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EXHIBIT 1.1
Banc One HELOC Trust 1998-1
$850,000,000
HELOC ASSET-BACKED CERTIFICATES, Series 1998-1
Banc One ABS Corporation
(DEPOSITOR)
UNDERWRITING AGREEMENT
September 16, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
as Representative (the
"Representative") of the
Several Underwriters named herein
11 Madison Avenue
New York, NY 10010
Ladies and Gentlemen:
1. Introductory. Banc One ABS Corporation, an Ohio corporation (the
"Depositor") and a wholly-owned subsidiary of BANC ONE CORPORATION, proposes to
cause Banc One HELOC Trust 1998-1 (the "Trust") to issue and sell $850,000,000
principal amount of its HELOC Asset-Backed Certificates, Series 1998-1 (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 August 31, 1998 (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 August 31, 1998 (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
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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., Bank One,
Utah, N.A. and Bank One, West Virginia, N.A. (each, a "Seller" and together the
"Sellers") to the Depositor pursuant to the Mortgage Loan Purchase Agreement to
be dated as of August 31, 1998 (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 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 conform, 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
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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, 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
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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 June 30,
1998, 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 June 30, 1998.
(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) The Depositor has filed the preliminary prospectus
supplement relating to the Certificates pursuant to and in accordance
with Rule 424(b).
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(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 final two paragraphs on the cover page of, 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 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
of 99.75% of the principal amount thereof. 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 0.25%.
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 September 24, 1998, 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 Cedel Bank, societe anonyme 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.
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).
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(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.
(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.
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(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 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."
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(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."
(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
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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 BANC ONE CORPORATION which, in the reasonable judgment
of a majority in interest of the Underwriters (including 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 (other than a downgrade by Standard & Poor's, in connection with
the "CreditWatch with negative implication" previously announced on September 3,
1998) in the rating of any debt securities of BANC ONE CORPORATION or any of its
Affiliates by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (iv) any suspension of trading of any securities of BANC ONE
CORPORATION on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by Federal or New York authorities; or (vi) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress, or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters (including the Representative), the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Certificates. It is understood that on or about October 1, 1998, BANC
ONE CORPORATION will be merged with and into its wholly owned subsidiary, BANK
ONE CORPORATION (the "Merger"). As a result, following such Merger, all
references to BANC ONE CORPORATION as set forth in this Section 6(c) shall be
deemed to be references to BANK ONE CORPORATION.
(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:
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(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 or contravene the terms of applicable
provisions of statutory law or regulation.
(v) To such counsel's knowledge, there are no actions,
proceedings or investigations pending against the 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.
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.
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(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, 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 or a company "controlled by" an
"investment company" within the meaning of 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 -- Federal Tax Considerations," "Certain Federal Income Tax
Consequences," "State Taxes," "ERISA Considerations," "Summary of Terms
-- Federal 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 cause them to believe that the Registration
Statement, as of the Effective Time, contained an untrue
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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 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 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 and authority 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 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
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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 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 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
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description thereof in the Registration Statement and the Prospectus (and any
supplements thereto).
(i) The Representative shall have received the opinion of Shaw,
Pittman, Potts & Trowbridge, 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 duly organized and validly existing under
the laws of the jurisdiction of its incorporation, is duly qualified
and/or licensed to do business in all jurisdictions where the nature of
its operations as contemplated in the Insurance Agreements requires
such qualification, and has the power and authority (corporate and
other) to issue the Policy and to enter into the Insurance Agreements
and to perform its obligations under the Insurance Agreements.
(ii) The execution, delivery and performance by the Insurer of
the Insurance Agreements and the Policy have been duly authorized by
all necessary corporate action on the part of the Insurer.
(iii) The execution, delivery and performance by the Insurer
of the Insurance Agreements and the Policy do not require the consent
or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any state or other
governmental agency or authority which has not previously been
effected.
(iv) 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.
(v) The obligations of the Insurer under the Policy will rank
equally with the general obligations and all other unsecured
indebtedness of the Insurer outstanding on the Closing Date or
thereafter that are not contractually subordinated to the payment of
such obligations under the Policy.
(vi) 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
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contained therein, such counsel also shall state that it has no reason to
believe that as of the Closing Date any of the information contained in the
Prospectus in (x) the paragraph titled "The 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 (other than financial,
numerical and statistical information contained therein as to which such counsel
need express no opinion).
(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, as to the
income tax treatment of the Certificates in Ohio.
(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.
(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
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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 consent, approval or authorization of, filing or
registration with, or notice to, any court or governmental agency or
regulatory authority 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.
(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.
(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
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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 are
contemplated by the Commission, and (iv) since June 30, 1998, except as may be
disclosed in the Prospectus or in such certificate and except with respect to
Standard & Poor's placing the debt securities of BANC ONE CORPORATION on
"CreditWatch with negative implication," 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, 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, N.A. 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:
(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
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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 other
form as may be agreed prior to the date of the this Agreement):
This information does not constitute either an offer to sell
or a solicitation of an offer to buy any of the securities
referred to herein. Information contained herein is
confidential and provided for information only, does not
purport to be complete and should not be relied upon in
connection with any decision to purchase the securities. This
information supersedes any prior versions hereof and will be
deemed to be superseded by any subsequent versions including,
with respect to any description of the securities or the
underlying assets, the information contained in the final
Prospectus and accompanying Prospectus Supplement. Offers to
sell and solicitations of offers to buy the securities are
made only by the final Prospectus and the related Prospectus
Supplement.
(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 not, and will not, without the prior written
consent of the Depositor, provide any Collateral Term Sheets, Structural Term
Sheets, Series Term Sheets or Computational Materials to any investor after the
date of this Agreement.
(g) Any Series Term Sheets, Collateral Term Sheet, Structural
Term Sheet, Series Term Sheet or Computational Materials do not contain any
untrue statement of a material fact and do not 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 to the extent that any such misstatement or omission results from a
Depositor Error (as defined in Section 8 below).
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
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behalf of the Public Securities Association (which letter, and the SEC staff's
response thereto, are 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.
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").
(h) It has not delivered any Series Term Sheets, Collateral
Term Sheets, Structural Term Sheets and/or Computational Materials to any
investors in the Certificates.
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 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
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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 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 they 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 results
directly from an error in the information on the Computer Tape or in any other
information concerning the Mortgage Loans provided by the Depositor to any
Underwriter in writing or through electronic transmission) and agrees to
reimburse each such indemnified party for any legal or other
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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 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
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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 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 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 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
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the conditions set forth in items (iii), (v) and (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 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
11 Madison Avenue, 20th Floor, New York, New York 10010, Attention: Investment
Banking Department -- Transactions Advisory Group (fax # (212) 318-0532), 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.
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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,
BANC ONE ABS CORPORATION
By:_________________________________
Name: Daniel A. Long, Jr.
Title: Vice President
The foregoing Underwriting
Agreement is hereby
confirmed and accepted as
of the date first written above.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:_____________________________
Name: Nita S. Cherry
Title: 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
----------- ----------------------
Credit Suisse First Boston Corporation $170,000,000
Banc One Capital Markets, Inc. $170,000,000
First Chicago Capital Markets, Inc. $170,000,000
Lehman Brothers Inc. $170,000,000
Salomon Smith Barney Inc. $170,000,000
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27
EXHIBIT A
September 16, 1998
Credit Suisse First Boston Corporation
as Representative of
the Several Underwriters
11 Madison Avenue
New York, NY 10010
Re: Underwriting Agreement dated September 16, 1998 (the
"Underwriting Agreement") between Banc One ABS Corporation
(the "Company") and Credit Suisse First Boston Corporation, 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).
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 BANC ONE CORPORATION, do hereby agree that:
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(i) BANC 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) BANC 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 BANC 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) 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 11 Madison Avenue, New York, NY
10010, Attention: Investment Banking
Department--Transactions Advisory Group (fax # (212)
318-0532); and if sent to BANC ONE CORPORATION, when
delivered to 150 East Gay Street, 20th Floor,
Columbus, Ohio 43215, Attention: Dan Long (fax #
(614) 248-9544).
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Capitalized terms used herein and not defined herein shall
have their respective meanings as set forth in the Agreement.
Very truly yours,
BANC ONE CORPORATION
By:______________________________
Name: Peter W. Atwater
Title: Treasurer
Acknowledged and Agreed:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:_____________________________
Name: Nita S. Cherry
Title: Director
Acting on behalf of itself and as
Representative of the several
Underwriters.
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