Exhibit 1.1
M&I AUTO FINANCE TRUST 2002-1
$133,000,000 Class A-1 1.77% Asset Backed Notes
$122,000,000 Class A-2 1.95% Asset Backed Notes
$190,000,000 Class A-3 2.49% Asset Backed Notes
$68,187,500 Class A-4 3.04% Asset Backed Notes
$11,812,500 Class B 3.52% Asset Backed Notes
M&I DEALER AUTO SECURITIZATION, LLC
(Company)
M&I XXXXXXXX & XXXXXX BANK
(Sponsor)
UNDERWRITING AGREEMENT
September 26, 2002
BANC ONE CAPITAL MARKETS, INC.
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
Mail Suite IL1-0596
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000-0596
Ladies and Gentlemen:
M&I Dealer Auto Securitization, LLC, a Delaware limited liability
company (the "Company") and a wholly owned, special purpose, bankruptcy remote
subsidiary of M&I Xxxxxxxx & Xxxxxx Bank, a Wisconsin banking corporation (the
"Sponsor"), proposes to sell to the Underwriters listed in Schedule I hereto
(the "Underwriters") $133,00,000 aggregate principal amount of Class A-1 % Asset
Backed Notes (the "Class A-1 Notes"), $122,000,000 aggregate principal amount of
Class A-2 1.95% Asset Backed Notes (the "Class A-2 Notes"), $219,187,500
aggregate principal amount of Class A-3 2.49% Asset Backed Notes (the "Class A-3
Notes"), $68,187,500 aggregate principal amount of Class A-4 3.04% Asset Backed
Notes (the "Class A-4 Notes") and $11,812,000 aggregate principal amount of
Class B 3.52% Asset Backed Notes (the "Class B Notes" and, together with the
Class A-1 Notes, Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes,
the "Notes"), set forth in Section 1 hereof. The Notes are issued by the M&I
Auto Loan Trust 2002-1 (the "Trust"). The Trust also will issue one certificate
to the Company that will represent the sole equity interest in the Trust (the
"Certificates" and, together with the Notes, the "Securities"). Each Note will
be secured by the assets of the Trust pursuant to the Indenture (as hereinafter
defined).
The assets of the Trust (the "Trust Property") include, among other
things, a pool of retail motor vehicle loans and/or retail installment sale
contracts secured by new and used automobiles, motorcycles, vans, trucks, buses
and/or trailers, light duty trucks and
other similar vehicles (the "Receivables") and subsequent receivables (the
"Subsequent Receivables"; and collectively , the "Receivables") and certain
monies received under the Receivables after October 4, 2002 (the "Initial Cutoff
Date") or, with respect to Subsequent Receivables each cutoff date related to
the transfer of such Subsequent Receivables (each, a "Subsequent Cutoff Date"
related to a "Funding Date"), such Receivables to be serviced for the Trust by
M&I Xxxxxxxx & Xxxxxx Bank (the "Sponsor") in its capacity as servicer (in such
capacity, the "Servicer").
A portion of the Receivables were sold (1) to M&I Northwoods III LLC
("Northwoods") pursuant to a Purchase Agreement, dated as of December 28, 2001
between the Sponsor and Northwoods and (2) simultaneously sold to Preferred
Receivables Funding Corporation ("PREFCO") pursuant to an Amended and Restated
Loan Purchase Agreement, dated as of December 28, 2001, among Northwoods, the
Sponsor, PREFCO, certain financial institutions and Bank One, National
Association, as agent, and will be sold to the Company by PREFCO, Northwoods and
the Sponsor pursuant to a Purchase Agreement, dated as of the Closing Date (the
"Purchase Agreement") between the Company, the Sponsor, Northwoods and PREFCO.
The remaining Receivables will be sold directly into the transaction by the
Sponsor pursuant to the Purchase Agreement. M&I Dealer Finance, Inc. originated
100% of the Receivables (in such capacity, the "Originator") and has previously
sold the Receivables to the Sponsor. The Receivables will be conveyed by the
Company to the Trust pursuant to a Sale and Servicing Agreement dated as of the
Closing Date (the "Sale and Servicing Agreement") among the Company, the
Servicer, Bank One, National Association, as indenture trustee (the "Indenture
Trustee") and The Bank of New York (Delaware), as owner trustee (the "Owner
Trustee"). The Subsequent Receivables will be conveyed by the Company to the
Trust pursuant to the Purchase Agreement and one or more funding notices (each,
a "Funding Notice") executed after the Closing Date on each Funding Date on or
prior to the date which is three months after the Closing Date (the "Funding
Period"), and will be conveyed to the Trust pursuant to the Sale and Servicing
Agreement and related Funding Notice.
The Notes will be issued pursuant to an Indenture to be dated as of the
Closing Date (the "Indenture") between the Owner Trustee and the Indenture
Trustee. The Sponsor will agree to perform certain administrative tasks pursuant
to an Administration Agreement to be dated as of the Closing Date (the
"Administration Agreement") among the Sponsor, the Owner Trustee and the
Indenture Trustee. The Certificates will be issued pursuant to an Amended and
Restated Trust Agreement to be dated as of the Closing Date (the "Trust
Agreement") between the Company and the Owner Trustee.
The Company has prepared, in conformity in all material respects with
the provisions of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations of the Commission thereunder (the "Rules and
Regulations"), and filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Reg. No. 333-76406), including a
prospectus, relating to the Notes. The registration statement as amended at the
time it became effective, or, if any post-effective amendment has been filed
with respect thereto, as amended by the most recent post-effective amendment at
the time of its effectiveness, is referred to as the "Registration Statement,"
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the form of base prospectus included in the Registration Statement as most
recently filed with the Commission is referred to as the "Base Prospectus" and
the form of the prospectus which includes the Base Prospectus and a prospectus
supplement describing the Notes and the offering thereof (the "Prospectus
Supplement") which prospectus is first filed on or after the date of this
Agreement in accordance with Rule 424(b) is referred to in this Agreement as the
"Prospectus".
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean the latest of the dates that the
Registration Statement or the most recent post-effective amendment thereto
became effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Rule 424" refers to
such rule under the Act. "Basic Documents" shall mean the Purchase Agreement,
the Sale and Servicing Agreement, the Indenture, the Trust Agreement, the
Administration Agreement, this Agreement, the Securities and the Note Depository
Agreement. "Securityholder" means any Noteholder and any Certificateholder and
"Security Owner" means the beneficial owner of any Note or Certificate. To the
extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in Appendix X to the Sale and Servicing Agreement.
1. The Company agrees to sell and deliver to the Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company, the respective aggregate principal amounts and classes of Notes set
forth opposite such Underwriter's name in Schedule I hereto. To the extent that
on the Closing Date the aggregate principal amount of any class of Notes
available for sale to the Underwriters by the Company is greater than the
aggregate principal amount of such class of Notes set forth on Schedule I, each
Underwriter, on the conditions set forth in the preceding sentence, agrees to
purchase, severally and not jointly, from the Company its pro rata percentage
(based on the aggregate principal amount of that class of Notes set forth
opposite such Underwriter's name on Schedule I) of the aggregate principal
amount of that class of Notes available for sale to the Underwriters on the
Closing Date up to an aggregate principal amount not to exceed 110% of the
aggregate principal amount of such class of Notes set forth opposite such
Underwriter's name on Schedule I. The purchase price for Notes of any class will
be the applicable percentage set forth on Schedule I hereto of the aggregate
principal amount of such class purchased. Each Underwriter agrees that:
(a) It has not offered or sold and prior to the expiry of a period of
six months from the closing date, will not offer or sell any Notes to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing, or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
as amended.
(b) It has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in
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investment activity (within the meaning of section 21 of the Financial Services
and Markets Act 2000 ("FSMA") received by it in connection with the issue or
sale of any Notes in circumstances in which section 21(1) of the FSMA does not
apply to the Trust and shall procure that the Notes are not offered or sold in
the United Kingdom other than to persons authorized under FSMA or to persons
otherwise having professional experience in matters relating to investments and
qualifying as investment professionals under Article 19 of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2001, as amended or to
person qualifying as high net worth persons under Article 49 of the Order, or if
distributed in the United Kingdom by authorized persons, only to persons
qualifying as investment professionals under Article 14 of the Financial
Services and Markets Act 2000 (Promotion of Collective Investment Schemes)
(Exemptions) Order 2001 ("CIS Order") or to persons qualifying as high net worth
persons under Article 22 of the CIS Order.
(c) It has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Notes in, from
or otherwise involving the United Kingdom.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Notes purchased by the Underwriters hereunder as soon
after the Registration Statement and this Agreement have become effective as in
the judgment of the Company and the Representative is advisable and (ii)
initially to offer the Notes purchased by the Underwriters hereunder upon the
terms set forth in the Prospectus.
3. Payment for the Notes purchased by the Underwriters hereunder
shall be made to the Company or to its order by wire transfer of same day funds
at the office of Xxxxx, Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 at 10:00 A.M., Chicago, Illinois, time on October 10, 2002, or at
such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Representative and the Company may agree upon in
writing (the "Closing Date"). As used herein, the term "Business Day" means any
day other than a day on which banks generally are permitted or required to be
closed in New York, New York, Chicago, Illinois or Milwaukee, Wisconsin.
Payment for the Notes purchased by the Underwriters hereunder shall be
made against delivery to the Representative for the respective accounts of the
Underwriters on the Closing Date of such Notes in global form registered in the
name of Cede & Co. as nominee of The Depository Trust Company and in such
denominations, as permitted by the Basic Documents and the Note Depository
Agreement, as the Representative shall request in writing not later than a
reasonable time prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Notes duly paid by the
Company. The Company shall make such global certificates representing the Notes
available for inspection by the Representative at the office of Mayer, Brown,
Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 not later than
1:00 P.M., Chicago, Illinois time, on the Business Day prior to the Closing
Date.
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4. Each of the Company and the Sponsor, as applicable, represents
and warrants to and agrees with each Underwriter that:
(a) The Registration Statement, including amendments thereto
as may have been required on or prior to the date hereof, relating to
the Notes, has been filed with the Commission and such Registration
Statement as amended has become effective. The conditions to the use by
the Company of a Registration Statement on Form S-3 under the Act, as
set forth in the General Instructions to Form S-3, have been satisfied
with respect to the Registration Statement and the Prospectus.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission, and (i) on the Effective Date of the
Registration Statement, the Registration Statement conformed in all
material respects to the requirements of the Act and 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 (ii) at
the time of filing of the Prospectus pursuant to Rule 424(b) and on the
Closing Date the Registration Statement will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
and such document will 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.
(c) (i) On the date of this Agreement, the Prospectus conforms
in all material respects to the requirements of the Act and the Rules
and Regulations, and does 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, in light of the
circumstances under which they were made, not misleading and (ii) at
the time of filing of the Prospectus pursuant to Rule 424(b) and on the
Closing Date the Prospectus will conform in all material respects to
the requirements of the Act and the Rules and Regulations, and such
document will 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, in light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished to the Sponsor or the Company in writing by any Underwriter
through the Representative expressly for use in the Prospectus
(collectively, "Underwriter Information"). Each of the Company and the
Sponsor hereby agrees with the Underwriters that, for all purposes of
this Agreement, the only Underwriter Information furnished consists of
the statements in the second sentence of the third paragraph and the
fourth, fifth and sixth paragraphs under the caption "Underwriting" in
the Prospectus Supplement.
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(d) The Company is a limited liability company that is duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with power and authority to own its properties and
conduct its business as now conducted by it and had at all relevant
times, and has, full power, authority and legal right to acquire, own
and sell the Receivables and the other Trust Property. The Company has
the power, authority and legal right to execute, deliver and perform
this Agreement and each of the other Basic Documents to which it is a
party and to carry out their respective terms and to sell and assign
the respective property to be sold and assigned to and deposited with
the Owner Trustee as Trust Property.
(e) The Sponsor is a Wisconsin banking corporation that is
duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, with power and authority to own its
properties and conduct its business as now conducted by it and had at
all relevant times, and has, full power, authority and legal right to
acquire, own and sell the Receivables and the other Trust Property. The
Sponsor has the power, authority and legal right to execute, deliver
and perform this Agreement and each of the other Basic Documents to
which it is a party and to carry out their respective terms and to sell
and assign the respective property to be sold and assigned to and
deposited with the Owner Trustee as Trust Property.
(f) The execution, delivery and performance by each of the
Company and the Sponsor of each of the Basic Documents to which it is a
party and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by each of the Company and the
Sponsor by all necessary limited liability company and corporate
action. The Basic Documents to which each of the Company and the
Sponsor is a party have been duly executed and delivered by each of the
Company and the Sponsor and, when executed and delivered by each of the
Company and the Sponsor and the other parties thereto, each of such
Basic Documents will constitute a legal, valid and binding obligation
of each of the Company and the Sponsor, enforceable against each of the
Company and the Sponsor in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership, liquidation
and other similar laws affecting enforcement of the rights of creditors
generally and to equitable limitations on the availability of specific
remedies.
(g) No consent, approval, authorization, license or other
order or action of, or filing or registration with, any court or
governmental authority, bureau or agency is required in connection with
the execution, delivery or performance by either the Company or the
Sponsor of any of the Basic Documents to which it is a party or the
consummation of the transactions contemplated hereby or thereby except
such as have been obtained and made under the Act and the Rules and
Regulations or state securities laws and any filings of UCC financing
statements.
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(h) Neither the Company nor the Sponsor is in violation of its
organizational documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any agreement or instrument to which it is a party or by which it is
bound which violation or default would have a material adverse effect
on the transactions contemplated herein or in the Basic Documents. The
execution, delivery and performance by each of the Company and the
Sponsor of the Basic Documents to which it is a party, the consummation
of the transactions contemplated hereby and thereby and the compliance
with the terms and provisions hereof and thereof will not materially
conflict with or result in a material breach or violation of any of the
terms and provisions of, constitute (with or without notice or lapse of
time or both) a material default under or result in the creation or
imposition of any Lien (other than as contemplated by the Basic
Documents) upon any of its properties pursuant to the terms of, (A) the
organizational documents of either the Company or the Sponsor, (B) any
material indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which either the Company or the Sponsor is a
party or by which the Company is bound, which violation or default
would have a material adverse effect on the transactions contemplated
herein or in the Basic Documents or (C) any law, order, rule or
regulation applicable to either of the Company and the Sponsor of any
regulatory body, any court, administrative agency or other governmental
instrumentality having jurisdiction over the Company or the Sponsor.
(i) There are no proceedings or investigations pending, or to
the knowledge of the Company and the Sponsor threatened, to which
either the Company or the Sponsor is a party before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) that are required to be disclosed in
the Registration Statement or the Prospectus and are not so disclosed,
(ii) asserting the invalidity of this Agreement or any of the Basic
Documents, (iii) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iv) seeking any determination
or ruling that might materially and adversely affect the performance by
either of the Company or the Sponsor of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic
Documents, (v) that may materially and adversely affect the federal or
state income, excise, franchise or similar tax attributes of any of the
Securities, or (vi) which, if determined adversely, could individually
or in the aggregate reasonably be expected to materially adversely
affect the interests of the holders of any of the Securities or the
marketability of any of the Securities.
(j) There are no contracts or other documents of a character
(i) required to be filed as an exhibit to the Registration Statement,
(ii) required to be described in the Registration Statement or (iii)
required to be described in the Prospectus pursuant to the Act and the
Rules and Regulations which are not filed or described as required.
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(k) The representations and warranties of each of the Company
and the Sponsor contained in the Basic Documents to which it is a party
are true and correct as of the dates of the respective Basic Documents
in all material respects.
(l) By assignment and delivery of each of the Receivables to
the Company and to the Trust as of the Closing Date, title in such
Receivables will be transferred to the Company, subject to no Lien
prior or equal to the ownership interest granted to the Company and the
Company will transfer title in the Receivables to the Trust, subject to
no Lien created by the Company prior to equal to the ownership or
security interest granted to the Trust.
(m) The computer tapes with respect to the Receivables to be
sold to the Trust created as of the Cutoff Date (the "Computer Tapes"),
and made available to the Representative by the Sponsor were complete
and accurate in all material respects as of the date thereof.
(n) The Securities have been duly authorized, and, when issued
and delivered pursuant to the Basic Documents and duly executed and
authenticated by the Owner Trustee and the Indenture Trustee, as
applicable, will be duly and validly issued, authenticated and
delivered and entitled to the benefits provided by the Basic Documents.
(o) Deloitte & Touche are independent public accountants with
respect to the Sponsor within the meaning of the Act and the Rules and
Regulations.
(p) Prior to the termination of the offering of the Notes, the
Company will not file or cause to be filed any amendment of the
Registration Statement or supplement to the Prospectus without first
furnishing to the Representative a copy of the proposed amendment or
supplement and giving the Representative a reasonable opportunity to
review the same. Subject to the foregoing sentence, the Company will
cause the Prospectus, properly completed, and any supplement thereto,
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Underwriters of such timely filing. The Company
will promptly advise the Underwriters (i) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (ii) when any amendment to the Registration Statement
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the receipt by
the Company of notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its reasonable efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
The receipt by the
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Representative of any amendment or supplement to the Registration
Statement or Prospectus, as applicable, shall not be deemed a waiver of
any condition set forth in Section 5 hereof.
(q) The Company will deliver, at its expense, to the
Representative, two signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits, and, during the period mentioned in paragraph (c) below, and
the Company will deliver, at its expense, to each Underwriter as many
copies of the Prospectus (including all amendments and supplements
thereto) as the Representative may reasonably request.
(r) If during such period of time after the first date of
the public offering of the Notes as in the opinion of counsel for the
Underwriters a prospectus relating to the Notes is required by law to
be delivered in connection with sales by an Underwriter or a dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not materially misleading, or it is necessary to amend or
supplement the Prospectus to comply with applicable law, the Company
will forthwith prepare and furnish, at the expense of the Company, to
the Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Company) to which Notes may have
been sold by the Underwriters and upon request by the Representative to
any other dealers identified by the Representative, such amendments or
supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be materially misleading or so that the Prospectus will
comply with applicable law. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(s) The Company will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution
of the Notes and the Sponsor will pay all reasonable fees and expenses
(including fees and disbursements of counsel to the Representative to
the extent provided in Section 4(r) hereof) incurred in connection with
such qualification and in connection with the determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as the Representative may designate; provided, however,
that the Company shall not be obligated to qualify to do business in
any jurisdiction in which it is not currently so qualified; and
provided further that the Company shall not be required to file a
general consent to service of process in any jurisdiction.
(t) The Company will cause the Trust to make generally
available to Securityholders and to the Representative all financial
information required to be sent to Securityholders pursuant to the
Basic Documents.
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(u) For the period from the date of this Agreement until the
retirement of all of the Notes the Company will, or will cause the
Servicer to, furnish to the Representative (i) copies of each
Servicer's Certificate and the annual statements of compliance
delivered to the Owner Trustee or Indenture Trustee pursuant to the
Basic Documents and the annual independent certified public
accountant's servicing reports furnished to the Owner Trustee or
Indenture Trustee pursuant to the Basic Documents, by first-class mail
at the same time such statements and reports are furnished to the Owner
Trustee or Indenture Trustee, (ii) copies of each amendment to any of
the Basic Documents, (iii) copies of all other reports and
communications to any Securityholders or Security Owners, or to or from
the Owner Trustee, Indenture Trustee, the Clearing Agency, any Rating
Agency or the Commission relating to the Trust or the Securities, (iv)
copies of each Opinion of Counsel and Officer's Certificate delivered
pursuant to the Basic Documents, as soon as available, and (v) from
time to time, such other information concerning the Trust or the
Sponsor as the Representative may reasonably request.
(v) If required, the Company will register the Notes
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(w) To the extent, if any, that the ratings provided with
respect to the Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the
Company, the Company shall furnish or cause to be furnished such
documents and use reasonable efforts to take any such other action.
(x) Neither the Company nor the Sponsor will, without the
prior written consent of the Representative, publicly offer or sell in
the United States any asset backed notes or asset backed certificates
or other similar securities representing interests in or secured by
motor vehicle loans and/or retail installment sale contracts secured by
new and/or used automobiles, motorcycles, vans, trucks, buses and/or
trailers, light duty trucks and/or other similar vehicles originated or
owned by the Company or the Sponsor for a period of thirty days
following the commencement of the offering of the Notes to the public.
(y) On or before the final transfer of Subsequent
Receivables to the Trust and the expiration of the Funding Period, if
the Sponsor is required to obtain a letter from Deloitte & Touche, as
independent auditors for the Sponsor, to the effect that such
accountants have performed certain specified procedures, all of which
have been agreed to by the Sponsor, as a result of which they have
determined, having examined in accordance with such agreed upon
procedures, that the Subsequent Receivables conform to the related
requirements described in the Prospectus, the Sponsor shall deliver a
copy of such letter, addressed to the Representative. The foregoing
letter shall be at the expense of the Sponsor.
(z) At the time of the execution and delivery of on each
Funding Date of the Subsequent Receivables, such Subsequent Receivables
will have been duly and validly granted to the Indenture Trustee in
accordance with the Indenture; and
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when such grant is effected, a duly and validly perfected transfer of
all such Subsequent Receivables subject to no prior lien, mortgage,
security interest, pledge, charge or other encumbrance created by the
Sponsor or the Company will have occurred. As of the related Funding
Date, each of the Subsequent Receivables will meet the eligibility
criteria described in the Prospectus.
5. The Sponsor will pay (or will promptly reimburse the Underwriters
to the extent that the Underwriters shall have paid or otherwise incurred) all
costs and expenses incident to the performance of their respective obligations
under this Agreement, including, without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Notes, (ii) incident to the
preparation, printing (or otherwise reproducing), filing and delivery under the
Act of the Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and determination
of eligibility for investment of the Notes under the laws of such jurisdictions
as the Representative may designate (including fees and disbursements of counsel
for the Underwriters with respect thereto), (iv) related to any filing with the
National Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Basic Documents and any Blue Sky Memorandum and the furnishing to
the Underwriters and dealers of copies of the Registration Statement, any
preliminary prospectus and the Prospectus (including exhibits, amendments and
supplements thereto) as herein provided, (vi) the fees and disbursements of the
counsel of the Sponsor and the Company and accountants and all fees and
disbursements of Underwriters' counsel, (vii) any fees and expenses payable to
the Clearing Agency, (viii) any fees and expenses payable to the Rating Agencies
in connection with the rating of the Notes and (ix) any fees and expenses of the
Owner Trustee and the Indenture Trustee. Notwithstanding the foregoing sentence,
the Underwriters will pay all of their own expenses for travel and meals
incurred in connection with their underwriting of the Notes.
6. The obligations of the Underwriters to purchase and pay for the
Notes will be subject to the accuracy in all material respects, as of the date
hereof and the Closing Date, of the representations and warranties on the part
of the Sponsor and the Company herein, to the accuracy of the statements of
officers of the Sponsor and the Company made in any writing delivered at the
Closing pursuant to the provisions hereof, to the performance by each of the
Sponsor and the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) At each of the time this Agreement is executed and
delivered by the Sponsor and the Company and at the Closing Date,
Deloitte & Touche shall have furnished to the Representative letters
dated, respectively, as of the date of this Agreement and as of the
Closing Date, substantially in the forms of the drafts to which the
Representative previously agreed and otherwise in form and substance
satisfactory to the Representative and Deloitte & Touche.
11
(b) The Prospectus used to confirm sales of Notes shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 4(c) of this Agreement; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or, to the knowledge of the Company, contemplated by the
Commission; and all requests for additional information from the
Commission with respect to the Registration Statement shall have been
complied with to the reasonable satisfaction of the Representative.
(c) The Representative shall have received officer's
certificates, dated the Closing Date, signed by any Vice President,
Secretary or more senior officer of the Sponsor and the Company, as
applicable, representing and warranting that, as of the Closing Date,
the representations and warranties of each of the Company and the
Sponsor in this Agreement and/or the other Basic Documents are true and
correct, that each of the Company and the Sponsor has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or under the other Basic Documents at or prior to
the Closing Date, and that since June 30, 2002, there has been no
material adverse change, or any development involving a material
adverse change, in or affecting particularly the Originator's portfolio
of Motor Vehicle Loans or the business or properties of the Trust, the
Sponsor or its Affiliates which materially impairs the investment
quality of the Notes.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any material adverse
change, or any development involving a material adverse change, in or
affecting the business, operations, financial condition or properties
of the Trust, the Company, the Sponsor or its Affiliates which, in the
reasonable judgment of the Representative, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Notes,
(ii) any downgrading in the rating of any debt securities of the
Sponsor 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 no implication of a possible downgrading of such
rating).
(e) Xxxxxxx & Xxxx, S.C., special Wisconsin counsel of the
Sponsor, shall have furnished to the Representative its written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, with respect to certain corporate
matters relating to the Sponsor, certain perfection matters under
Wisconsin law and such other matters as the Representative may request.
(f) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special counsel to the
Company, shall have furnished to the Representative its written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel,
12
with respect to certain corporate matters relating to the Company and
certain perfection matters under Delaware law.
(g) Xxxxx, Xxxxx, Xxxx & Maw, counsel to the Company and the
Sponsor and the Underwriters, shall have furnished its written opinion,
dated the Closing Date, with respect to certain insolvency matters
relating to the Sponsor.
(h) The Representative shall have received an opinion of
Xxxxx, Xxxxx, Xxxx & Maw, counsel to the Sponsor, the Company and the
Underwriters, dated the Closing Date, with respect to certain corporate
and securities law matters relating to the Sponsor and the Company,
certain federal income tax matters relating to the Trust and the Notes,
the validity of the Securities and such other related matters as the
Representative shall require and the Sponsor and the Company 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.
(i) The Representative shall have received an opinion
addressed to the Underwriters from counsel to the Owner Trustee, dated
the Closing Date and satisfactory in form and substance to the
Representative and its counsel.
(j) The Representative shall have received from counsel for
the Indenture Trustee a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and its
counsel.
(k) Xxxxxx & Xxxxxx, special Minnesota counsel of the
Sponsor, shall have furnished to the Representative its written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, with respect to certain perfection
matters under Minnesota law.
(l) Xxxxx & Xxxxxxx, special counsel of the Sponsor, shall
have furnished to the Representative a written memorandum, dated the
Closing Date, in form and substance satisfactory to the Representative
and its counsel, with respect to certain enforceability and compliance
matters relating to the Receivables.
(m) If any Rating Agency shall have requested any legal
opinion, officer's certificate or other document not required by this
Agreement, the Representative also shall have received such legal
opinion, officer's certificate or other document together with a letter
from the party delivering such opinion, certificate or document
allowing the Underwriters to rely on such opinion, certificate or
document as if it were addressed to the Underwriters.
(n) The Class A-1 Notes shall have been rated in the highest
possible short term rating category by each of the Rating Agencies, the
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been
rated in the highest possible long-term rating category by each of the
Rating Agencies and the Class B Notes
13
shall have been rated at least in the "A-" category or its equivalent
by at least two Rating Agencies.
(o) On the Closing Date and on each Funding Date, the
representations and warranties of the Sponsor and the Company herein
and in the other Basic Documents will be true and correct in all
material respects.
(p) Any taxes, fees and other governmental charges which are
due and payable in connection with the execution, delivery and
performance of this Agreement and the Basic Documents shall have been
paid by the Sponsor or the Company at or prior to the Closing Date.
(q) The Sponsor and the Company shall have made or caused to
be made a deposit in the Reserve Account in the amount of the Reserve
Account Deposit.
(r) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1 financing
statements have been filed in the offices of the Department of Finance
- Uniform Commercial Code Section of the State of Wisconsin and the
Secretary of State of the State of Delaware reflecting the interest of
each of the Company, the Owner Trustee and the Indenture Trustee in the
Receivables, the other Trust Property and the proceeds thereof.
(s) The Collection Account, the Prefunding Account and the
Reserve Account shall have been established in accordance with the
terms of the Sale and Servicing Agreement.
7. The Company, the Sponsor and the Underwriters agree to the
following indemnification and contribution provisions:
(a) The Company and the Sponsor agree jointly and severally
to indemnify and hold harmless each Underwriter and each person, if
any, who controls each Underwriter within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses reasonably incurred in
connection with investigating, preparing or defending any suit, action
or proceeding or any claim asserted), incurred by such Underwriter or
such controlling person and caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (as amended or supplemented if the Sponsor
or the Company shall have furnished such amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be
14
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with the Underwriter
Information; provided that the foregoing indemnity with respect to any
untrue statement or omission in any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting any
losses, claims or damages purchased Notes if such untrue statement or
omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Sponsor or the Company shall have
furnished any amendments or supplements thereto) and a copy of the
Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the
sale of such Notes to such person.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Sponsor and the Company, each director
and officer of the Sponsor and the Company and each person who controls
the Sponsor or the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Sponsor and the Company to each Underwriter, but
only with reference to Underwriter Information delivered by such
Underwriter.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity
may be sought pursuant to any of the three preceding paragraphs, such
person (the "Indemnified Person") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding; provided that the failure of the
Indemnified Person to give notice shall not relieve the Indemnifying
Person of its obligations under this Section 7 except to the extent (if
any) that the Indemnifying Person shall have been prejudiced thereby.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be
15
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are incurred
promptly following submission of a documented request for such
reimbursement. Any such separate firm for the Underwriters and such
control persons of the Underwriters shall be designated in writing by
the Representative, any such separate firm for the Company and the
Sponsor, their directors, officers and control persons shall be
designated in writing by the Company or the Sponsor. The Indemnifying
Person shall not be liable for any settlement of any claim or
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have made two requests of an Indemnifying Person to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying
Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such Indemnifying
Person of the second aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance
with such requests prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in the first, second
and third paragraphs of this Section 7 is determined by a court to be
unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnified Person on the one hand
and the Indemnifying Person on the other hand from the offering of the
Notes 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 Indemnified Person on the one hand
and the Indemnifying Person on the other in connection with the
statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Sponsor on the
one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the Sponsor and
the total underwriting discounts and the commissions received by the
16
Underwriters bear to the aggregate public offering price of the Notes. The
relative fault of the Indemnified Person on the one hand and the
Indemnifying Person on the other 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 Sponsor, the Company or by any of the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Sponsor, the Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required
to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by it in connection with
the offering of the Notes exceeds the amount of any damages that 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. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective aggregate principal amount of Notes set forth opposite their
names in Schedule I hereto, and not joint.
(f) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
(g) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Sponsor and the
Company set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Sponsor or the
Company or any of their officers or directors or any other person
controlling the Sponsor or the Company and (iii) acceptance of and payment
for any of the Notes.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Sponsor and the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or
17
by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, or there shall have been any setting of minimum prices for trading on
either such exchange; (ii) trading of any securities of or guaranteed by the
Sponsor shall have been suspended or halted on any exchange or in any
over-the-counter market; (iii) a moratorium on commercial banking activities in
New York, Illinois or Wisconsin shall have been declared by either federal, New
York, Illinois or Wisconsin authorities; (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representative is material and
adverse and which, in the judgment of the Representative, makes it impracticable
to market the Notes on the terms and in the manner contemplated in the
Prospectus or enforce contracts for the sale of the Notes; (v) if the rating
assigned by any nationally recognized securities rating agency (to which the
Sponsor has applied for such rating) to any debt securities of or guaranteed by
the Sponsor as of the date hereof shall have been lowered since that date or if
any such rating agency shall have publicly announced that it has placed any debt
securities of or guaranteed by the Sponsor on what is commonly termed a "watch
list" for possible downgrading; or (vi) if there shall have come to the
Representative's attention any facts that would cause the Representative to
reasonably determine in good faith that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at the time
of such delivery, not misleading.
9. If on the Closing Date (i) any Underwriter shall fail or refuse to
purchase any Notes which it has agreed to purchase hereunder on such date, (ii)
such failure or refusal shall constitute a default in the performance of such
Underwriter's obligations hereunder, and (iii) the aggregate principal amount of
Notes which such defaulting Underwriter agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Notes to be
purchased by the Underwriters on such date, the other Underwriters shall be
obligated to purchase Notes which such defaulting Underwriter agreed but failed
or refused to purchase on such date. If on the Closing Date (i) any Underwriter
shall fail or refuse to purchase Notes which it has agreed to purchase hereunder
on such date, (ii) such failure or refusal shall constitute a default in the
performance of such Underwriter's obligations hereunder, (iii) the aggregate
principal amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Notes to be purchased by the
Underwriters on such date, and (iv) arrangements satisfactory to the
non-defaulting Underwriters and the Company for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Sponsor. In any such case either the Representative, the Sponsor or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven business days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
18
10. If this Agreement shall be terminated by the Underwriters, or any
one of them, because of any failure or refusal on the part of the Sponsor to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Sponsor shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, in each case, other than in connection with any default by the
Underwriters under the preceding paragraph eleven, the Sponsor agrees to
reimburse the Underwriters, severally, or such Underwriter which has so
terminated this Agreement with respect to itself, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriter(s) in connection with this Agreement or the offering contemplated
thereunder.
11. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative alone shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed, delivered by hand or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be given to the
Representative, c/o Banc One Capital Markets, Inc., Mail Suite IL1-0596, 0 Xxxx
Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (Facsimile No: (000) 000-0000), Attention:
Xxxxx X. Xxxxxxxxxx. Notices to the Sponsor and to the Company shall be given to
it at 000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 (Facsimile No.: (414)
765-8097), Attention: Xxxxxxx X. Xxxxx.
12. This Agreement shall inure to the benefit of and be binding upon the
Sponsor, the Company, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Notes from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
[SIGNATURE PAGES FOLLOW]
19
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Company, the Sponsor and the Underwriters
in accordance with its terms.
Very truly yours,
M&I DEALER AUTO SECURITIZATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
20
M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
21
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
BANC ONE CAPITAL MARKETS, INC.
As Representative
of the Underwriters
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
22
SCHEDULE I
-----------------------------------------------------------------------------------------------------------------------------
Initial Initial Initial Initial Initial
Principal Amount Principal Amount Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3 of Class A-4 of Class B
Asset-Backed Asset-Backed Asset-Backed Asset-Backed Asset-Backed
Notes Notes Notes Notes Notes
-------------- -------------- -------------- -------------- ----------------
-----------------------------------------------------------------------------------------------------------------------------
Banc One Capital $106,400,000 $ 97,600,000 $152,000,000 $54,550,000 $11,812,500
Markets, Inc.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc. $ 26,600,000 $ 24,400,000 $ 38,000,000 $13,637,500 $ 0
-----------------------------------------------------------------------------------------------------------------------------
Total: $133,000,000 $122,000,000 $190,000,000 $68,187,500 $11,812,500
-----------------------------------------------------------------------------------------------------------------------------
Purchase Price: 100.00% 99.996936% 99.988235% 99.997760% 99.996187%
-----------------------------------------------------------------------------------------------------------------------------
23
