheet, that such information supersedes the information
in all prior Collateral Term Sheets.
(d) Each Structural Term Sheet, Series Term Sheet and all Computational
Materials bear a legend substantially as follows (or in such form as may be
agreed prior to the date of this Agreement):
"This information has been prepared in connection with the issuance of
securities representing interest in the above trust and based in part
on information provided by Banc One ABS Corporation or BANK ONE
Consumer Lending with respect to the expected characteristics of the
pool of home equity revolving credit line loans in which the related
securities will represent undivided beneficial interests. The actual
characteristics and performance of the home equity revolving credit
line loans will differ from the assumptions used in preparing these
materials, which are hypothetical in nature. Changes in the
assumptions may have a material impact on the information set forth in
these materials. No representation is made that any performance or
return indicated herein will be achieved. For example, it is very
unlikely that the loans will prepay at a constant rate or follow a
predictable pattern. The information may not be used or otherwise
disseminated in connection with the offer or sale of these or any
other securities, except in connection with the initial offer or sale
of these securities to you to the extent set forth below. NO
REPRESENTATION IS MADE AS TO THE APPROPRIATENESS, USEFULNESS, ACCURACY
OR COMPLETENESS OF THESE MATERIALS OR THE ASSUMPTIONS ON WHICH THEY
ARE BASED. Additional information is available upon request. These
materials do not constitute an offer to buy or sell or a solicitation
of an offer to buy or sell any security or instrument or to
participate in any particular trading strategy. ANY SUCH OFFER TO BUY
OR SELL ANY SECURITY WOULD BE MADE PURSUANT TO A DEFINITIVE PROSPECTUS
AND PROSPECTUS SUPPLEMENT PREPARED BY THE ISSUER WHICH WOULD CONTAIN
MATERIAL INFORMATION NOT CONTAINED IN THESE MATERIALS. SUCH PROSPECTUS
AND PROSPECTUS SUPPLEMENT WILL CONTAIN ALL MATERIAL INFORMATION IN
RESPECT OF ANY SUCH SECURITY OFFERED THEREBY AND ANY DECISION TO
INVEST IN SUCH SECURITIES SHOULD BE MADE SOLELY IN RELIANCE UPON SUCH
PROSPECTUS AND PROSPECTUS SUPPLEMENT. ANY CAPITALIZED TERMS USED BUT
NOT DEFINED HEREIN ARE TO BE READ IN CONJUNCTION WITH SUCH PROSPECTUS
AND PROSPECTUS
-18-
SUPPLEMENT. In the event of any such offering, these materials,
including any description of the loans contained herein, shall be
deemed superseded, amended and supplemented in their entirety by such
Prospectus and Prospectus Supplement. NOT FOR DISTRIBUTION TO PRIVATE
CUSTOMERS AS DEFINED BY THE U.K. SECURITIES AND FUTURES AUTHORITY."
(e) It (at its own expense) agrees to obtain and provide to the Depositor
one or more accountants' letters relating to the Collateral Term Sheets,
Structural Term Sheets, Series Term Sheets and Computational Materials, which
accountants' letters shall be addressed to the Depositor.
(f) It has provided to the Depositor any Collateral Term Sheets, Structural
Term Sheets, Series Term Sheets or Computational Materials distributed to any
potential investor in the Certificates and will not, without the prior written
consent of the Depositor provide additional Collateral Term Sheets, Structural
Term Sheets, Series Term Sheets or Computational Materials to any potential
investors.
(g) For purposes of this Agreement, "Series Term Sheets," "Collateral Term
Sheets" and "Structural Term Sheets" shall have the respective meanings assigned
to them (a) in the case of Series Term Sheets, in the no-action letter addressed
to Greenwood Trust Depositor, Discover Card Master Trust I dated April 5, 1996,
and (b) in the case of Collateral Term Sheets and Structural Term Sheets, in the
February 13, 1995 letter of Cleary, Gottlieb, Steen & Hamilton on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "Collateral Term
Sheet" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. "Computational
Materials" has the meaning assigned to it in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Commission to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
Structured Asset Corporation, the no-action letter dated May 27, 1994 issued by
the Division of Corporation Finance of the Commission to the Public Securities
Association and the no-action letter of February 17, 1995 issued by the
Commission to the Public Securities Association.
-19-
For purposes of this Agreement, as to each Underwriter, the term "Derived
Information" means such information, if any, in the Series Term Sheets,
Collateral Term Sheets, Structural Term Sheets and/or Computational Materials
that is not contained in either (i) the final Prospectus taking into account
information incorporated therein by reference (other than information
incorporated by reference from the Series Term Sheets, Collateral Term Sheets,
Structural Term Sheets and/or Computational Materials) or (ii) any computer tape
furnished by the Depositor (the "Computer Tape") or other Depositor Provided
Information.
8. Indemnification and Contribution.
(a) The Depositor 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 or incorporated by reference 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 Depositor 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 (x) in reliance upon and in conformity with the
Underwriters' Information or (y) with respect to Derived Information included in
any Current Report or any amendment or supplement thereof, except to the extent
that any untrue statement or alleged untrue statement therein results (or is
alleged to have resulted) from an error or material omission in the information
concerning the characteristics of the Mortgage Loans furnished by or on behalf
of the Depositor to the Underwriters for use in the preparation of any
Collateral Term Sheet, Structural Term Sheet, Series Term Sheet or Computational
Materials (the "Depositor Provided Information"), which error was not superseded
or corrected by the delivery to the Underwriters of corrected written or
electronic information, or for which the Depositor provided written notice of
such error to the Underwriters prior to the confirmation of the sale of the
applicable Certificates (any such uncorrected information a "Depositor Error");
provided, further, that the Depositor 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) (i) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Depositor against any and all losses, claims, damages or
liabilities to which the
-20-
Depositor 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
preliminary prospectus supplement, 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 Depositor by
such Underwriter through the Representative specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Depositor
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the Underwriters' Information.
(ii) Each Underwriter severally agrees, assuming (a) all information
provided by the Depositor (including the Computer Tape and any other Depositor
Provided Information) is accurate and complete in all material respects and (b)
the Depositor's independent public accountants have determined that the Derived
Information agrees with the Computer Tape, to indemnify and hold harmless the
Depositor, against any and all losses, claims, damages or liabilities, joint or
several, to which it 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 of a material fact contained
in the Derived Information prepared by such Underwriter and incorporated by
reference into the Registration Statement, or arise out of or are based upon the
omission or alleged omission to state in such Derived Information a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
(except that no such indemnity shall be available for any losses, claims,
damages or liabilities, or actions in respect thereof to the extent any such
untrue statement or alleged untrue statement therein or omission or alleged
omission results directly from an error in the information on the Computer Tape
or in any other Depositor Provided Information and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred.
(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). 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
-21-
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 Depositor 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 Depositor 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 Depositor 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 of the Certificates (before deducting expenses)
received by the Depositor 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 Depositor or by the
Underwriters and the parties' relative intent, knowledge, access to information
and
-22-
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 or commissions received by such 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 Depositor under this Section shall be in
addition to any liability which the Depositor 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 Depositor, to each officer of the
Depositor who has signed the Registration Statement and to each person, if any,
who controls the Depositor within the meaning of the Act.
9. Survival of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Depositor or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement or contained in certificates of officers of the Depositor 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 Depositor 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
Depositor shall remain responsible for the expenses to be paid or reimbursed by
the Depositor pursuant to Section 5(m) hereof and the respective obligations of
the Depositor and the Underwriters pursuant to Section 8 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 clauses (iii), (v) or (vi) of Section 6(c) or Section 6(k)), the Depositor
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Certificates.
10. Failure to Purchase the Certificates. If any Underwriter or
Underwriters default in its obligations to purchase the principal amount of
Certificates opposite such Underwriter's name on Schedule I hereto, 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 Representative may make arrangements satisfactory
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to the Depositor 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 exceed 10% of the
total principal amount of the Certificates, and arrangements satisfactory to the
Representative are not made by the Depositor for the purchase of such
Certificates by other persons within 48 hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting Underwriter or
the Depositor, except as provided in Section 9. As used in this 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.
11. 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 Representative, when delivered to One First National
Plaza, Suite IL1-0596, Chicago, IL 60670, Attention: Asset Backed Finance (fax #
(312) 732-4487), and if sent to the Depositor, when delivered to 150 East Gay
Street, 20th Floor, Columbus, Ohio 43215, Attention: Dan Long (fax # (614)
248-9544).
12. Successors. This 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 8, and no other person
will have any right or obligations hereunder.
13. Counterparts. This 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.
14. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
15. Applicable Law. This 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 Depositor and the Underwriters in
accordance with its terms.
Very truly yours,
BANK ONE CORPORATION
By: /s/ Daniel A. Long, Jr.
-------------------------------
Name: Daniel A. Long, Jr.
Title: Vice President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first written above.
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Lisa N. Wilhelm
--------------------------------
Name: Lisa N. Wilhelm
Title: Managing Director
Acting on behalf of itself
and as Representative of
the several Underwriters
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SCHEDULE I
INITIAL PRINCIPAL
UNDERWRITER AMOUNT OF CERTIFICATES
----------- ----------------------
Banc One Capital Markets, Inc. $166,666,668
Morgan Stanley & Co. Incorporated $166,666,666
Bear, Stearns & Co. Inc. $166,666,666
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EXHIBIT A
June 16, 1999
BANC ONE CAPITAL MARKETS, INC.
as Representative (the
"Representative") of the
Several Underwriters named herein
One First National Plaza, Suite IL1-0596
Chicago, IL 60670
Re: Underwriting Agreement dated June 16, 1999 (the
"Underwriting Agreement") between Banc One ABS Corporation
(the "Company") and Banc One Capital Markets, Inc., as
representative (the "Representative") of the Several
Underwriters named therein (the "Underwriters")
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement, the Company has undertaken certain
financial obligations to the Underwriters. Any financial obligations of the
Company (including all fees to be paid) under the Underwriting Agreement,
whether or not specifically enumerated in this paragraph, are hereinafter
referred to as the "Joint and Several Obligations"; provided, however, that
"Joint and Several Obligations" shall mean only the financial obligations of the
Company under the Underwriting Agreement (including without limitation the
payment of money damages for a breach of any of the Company's representations,
warranties or obligations, whether financial or otherwise and liability for any
payments required to be made under any indemnity provision).
As a condition of its execution of the Underwriting Agreement, the
Representative has required the undersigned to acknowledge its joint-and-several
liability with the Company for the payment of the Joint and Several Obligations
under the Underwriting Agreement.
Now, therefore, the Representative on behalf of the Underwriters and BANK
ONE CORPORATION, do hereby agree that:
A-1
(i) BANK ONE CORPORATION hereby agrees to be absolutely and
unconditionally jointly and severally liable with the Company to
the Underwriters for the payment of the Joint and Several
Obligations.
(ii) BANK ONE CORPORATION may honor its obligations hereunder either
by direct payment of any Joint and Several Obligations or by
causing any Joint and Several Obligations to be paid to the
Underwriters by the Company or another affiliate of BANK ONE
CORPORATION.
(iii) This 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.
(iv) This 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.
(v) This 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 8 of the Underwriting Agreement, and no other person will
have any right or obligations hereunder.
(vi) The indemnities and agreements of BANK ONE CORPORATION made
pursuant to this Agreement 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 BANK ONE
CORPORATION, any Underwriter, the Depositor or any of their
respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for
the Certificates.
A-2
(vii) 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 Representative, when delivered to One First National Plaza,
Suite IL1-0596, Chicago, IL 60670, Attention: Asset Backed
Finance (fax # (312) 732-4487); and if sent to BANK ONE
CORPORATION, when delivered to 150 East Gay Street, 20th Floor,
Columbus, Ohio 43215, Attention: Dan Long (fax # (614) 248-9544).
A-3
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Underwriting Agreement.
Very truly yours,
BANK ONE CORPORATION
By: ________________________________
Name:
Title:
Acknowledged and Agreed:
BANC ONE CAPITAL MARKETS, INC.
By: _____________________________
Name:
Title:
Acting on behalf of itself and as
Representative of the several
Underwriters.
A-4