Exhibit 1.1
XXXXXX XXXXXX XXXXXXX ASSET TRUST 1998-1
RECEIVABLE-BACKED NOTES, CLASS A-1, CLASS A-2,
CLASS A-3, and Class A-4
UNDERWRITING AGREEMENT
November [__], 1998
First Union Capital Markets, a division of Wheat First Securities, Inc.
[Other Underwriters]
c/o First Union Capital Markets, a division of Wheat First Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0610
Ladies and Gentlemen:
Mitsui Vendor Leasing Funding Corp. II, a Delaware corporation
(the "Trust Depositor"), proposes to cause Mitsui Vendor Leasing Asset Trust
1998-1 (the "Trust") to issue the asset backed notes identified in Schedule I
hereto (the "Notes"). The Notes will be issued pursuant to and secured by an
indenture (the "Indenture") to be entered into between the Trust and Bankers
Trust Company ("Bankers Trust"), as trustee (the "Indenture Trustee"), the form
of which has been filed as an exhibit to the Registration Statement (as defined
below). The Notes identified in Schedule I hereto will be sold in a public
offering through the underwriters listed in Schedule II hereto, one or more of
which may act as representative of such underwriters (any underwriter through
which Notes are sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the "Underwriters";
any representatives thereof may be referred to herein as a "Representative"). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Sale and Servicing Agreement among the Trust, the
Trust Depositor, Bankers Trust, as back-up servicer, and Mitsui Vendor Leasing
Funding Corp., as the seller and the servicer (the "Seller" or the "Servicer"),
dated as of November [__], 1998.
Section 1. Representations and Warranties. The Trust Depositor, the
Servicer and Mitsui Leasing and Development, Limited ("Mitsui"), jointly and
severally, represent and warrant to each Underwriter that:
(a) The Trust Depositor has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-1 (registration number 333-[_______]), including a form of
prospectus, relating to the Notes. The registration statement, and any
post-effective amendment thereto, each in the form heretofore delivered to you
and, excluding exhibits thereto, have been declared effective by the Commission.
As used in this Agreement, "Effective Time" means the date and the time as of
which such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and "Effective Date"
means the date of the Effective Time. The Trust Depositor has furnished to you,
for use by the Underwriters, copies of one or more preliminary prospectuses
(each, a "Preliminary Prospectus"), relating to the Notes. Except where the
context otherwise requires, the registration statement, as amended at the
Effective Time, including all documents filed as a part thereof, and including
any information contained in a prospectus subsequently filed with the Commission
pursuant to Rule 424(b) under the Securities Act and deemed to be part of the
registration statement as of the Effective Time pursuant to Rule 430A under the
Securities Act, is herein called the "Registration Statement", and the
prospectus, in the form filed by the Trust Depositor with the Commission
pursuant to Rule 424(b) under the Securities Act or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is hereinafter called the "Prospectus".
(b) The Registration Statement relating to the Notes, has been filed with
the Commission and such Registration Statement has become effective. 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 Trust Depositor, the Servicer or Mitsui, threatened by the Commission. No
order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Securities Act, and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to state 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 (and
taking into account Rule 430A of the Securities Act, which permits certain
information to be omitted from a preliminary prospectus), not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon or conformity with the
Underwriters' Information (as defined in Section 10(d) herein).
(c) The Registration Statement conforms, and any amendments or supplements
thereto and the Prospectus will conform, in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, and as of the Closing Date, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however that this representation and warranty shall not apply to (i) that part
of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Indenture Trustee under the
Trust Indenture Act or (ii) any Underwriters' Information (as defined in Section
10(d) herein) contained therein. The Indenture conforms in all respects to the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(d) Mitsui and each of its subsidiaries have been duly incorporated and are
validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so qualify or
have such power or authority could not have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of Mitsui and its subsidiaries taken as a
whole.
(e) All the outstanding shares of capital stock of the Trust Depositor have
been duly authorized and validly issued, are fully paid and nonassessable and
are owned, as described in the Prospectus, 95.1% by Xxxxxx and 4.9% by The
Sakura Bank Limited directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third party.
(f) (i) the Sale and Servicing Agreement, when duly executed by the Trust
Depositor and the Servicer and delivered by such parties, will constitute a
valid and binding agreement of the Trust Depositor and the Servicer enforceable
against them in accordance with its terms; (ii) the Indenture, when duly
executed by the Indenture Trustee and delivered by the Indenture Trustee, will
constitute a valid and binding agreement of the Trust enforceable against the
Trust in accordance with its terms; (iii) the Notes, when duly executed,
authenticated, issued and delivered as provided in the Indenture, will be duly
and validly issued and outstanding and will constitute valid and binding
obligations of the Trust entitled to the benefits of the Indenture and
enforceable in accordance with its terms; and (iv) the Indenture, the Sale and
Servicing Agreement, the Trust Agreement among the Trust Depositor, the Servicer
and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), and the
Transfer and Sale Agreement (the "Transfer and Sale Agreement") between the
Trust Depositor and the Servicer (collectively, the "Transaction Agreements")
and the Notes conform to the descriptions thereof contained in the Prospectus.
(g) The representations and warranties of the Trust Depositor in Section
2.4 of the Sale and Servicing Agreement and Section 3.2 of the Transfer and Sale
Agreement will be true and correct as of the Closing Date.
(h) The representations and warranties of the Servicer in Section 3.6 of
the Sale and Servicing Agreement and Section 3.1 of the Transfer and Sale
Agreement will be true and correct as of the Closing Date.
(i) The execution, delivery and performance of this Agreement, the
Transaction Agreements to which Mitsui or its subsidiaries, as the case may be,
is a party and the issuance and sale of the Notes, the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Mitsui or any of its subsidiaries is a party or
by which Mitsui or any of its subsidiaries is bound or to which any of the
property or assets of Mitsui or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter or by-laws
of Mitsui or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
Mitsui or any of its subsidiaries or any of their properties or assets; and
except for the registration of the Notes under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act, such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") and
applicable state securities laws in connection with the purchase and
distribution of the Notes by the Underwriters and the filing of any financing
statements required to perfect the Trust's interest in the Trust Assets, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the Transaction Agreements, the
issuance and sale of the Notes and the consummation of the transactions
contemplated hereby and thereby.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change, or any
development involving a prospective change, in or affecting the Trust Depositor,
the Servicer or Mitsui (other than as contemplated in the Registration
Statement) which would be expected to have a material adverse effect on either
(i) the ability of such person to consummate the transactions contemplated by,
or to perform its respective obligations under, this Agreement or the
Transaction Agreements or (ii) the Contracts or the Trust Assets.
(k) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act and which have not been so described or filed.
(l) Any taxes, fees and other governmental charges that are assessed and
due in connection with the execution, delivery and issuance of this Agreement or
the Transaction Agreements shall have been paid or will be paid at or prior to
the Closing Date to the extent then due.
(m) There are no legal or governmental proceedings pending to which Mitsui
or any of its subsidiaries is a party or of which any property or assets of
Mitsui or any of its subsidiaries is the subject which, individually or in the
aggregate, would (i) be reasonably likely to, if determined adversely to Mitsui
or any of its subsidiaries, have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of Mitsui
and its subsidiaries taken as a whole; and to the best of Xxxxxx's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others, (ii) assert the invalidity of this Agreement or the
Transaction Agreements, (iii) seek to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement or the
Transaction Agreements, (iii) be reasonably likely to, if determined adversely
to Mitsui or any of its subsidiaries, materially and adversely affect the
performance by the Trust Depositor, the Servicer or Mitsui of their respective
obligations under, or the validity or enforceability of, this Agreement or the
Transaction Agreements, as applicable, or (iv) seek to affect adversely the
federal income tax attributes of the Notes described in the Prospectus.
(n) Neither Mitsui nor any of its subsidiaries (i) is in violation of its
charter or by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject or (iii) is in violation in
any respect of any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject, except any violation or
default that could not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of Mitsui
and its subsidiaries taken as a whole.
(o) This Agreement has been duly authorized, executed and delivered by each
of the Trust Depositor, the Servicer and Mitsui.
(p) In accordance with General Accepted Accounting Principles, as currently
in effect, each party to the Sale and Servicing Agreement will treat the
transactions contemplated by the Sale and Servicing Agreement as a sale of the
Contracts and the Servicer's interest in the related Equipment to the Trust
Depositor.
(q) Neither the Trust Depositor nor the Servicer is required to be
registered under the Investment Company Act of 1940, as amended.
Section 2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the covenants, representations and warranties herein set forth,
the Trust Depositor agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust Depositor, the
principal amount of Notes set forth opposite such Underwriter's name in Schedule
II hereto. The purchase price for the Notes shall be as set forth in Schedule I
hereto.
Section 3. Delivery and Payment. Payment for the Notes shall be made to the
Trust Depositor or to its order by wire transfer of same day funds at the office
of [Brown & Wood in New York, New York at 9:00 A.M., New York City time], on the
Closing Date (as hereinafter defined), or at such other time on the same or such
other date as the Representative and the Trust Depositor may agree upon. The
time and date of such payment for the Notes as specified in Schedule I hereto
are referred to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City.
Payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Representative shall request in writing
not later than two full Business Days prior to the Closing Date. The Trust
Depositor shall make the Notes available for inspection by the Representative in
New York, New York not later than one full Business Day prior to the Closing
Date.
Section 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Prospectus.
Section 5. Covenants of the Trust Depositor, the Servicer and Mitsui. The
Trust Depositor, the Servicer and Mitsui, jointly and severally, covenant and
agree with each Underwriter as follows:
(a) The Trust Depositor will prepare the Prospectus in a form approved by
the Representative and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act.
(b) During the period that a prospectus relating to the Notes is required
to be delivered under the Securities Act in connection with sales of such Notes
(such period being hereinafter sometimes referred to as the "prospectus delivery
period"), before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Trust Depositor will furnish to the
Representative a copy of the proposed amendment or supplement for review and
will not file any such proposed amendment or supplement to which the
Representative reasonably objects.
(c) During the prospectus delivery period, the Trust Depositor will advise
the Representative promptly after it receives notice thereof, (i) when any
amendment to the Registration Statement shall have become effective; (ii) of any
request by the Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of 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, (iv) of the issuance by the Commission of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceedings for that purpose and (v) of any
notification with respect to any suspension of the qualification of the Notes
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and will use its best efforts to prevent the
issuance of any such stop order or suspension and, if any is issued, will
promptly use its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event occurs
as a result of which the Prospectus as then supplemented would include any
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 shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act, the Trust Depositor
promptly will prepare and file with the Commission, an amendment or a supplement
which will correct such statement or omission or effect such compliance.
(e) The Trust Depositor 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; provided,
however, that the Trust Depositor 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 Trust Depositor shall not be required to file a
general consent to service of process in any jurisdiction.
(f) The Trust Depositor will furnish to the Representative, without charge,
two copies of the Registration Statement (including exhibits thereto), one of
which will be signed, and to each Underwriter conformed copies of the
Registration Statement (without exhibits thereto) and, during the prospectus
delivery period, as many copies of any Preliminary Prospectus and the Prospectus
and any supplement thereto as the Underwriters may reasonably request.
(g) For a period from the date of this Agreement until the retirement of
the Notes, or until such time as the Underwriters shall cease to maintain a
secondary market in the Notes, whichever first occurs, the Trust Depositor will
deliver to the Underwriters (i) the annual statements of compliance, (ii) the
annual independent certified public accountants' reports furnished to the
Indenture Trustee, (iii) all documents required to be distributed to the
Noteholders of the Trust and (iv) all documents filed with the Commission
pursuant to the Exchange Act or any order of the Commission thereunder, in each
case as provided to the Indenture Trustee or filed with the Commission, as soon
as such statements and reports are furnished to the Indenture Trustee or filed
or as soon thereafter as practicable.
(h) To the extent, if any, that the rating provided with respect to the
Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Trust Depositor, the Servicer or Mitsui, as the case may be, shall
furnish such documents and take any such other actions.
(i) The Trust Depositor will, or will cause the Trust to, furnish such
information, execute such instruments and take such actions, if any, as the
Representative may reasonably request in connection with the filing with the
NASD relating to the Notes should the Representative determine that such filing
is required or appropriate.
(j) The Trust Depositor will use the net proceeds received by it from the
issuance of the Notes in the manner specified in the Prospectus under the
caption "Use of Proceeds".
(k) The Trust Depositor will cause the Trust to make generally available to
Noteholders and to the Representative as soon as practicable an earnings
statement covering a period of at least twelve months beginning with the first
fiscal quarter of the Trust occurring after the Effective Date of the
Registration Statement, which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated thereunder.
(l) For a period of 90 days from the date hereof, the Trust Depositor will
not offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offering of,
any securities collateralized by, or evidencing an ownership interest in, any
asset-backed securities of the Trust Depositor or the Trust (other than the
Notes purchased hereunder) without the prior written consent of the
Underwriters.
Section 6. Conditions to the Obligations of the Underwriters. The
respective obligations of the several Underwriters hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Trust Depositor, the Servicer and Mitsui contained herein, to
the accuracy of the statements of the Trust Depositor, the Servicer and Xxxxxx
made in any certificates pursuant to the provisions hereof, to the performance
by the Trust Depositor, the Servicer and Mitsui of their respective obligations
hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424 in the manner and within the applicable time period prescribed for such
filing by the rules and regulations of the Commission under the Securities Act
and in accordance with Section 5(a) of this Agreement; and, prior to the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceedings for such purpose
shall have been initiated or threatened 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.
(b) (i) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Transaction Agreements,
the Notes, the Registration Statement, the Preliminary Prospectus and the
Prospectus, and all other legal matters relating to such agreements and the
transactions contemplated hereby and thereby shall be reasonably satisfactory in
all material respects to counsel for the Underwriters, and the Trust Depositor
shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters and (ii) prior to or
contemporaneously with the purchase of Notes hereunder, all transactions
contemplated to be consummated under such Transaction Documents on the Closing
Date (including, without limitation, the issuance and placement of any
subordinated, privately-placed securities) shall have been so consummated to the
reasonable satisfaction of the Underwriters.
(c) Xxxxx & Xxxx shall have furnished to the Representative their written
opinion, as U.S. counsel to the Trust Depositor, the Servicer and Xxxxxx,
addressed to the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters.
(d) (x) [________________________] shall have furnished to the
Representative his written opinion, as Secretary to the Servicer, addressed to
the Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters and (y) [________________________] shall have
furnished to the Representative his written opinion, as General Counsel to the
Servicer, addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(e) Brown & Wood shall have furnished to the Representative their written
opinion, as U.S. counsel to the Trust Depositor, the Servicer and Mitsui,
addressed to the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, with respect to the
characterization of the transfer of the Trust Assets by the Servicer to the
Trust Depositor pursuant to the Transfer and Sale Agreement as a sale and the
non-consolidation of the [Trust Depositor, the Servicer and Mitsui].
(f) The Representative shall have received from Cadwalader, Xxxxxxxxxx &
Xxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Underwriters may require, and the
Trust Depositor shall have furnished to such counsel such documents as they
reasonably request for enabling them to pass upon such matters.
(g) (i) [___________] shall have furnished to the Representatives their
written opinion, as counsel to the Indenture Trustee, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters and (ii) [___________] shall have furnished to
the Representatives their written opinion, as counsel to the Owner Trustee,
addressed to the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters.
(h) Each of the Trust Depositor and the Servicer shall have furnished to
the Representative a certificate, dated the Closing Date, of any of its Chairman
of the Board, President or Vice President and its chief financial officer
stating that (i) such officers have carefully examined the Registration
Statement and the Prospectus, (ii) the Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (provided
that each of the Trust Depositor and the Servicer may exclude Underwriters'
Information (as defined in Section 10(d) herein) from such representation),
(iii) the representations and warranties of the Trust Depositor or the Servicer,
as the case may be, contained in this Agreement and the Transaction Agreements
are true and correct in all material respects on and as of the Closing Date,
(iv) the Trust Depositor or the Servicer, as the case may be, has complied in
all material respects with all agreements and satisfied in all material respects
all conditions on its part to be performed or satisfied hereunder and under such
agreements at or prior to the Closing Date, (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and is outstanding
and no proceedings for that purpose have been instituted and not terminated or,
to the best of his or her knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements, there has been no
material adverse change in the financial position or results of operations of
the Trust Depositor or the Servicer, as applicable, or any change, or any
development including a prospective change, in or affecting the condition
(financial or otherwise), results of operations or business of the Trust
Depositor or the Servicer except as set forth in or contemplated by the
Registration Statement and the Prospectus.
(i) Subsequent to the date of this Agreement, there shall not have occurred
(i) any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Trust Depositor, the
Servicer or Mitsui which materially impairs the investment quality of the Notes;
(ii) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been suspended
or limited, or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, or trading in
securities of the Trust Depositor, the Servicer or Mitsui on any exchange or in
the over-the-counter market shall have been suspended or (iii) a general
moratorium on commercial banking activities shall have been declared by Federal
or New York State authorities or (iv) an outbreak or escalation of hostilities
or a declaration by the United States of a national emergency or war or such a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public offering
or the delivery of the Notes on the terms and in the manner contemplated in the
Prospectus.
(j) With respect to the letter of [Xxxxx & Young LLP], delivered to the
Underwriters concurrently with the execution of this Agreement (the "initial
letter"), the Trust Depositor shall have furnished to the Underwriters a letter
(the "bring-down letter") of such accountants, addressed to the Underwriters and
dated the Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualifications of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
the bring-down letter (or with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of such bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
its initial letter and (iii) confirming in all material respects the conclusions
and findings set forth in its initial letter.
(k) The Underwriters shall receive evidence satisfactory to them that, on
or before the Closing Date, UCC-1 financing statements have been or are being
filed in each office in each jurisdiction in which such financing statements are
required to perfect the first priority security interests created by the
Transfer and Sale Agreement reflecting the interest of the Trust Depositor in
the Contracts and the proceeds thereof.
(l) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Notes or any of the
Trust Depositor's other debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Securities Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review (other
than an announcement with positive implications of a possible upgrading), its
rating of the Notes or any of the Trust Depositor's other debt securities.
(m) At the Closing Date, the Class A Notes shall be rated by each of
[_________] and [_________] in their highest rating category; the Class B Notes
shall be rated at least "[___]" by [________] and "[___]" by [________]; and the
Class C Notes shall be rated at least "[___]" by [_______] and "[___]" by
[--------].
(n) The Trust Depositor shall have delivered to the Representative a copy,
certified by an officer of the Trust Depositor, of the Registration Statement as
initially filed with the Commission and of all amendments thereto (including all
exhibits) and full and complete sets of all comments of the Commission or its
staff and all responses thereto with respect to the Registration Statement.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
Section 7. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representative, in its absolute discretion, by notice given
to and received by the Trust Depositor, the Servicer and Mitsui prior to
delivery of and payment for the Notes if, prior to that time, any of the events
described in Section 6(i) or Section 6(l) shall have occurred.
Section 8. Defaulting Underwriters. (a) If, on the Closing Date, any
Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements for
the purchase of such Notes by other persons satisfactory to the Trust Depositor
and the Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining non-defaulting
Underwriter shall be severally obligated to purchase the Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase on the
Closing Date in the respective proportions which the principal amount of Notes
set forth opposite the name of each remaining non-defaulting Underwriter in
Schedule I hereto bears to the aggregate principal amount of Notes set forth
opposite the names of all the remaining non-defaulting Underwriters in Schedule
I hereto; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Notes on the Closing Date if the
aggregate principal amount of Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds one-eleventh of
the aggregate principal amount of the Notes to be purchased on the Closing Date,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
in total more than [____]% of the principal amount of the Notes which it agreed
to purchase on the Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded and the remaining Underwriters or other
underwriters satisfactory to the Representative and the Trust Depositor do not
elect to purchase the Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Trust Depositor, except
that the provisions of Sections 9 and 13 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule I hereto who, pursuant to this Section 8, purchases Notes
which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If other Underwriters
are obligated or agree to purchase the Notes of a defaulting Underwriter, either
the Representative or the Trust Depositor may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the Trust Depositor or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement, and the Trust Depositor agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus that effects any such
changes.
Section 9. Reimbursement of Underwriters' Expenses. If (i) the Trust
Depositor shall fail to tender the Notes for delivery to the Underwriters for
any reason permitted under this Agreement or (ii) the Underwriters shall decline
to purchase the Notes for any reason permitted under this Agreement, the Trust
Depositor shall reimburse the Underwriters for the fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been reasonably
incurred by them in connection with this Agreement and the proposed purchase of
the Notes, and upon demand the Trust Depositor shall pay the full amount thereof
to the Representative. If this Agreement is terminated pursuant to Section 8 by
reason of the default of one or more Underwriters, the Trust Depositor shall not
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
Section 10. Indemnification.
(a) The Trust Depositor, the Servicer and Mitsui shall, jointly and
severally, indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as the
Underwriter) against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which that Underwriter may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof or supplement thereto,
or in any Preliminary Prospectus or the Prospectus or in any amendment thereof
or supplement thereto or (ii) 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 shall reimburse each Underwriter for any
legal or other expenses reasonably incurred by that Underwriter directly in
connection with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither the Trust Depositor, the Servicer nor Mitsui shall be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any Registration Statement as originally
filed or in any amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto
in reliance upon and in conformity with the Underwriters' Information (as
defined in Section 10(d) herein).
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless each of the Trust Depositor, the Servicer, Mitsui, and each of their
directors, each officer of the Trust Depositor, the Servicer or Mitsui who
signed the Registration Statement and each person, if any, who controls the
Trust Depositor, the Servicer or Mitsui within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as the Trust
Depositor, the Servicer or Mitsui, as appropriate), against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Trust Depositor, the Servicer and Mitsui may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof or supplement thereto, or in any
Preliminary Prospectus or the Prospectus or in any amendment thereof or
supplement thereto or (ii) 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, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the Underwriters' Information (as
defined in Section 10(d) herein), and shall reimburse the Trust Depositor, the
Servicer and Mitsui for any legal or other expenses reasonably incurred by the
Trust Depositor, the Servicer and Mitsui in connection with investigating or
preparing to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage or liability (or any action in
respect thereof) as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 10 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 10, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 10. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party). After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 10 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ counsel to
represent jointly the Representative and the other Underwriters (and their
respective controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought under this Section 10) if,
in the reasonable judgment of the Representative, it is advisable for the
Representative and the other Underwriters and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Trust Depositor, the Servicer and Xxxxxx.
Each indemnified party, as a condition of the indemnity agreements contained in
Sections 10(a) and 10(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) The Underwriters confirm that the information (such information, the
"Underwriters' Information") set forth (i) in the [last] paragraph on the cover
page, (ii) the [_____] paragraph on page [__] and (iii) in the [_____] and
[______] paragraphs under the caption "Plan of Distribution" in the Prospectus
is correct and constitutes the only information furnished in writing to the
Trust Depositor, the Servicer and Mitsui by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
(e) The obligations of the Trust Depositor, the Servicer and Mitsui in this
Section 10 shall be in addition to any liability which the Trust Depositor, the
Servicer or Mitsui 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 Securities Act; and the obligations of the Underwriters under
this Section 10 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 and officer of the Trust Depositor, the Servicer or
Mitsui (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Trust Depositor) and
to each person, if any, who controls the Trust Depositor, the Servicer or Mitsui
within the meaning of the Securities Act.
Section 11. Contribution. If the indemnification provided for in Section 10
is unavailable or insufficient to hold harmless an indemnified party under
Section 10(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
any action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Trust Depositor, the Servicer and
Mitsui on the one hand and the Underwriters on the other 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 Trust Depositor, the Servicer and Mitsui on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or any action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Trust Depositor, the Servicer and Mitsui on the one
hand and the Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes purchased hereunder (before deducting expenses) received by the
Trust Depositor bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes purchased hereunder, in
each case as set forth in the table on the cover page of the Prospectus. 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
Trust Depositor, the Servicer and Mitsui on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Trust Depositor, the Servicer, Mitsui and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 11 were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim damage or liability referred to above in Section 10
shall be deemed to include, for purposes of this Section 11, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim or any action. Notwithstanding the
provisions of this Section 11, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public less
the amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to indemnify and contribute as
provided in Section 10 and this Section 11 are several in proportion to their
respective underwriting obligations and not joint.
Section 12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Trust
Depositor, the Servicer and Mitsui and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Trust
Depositor, the Servicer and Mitsui and their respective successors and the
controlling persons and officers, directors referred to in Sections 10 and 11
and their heirs and legal representatives, any legal or equitable light, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
Section 13. Expenses. The Trust Depositor, the Servicer and Mitsui, jointly
and severally, agree with the Underwriters to pay (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Notes and any
taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (iii) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus and the Prospectus, all as provided in this Agreement;
(iv) the costs of reproducing and distributing this Agreement and any other
underwriting and selling group documents by mail, telex or other means of
communications; (v) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 5(e) and of
preparing, printing and distributing Blue Sky Memoranda and Legal Investment
Surveys (including the related reasonable and documented fees and expenses of
counsel to the Underwriters); (vi) any fees charged by rating agencies for
rating the Notes; (vii) all fees and expenses of the Indenture Trustee and the
Owner Trustee and each of their counsel; (viii) any transfer taxes payable in
connection with its sale of the Notes pursuant to this Agreement; and (ix) all
other costs and expenses incident to the performance of the obligations of the
Trust Depositor, the Servicer and Mitsui under this Agreement; provided that,
except as otherwise provided in this Section 13, the Underwriters shall pay
their own costs and expenses, including, the costs and expenses of their counsel
and the expenses of advertising any offering of the Notes made by the
Underwriters.
Section 14. Survival. The respective indemnities, rights of
contribution, agreements, representations, warranties and other statements of
the Trust Depositor, the Servicer, Mitsui and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or
on behalf of any Underwriter or any controlling person of any Underwriter, or
the Trust Depositor, the Servicer or Mitsui, or any officer, director or
controlling person of the Trust Depositor, the Servicer or Mitsui, and shall
survive delivery of and payment for the Notes.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Trust Depositor, the Servicer and Mitsui in subsection (a) of
Section 10 hereof, the representations and warranties in subsections (b) and (c)
of Section 1 hereof and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus contained in any certificate furnished
by the Trust Depositor, the Servicer or Mitsui pursuant to Section 6 hereof,
insofar as they may constitute a basis for indemnification for liabilities
(other than payment by the Trust Depositor, the Servicer or Mitsui, of expenses
incurred or paid in the successful defense of any action, suit or proceeding)
arising under the Securities Act, shall not extend to the extent of any interest
therein of a controlling person or partner of an Underwriter who is a director,
officer or controlling person of the Trust Depositor when the Registration
Statement has become effective or who, with his or her consent, is named in the
Registration Statement as about to become a director of the Trust Depositor,
except in each case to the extent that such interest shall have been determined
by a court of appropriate jurisdiction as not against public policy as expressed
in the Securities Act. Unless in the opinion of counsel for the Trust Depositor
the matter has been settled by controlling precedent, the Trust Depositor will,
if a claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question of whether such interest is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Section 15. Notices. All communication hereunder shall be in writing and,
(i) if sent to the Underwriters will be mailed, delivered or telecopied and
confirmed to them at First Union Capital Markets, a division of Wheat First
Securities, Inc., Asset Securitization Division, 000 Xxxxx Xxxxxxx Xxxxxx, XX-0,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Telecopy Number: (000) 000-0000; provided,
however, that any notice to an Underwriter pursuant to Section 9(c) shall be
delivered or sent by mail, delivery or telecopy to such Underwriter at its
address set forth in its acceptance telex to the Representative, which address
will be supplied to any other party hereto by the Representative upon request;
(ii) if sent to the Trust Depositor, will be mailed, delivered or telecopied and
confirmed to them at the address of the Trust Depositor set forth in the
Registration Statement, Attention: [Chief Financial Officer]; (iii) if sent to
the Servicer, will be mailed, delivered or telecopied and confirmed to them at
the address of the Servicer set forth in the Registration Statement, Attention:
[Vice President and Treasurer] and (iv) if sent to Xxxxxx, will be mailed,
delivered or telecopied and confirmed to them at the address of Mitsui set forth
in the Registration Statement, Attention: [Vice President and Treasurer]. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof. The Trust Depositor, the Servicer and Mitsui shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by the Representative.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 17. Submission to Jurisdiction; Appointment of Agent for Service;
Currency Indemnity.
(a) To the fullest extent permitted by applicable law, each of the Trust
Depositor, the Servicer and Mitsui irrevocably submits to the jurisdiction of
any Federal or State court in the City, County and State of New York, United
States of America, in any suit or proceeding based on or arising under this
Agreement, and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. Each of the Trust Depositor, the
Servicer and Mitsui hereby irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. Each of the
Trust Depositor, the Servicer and Mitsui hereby irrevocably designates and
appoints [CT Corporation] (the "Process Agent"), as its authorized agent upon
whom process may be served in any such suit or proceeding, it being understood
that the designation and appointment of [CT Corporation] as such authorized
agent shall become effective immediately without any further action on the part
of the Trust Depositor, the Servicer or Mitsui. Each of the Trust Depositor, the
Servicer and Mitsui represents to each Underwriter that it has notified the
Process Agent of such designation and appointment and that the Process Agent has
accepted the same in writing. Each of the Trust Depositor, the Servicer and
Mitsui hereby irrevocably authorizes and directs the Process Agent to accept
such service. Each of the Trust Depositor, the Servicer and Xxxxxx further
agrees that service of process upon the Process Agent and written notice of said
service to the Trust Depositor, the Servicer or Mitsui, as the case may be,
mailed by first class mail or delivered to the Process Agent at its principal
office, shall be deemed in every respect effective service of process upon the
Trust Depositor, the Servicer or Mitsui, as the case may be, in any such suit or
proceeding. Nothing herein shall affect the right of any Underwriter or any
person controlling any Underwriter to serve process in any other manner
permitted by law. Each of the Trust Depositor, the Servicer and Xxxxxx agrees
that a final action in any such suit or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
lawful manner.
(b) The obligation of the parties to make payments hereunder is in U.S.
dollars (U.S. dollars and such other currencies referred to above being called
the "Obligation Currency") and such obligation shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency or any other
realization in such other currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the effective receipt by the
party which is to receive such payment of the full amount of the Obligation
Currency expressed to be payable hereunder, and the party liable to make such
payment agrees to indemnify the party which is to receive such payment (as an
additional, separate and independent cause of action) for the amount (if any) by
which such effective receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and such obligation to
indemnify shall not be affected by judgment being obtained for any other sums
due under this Agreement.
Section 18. 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 instrument.
Section 19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
Section 20. Effectiveness. This Agreement shall become effective upon
execution and delivery.
If you are in agreement with the foregoing, please sign the counterpart
hereof and return it to the Trust Depositor, whereupon this letter and your
acceptance shall become a binding agreement among the Trust Depositor, the
Servicer, Mitsui and the several Underwriters.
Very truly yours,
MITSUI VENDOR LEASING FUNDING CORP. II
By:
--------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXXXXX (U.S.A.) INC.
By:
--------------------------------------
Name:
Title:
MITSUI LEASING AND DEVELOPMENT, LIMITED
By:
--------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
FIRST UNION CAPITAL MARKETS, A DIVISION
OF WHEAT FIRST SECURITIES, INC.,
as Representative of the Underwriters
By:
--------------------------------------
Name:
Title:
SCHEDULE I
Date of Underwriting Agreement: November [__], 1998
Underwriters: First Union Capital Markets,
a division of Wheat First
Securities, Inc.
Representative and Address: First Union Capital Markets, a
division of Wheat First
Securities, Inc.
One First Union Center, TW-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Title, Purchase Price and Description of Notes:
Class A-1 Notes
---------------
Title: $[_______] [_____]% Class A-1 Receivable-
Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting discount: [______]%
Payment Dates: The 25th calendar day of each month (if such day
is not a Business Day, the next succeeding
Business Day), commencing November 25, 1998
Maturity: [_________] [____] Payment Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any Payment Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
Class A-2 Notes
---------------
Title: $[___________] [_____]% Class A-2
Receivable-Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting discount: [______]%
Payment Dates: The 25th calendar day of each month (if such
day is not a Business Day, the next
succeeding Business Day), commencing
November 25, 1998
Maturity: [_________] [____] Payment Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any Payment Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
Class A-3 Notes
---------------
Title: $[___________] [_____]% Class A-3 Receivable-
Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [______]%
Payment Dates: The 25th calendar day of each month (if
such day is not a Business Day, the
next succeeding Business Day), commencing
November 25, 1998
Maturity: [_________] [____] Payment Date
Redemption
provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any Payment Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
Class B Notes
-------------
Title: $[__________] [_____]% Class B Receivable-
Backed Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [______]%
Payment Dates: The 25th calendar day of each month (if such
day is not a Business Day, the
next succeeding Business Day), commencing
November 25, 1998
Maturity: [_________] [____] Payment Date
Redemption
provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any Payment Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
Class C Notes
-------------
Title: $[_________] [_____]% Class C Receivable-
Backed Notes, Series 1998-1
Price to public: [______]%
Purchase price: [______]%
Underwriting
discount: [______]%
Payment Dates: The 25th calendar day of each month (if such
day is not a Business Day, the next succeeding
Business Day), commencing November 25, 1998
Maturity: [________] [____] Payment Date
Redemption
provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any Payment Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
Closing Date, Time and Location:
Date: November [__], 1998
Time: [9:00 New York City time]
Location: [Brown & Wood, _________________________,
New York, New York]
SCHEDULE II
UNDERWRITERS
$[__________] Principal Amount of Class A-1 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat
First Securities, Inc. $ __________
[Other Underwriters] __________
----------
----------
UNDERWRITERS
$[__________] Principal Amount of Class A-2 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of
Wheat First Securities, Inc. $ __________
[Other Underwriters] __________
----------
----------
UNDERWRITERS
$[__________] Principal Amount of Class A-3 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of
Wheat First Securities, Inc. $ __________
[Other Underwriters] __________
----------
----------
UNDERWRITER
$[__________] Principal Amount of Class B Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of
Wheat First Securities, Inc. $__________
UNDERWRITER
$[__________] Principal Amount of Class C Notes to be Purchased
Principal Amount
-----------------
First Union Capital Markets, a division of
Wheat First Securities, Inc. $__________
