EXHIBIT 1.1
____________________ 200_-_
[$__________ Class A-1 _____% Asset Backed Notes
$__________ Class A-2 _____% Asset Backed Notes
$__________ Class A-3 _____% Asset Backed Notes
$__________ Asset Backed Certificates]/1//
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[$__________ Asset Backed Certificates, Class A
$__________ Asset Backed Certificates, Class B]
M&I Dealer Auto Securitization, LLC
(Seller)
FORM OF UNDERWRITING AGREEMENT
__________ __, 200_
___________________________________
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
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_________________________________
_________________________________
_________________________________
Ladies and Gentlemen:
M&I Dealer Auto Securitization, L.L.C., a Delaware limited liability
company (the "Seller") and a wholly owned, special purpose, bankruptcy remote
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subsidiary of M&I Xxxxxxxx & Xxxxxx Bank, a Wisconsin banking association ("M&I
---
Bank"), proposes to cause M&I Auto Receivables [ ] [200_] - [ ] (the "Issuer")
---- ------
to sell to the Underwriters listed in Schedule I hereto (the "Underwriters")
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[$__________ aggregate principal amount of Class A-1 _____% Asset Backed Notes
(the "Class A-1 Notes"), $__________ aggregate principal amount of Class A-2
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_____% Asset Backed Notes (the "Class A-2 Notes"), $__________ aggregate
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principal amount of Class A-3 _____% Asset Backed Notes (the "Class A-3 Notes"
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and, together with the
___________________________
/1// This form of Underwriting Agreement contains alternative provisions that
relate to offerings of Asset Backed Certificates, on the one hand, and Asset
Backed Notes and Assets Backed Certificates, on the other hand.
Class A-1 Notes and the Class A-2 Notes, the "Notes"),set forth in Section 1
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hereof] [the aggregate principal amount of ___% Asset Backed Certificates, Class
A (together with the Tail Certificate described below, the "Class A
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Certificates") and the aggregate principal amount of ___% Asset Backed
------------
Certificates, Class B (the "Class B Certificates", and together with the Class A
--------------------
Certificates, the "Securities" or the "Certificates"), set forth in Section 1
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hereof]. [The Issuer also will issue $__________ aggregate principal amount of
certificates (the "Certificates" and, together with the Notes, the
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"Securities"). Each Certificate will represent a fractional undivided interest
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in the Issuer.] Each Note will be secured by the assets of the Issuer pursuant
to the Indenture (as hereinafter defined).
The assets of the Issuer (the "Issuer Property") include, among other
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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 certain monies received under the Receivables [on and] after
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__________ __, 200_ (the "Cutoff Date") and the other property and the proceeds
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thereof to be conveyed to the Issuer pursuant to a [Sale and Servicing
Agreement][Pooling and Servicing Agreement] to be dated as of the Closing Date
(the ["Sale and Servicing Agreement"]["Pooling and Servicing Agreement"] among
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the Issuer, the Seller and M&I Bank, as servicer (the "Servicer"). Pursuant to
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the [Sale and Servicing Agreement][Pooling and Servicing Agreement], the Seller
will sell the Receivables to the Issuer and the Servicer will service the
Receivables on behalf of the Issuer. The Receivables will be sold to the Seller
pursuant to a Purchase Agreement, to be dated as of the Closing Date (the
"Purchase Agreement") between M&I Bank, as the originator/seller and the Seller.
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[In addition, pursuant to an Administration Agreement to be dated as of the
Closing Date (the "Administration Agreement") among the Issuer, M&I Bank and
------------------------
____________ (the "Owner Trustee"), the Servicer will agree to perform certain
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administrative tasks on behalf of the Issuer imposed on the Issuer under the
Indenture.] The Notes will be issued pursuant to an Indenture to be dated as of
the Closing Date (the "Indenture") between the Issuer and the Indenture Trustee.
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The Certificates will be issued pursuant to [an] [a] [Amended and Restated]
Issuer Agreement to be dated as of the Closing Date (the "Issuer Agreement")
----------------
between the Seller and the Owner Issuer.] [The Class A Certificates will be
issued in an aggregate principal amount of $__________, which is equal to
approximately ___% of the aggregate principal balance of the Receivables as of
the Cutoff Date, and $__________ aggregate principal amount of the Class A
Certificates (the "Tail Certificate") will initially be retained by the Seller.
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The Class B Certificates will be issued in an aggregate principal amount of
$__________, which is equal to approximately ___% of the aggregate principal
balance of the Receivables as of the Cutoff Date. Payments in respect of the
Class B Certificates are, to the extent provided in the Pooling and Servicing
Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement.]
The Seller 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
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Commission (the "Commission") a registration statement (Reg. No. 333-_____),
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including a prospectus, relating to the Securities. [M&I Bank has also prepared
an ABS term sheet for the [Securities] [Notes] (the "ABS [Security] [Note] Term
--------------------------
Sheet") in conformity in all material respects with the Act, the Rules and
-----
Regulations and all requirements applicable to ABS term sheets and computational
materials set forth in no-action letters issued by the Commission.] 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," 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 [Securities] [Notes] and the offering thereof (the "Prospectus
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Supplement") which prospectus is first filed on or after the date of this
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Agreement in accordance with Rule 424(b) is referred to in this Agreement as the
"Prospectus".
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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
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Registration Statement or the most recent post-effective amendment thereto
became effective. "Execution Time" shall mean the date and time that this
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Agreement is executed and delivered by the parties hereto. "Rule 424" refers to
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such rule under the Act. "Basic Documents" shall mean the Purchase Agreement,
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[the Reserve Account Agreement,] the [Pooling and Servicing Agreement] [Sale and
Servicing Agreement], [the Indenture, the Issuer Agreement, the Administration
Agreement, the Certificate Purchase Agreement with respect to the Certificates
(the "Certificate Purchase Agreement"),] this Agreement, the Securities and
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[each] [the] Depository Agreement. "Participating Entity" means each of the
--------------------
Seller and M&I Bank. "Securityholder" means any Noteholder and any
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Certificateholder and "Security Owner" means the beneficial owner of any Note or
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Certificate. To the extent not defined herein, capitalized terms used herein
have the meanings assigned to such terms in [the Pooling and Servicing
Agreement] [Appendix X to the Sale and Servicing Agreement].
1. The Seller 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
Seller, the respective aggregate principal amounts and classes of [Securities]
[Notes] set forth opposite such Underwriter's name in Schedule I hereto. The
purchase price for [Securities] [Notes] of any class will be the applicable
percentage set forth on Schedule I hereto of the aggregate principal amount of
such class purchased[, plus, in each case, accrued interest, if any, on the
principal amount thereof at the applicable [Interest Rate or] Certificate Rate
(as such terms are defined in the Prospectus), as the case may be, from (but
excluding) __________, 200_, to (and including) the Closing Date.]
2. The Seller understands that the Underwriters intend (i) to make a
public offering of the [Securities] [Notes] purchased by the Underwriters
hereunder as soon after the Registration
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Statement and this Agreement have become effective as in the judgment of the
Seller and the Representative is advisable and (ii) initially to offer the
[Securities] [Notes] purchased by the Underwriters hereunder upon the terms set
forth in the Prospectus.
3. Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made to the Seller or to its order by wire transfer of same
day funds at the office of Xxxxx, Brown & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 at [10:00 A.M.], Chicago, Illinois, time on __________
__, 200_, 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 Seller 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 __________,
__________.
Payment for the [Securities] [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 [Securities]
[Notes] in definitive 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, 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 [Securities] [Notes]
duly paid by the Seller. [The Seller shall make such definitive certificates
representing the [Securities] [Notes] available for inspection by the
Representative at the office of ____________________ not later than [1:00 P.M.],
[City, State] time, on the Business Day prior to the Closing Date.]
4. The Participating Entities represent and warrant (jointly and severally)
to and agree 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
[Securities] [Notes], has been filed with the Commission and such
Registration Statement as amended has become effective.
(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 such Participating Entity, 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
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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
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any statements or omissions made in reliance upon and in conformity with
information furnished to the Participating Entities in writing by any
Underwriter through the Representative expressly for use in the Prospectus
(collectively, "Underwriter Information"). Each Participating Entity hereby
-----------------------
agrees with the Underwriters that, for all purposes of this Agreement, the
only Underwriter Information furnished consists of [the statements in the
first sentence of the [eighth] paragraph under the caption "Underwriting"
in the Prospectus Supplement regarding the Underwriters' intention to make
a market in the [Securities] [Notes]].
(d) The computer tapes with respect to the Receivables to be sold to
the Issuer created as of the Cutoff Date (the "Computer Tapes"), and made
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available to the Representative by M&I Bank [and __________, respectively,]
were complete and accurate in all material respects as of the date thereof.
(e) Such Participating Entity is either a limited liability company
(in the case of the Seller) or a banking association (in the case of M&I
Bank) 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 Issuer Property. Such
Participating Entity has the power, authority and legal right to execute,
deliver and perform this Agreement and each of the other Transaction
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 Issuer Property.
(f) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Transaction 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
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Transaction Documents. The execution, delivery and performance by such
Participating Entity of each of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by such Participating Entity by all
necessary action. The Transaction Documents to which such Participating
Entity is a party have been duly executed and delivered by such
Participating Entity and, when executed and delivered by such Participating
Entity and the other parties thereto, each of such Transaction Documents
will constitute a legal, valid and binding obligation of such Participating
Entity, enforceable against such Participating Entity 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. The Securities and the Transaction
Documents conform to the descriptions thereof in the Prospectus in all
material respects. [The Notes and the Indenture have been duly executed and
delivered by the Issuer and, when the Indenture is executed and the Notes
are authenticated by the Indenture Trustee, the Indenture and the Notes
will constitute legal, valid and binding obligations of the Issuer,
enforceable in accordance with their 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 such Participating Entity of any of the
Transaction 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.
(h) Such Participating Entity is not in violation of its
organizational documents or bylaws 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 Transaction Documents.
The execution, delivery and performance by such Participating Entity of the
Transaction 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 Transaction Documents) upon any of
its properties pursuant to the terms of, (A) the organizational documents
or bylaws of such
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Participating Entity, (B) any material indenture, contract, lease,
mortgage, deed of Issuer or other instrument or agreement to which such
Participating Entity is a party or by which such Participating Entity is
bound, which violation or default would have a material adverse effect on
the transactions contemplated herein or in the Transaction Documents or (C)
any law, order, rule or regulation applicable to such Participating Entity
of any regulatory body, any court, administrative agency or other
governmental instrumentality having jurisdiction over such Participating
Entity.
(i) There are no proceedings or investigations pending, or to the
knowledge of such Participating Entity threatened, to which such
Participating Entity 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 Prospectus and are not so
disclosed, (ii) asserting the invalidity of this Agreement or any of the
Transaction 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 Transaction Documents, (iv) seeking any
determination or ruling that might materially and adversely affect the
performance by such Participating Entity of its obligations under, or the
validity or enforceability of, this Agreement or any of the Transaction
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 required
to be described in the Prospectus pursuant to the Act and the Rules and
Regulations which are not filed or described as required.
(k) The representations and warranties of M&I Bank contained in the
Transaction Documents to which it is a party are true and correct as of the
dates of the respective Transaction Documents in all material respects.
(l) By assignment and delivery of each of the Receivables to the
Seller by M&I Bank as of the Closing Date, M&I Bank will transfer title in
such Receivables to the Seller, subject to no Lien prior or equal to the
ownership interest granted to M&I Bank or the Seller, as applicable.
(m) ____________________ are independent public accountants with
respect to the Participating Entity within the meaning of the Act and the
Rules and Regulations.
5. Each Participating Entity, as applicable, covenants and agrees
(severally and not jointly) with the Underwriters that:
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(c) Prior to the termination of the offering of the [Securities]
[Notes], the Seller 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 Seller 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 the Seller will cause the
ABS [Security] [Note] Term Sheet to be filed with the Commission pursuant
to a Current Report on Form 8-K within the second business day following
the first day the ABS [Security] [Note] Term Sheet has been sent to a
prospective investor in the [Securities] [Notes]] and will provide
evidence satisfactory to the Underwriters of such timely filing. The
Seller 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) [and the ABS [Security] [Note] Term Sheet shall have been
filed pursuant to a Current Report on Form 8-K], (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 Seller 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 Seller 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 Seller 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 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 7 hereof.
(d) The Seller 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 Participating Entities
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. [The Seller will furnish or cause
to be furnished to the Representative copies of all reports on Form SR
required by Rule 463 under the Act.]
(e) If during such period of time after the first date of the public
offering of the [Securities] [Notes] as in the opinion of counsel for the
Underwriters a prospectus relating to the [Securities] [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
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materially misleading, or it is necessary to amend or supplement the
Prospectus to comply with applicable law, the Participating Entities will
forthwith prepare and furnish, at the expense of the Participating
Entities, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to the Participating Entities)
to which [Securities] [Notes] may have been sold by the [Representative on
behalf of 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 7.
(f) The Seller will endeavor to qualify the [Securities] [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 [Securities] [Notes] and the Participating Entities will pay all
reasonable fees and expenses (including fees and disbursements of counsel
to the Representative to the extent provided in Section 6(iii) hereof)
incurred in connection with such qualification and in connection with the
determination of the eligibility of the [Securities] [Notes] for
investment under the laws of such jurisdictions as the Representative may
designate; provided, however, that the Seller shall not be obligated to
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qualify to do business in any jurisdiction in which it is not currently so
qualified; and provided further that the Seller shall not be required to
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file a general consent to service of process in any jurisdiction.
(g) [On or before __________, 200_ ] the Participating Entities will
cause the Issuer to make generally available to Securityholders and to the
Representative all financial information required to be sent to
Securityholders pursuant to the Transaction Documents.
(h) For the period from the date of this Agreement until the
retirement of all of the Securities the Participating Entities 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
Transaction Documents and the annual independent certified public
accountant's servicing reports furnished to the [Owner] Trustee [or
Indenture Trustee] pursuant to the Transaction 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 Transaction 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 Issuer or the Securities, (iv)
copies of each Opinion of Counsel and
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Officer's Certificate delivered pursuant to the Transaction Documents,
as soon as available, and (v) from time to time, such other information
concerning the Issuer or the Participating Entities as the
Representative may reasonably request.
(i) If required, the Seller will register the [Securities]
[Notes] pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to _______ __, 200_.
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(j) To the extent, if any, that the ratings provided with
respect to the [Securities] [Notes] by the Rating Agencies are
conditional upon the furnishing of documents or the taking of any other
action by any Participating Entity, the Seller shall furnish or cause
to be furnished such documents and use reasonable efforts to take any
such other action.
(k) The Participating Entities will not, 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 any of the Participating Entities for a period of thirty days
following the commencement of the offering of the [Securities] [Notes]
to the public.
6. The Participating Entities 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 [Securities] [Notes], (ii)
incident to the preparation, printing (or otherwise reproducing), filing and
delivery under the Act of the Registration Statement[,] [and] the Prospectus
[and any preliminary prospectus] [and the ABS [Security] [Note] Term Sheet]
(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 [Securities] [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 Transaction Documents and any Blue Sky
Memorandum and the furnishing to the Underwriters and dealers of copies of the
Registration Statement[, the ABS [Security] [Note] Term Sheet] [, 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 Participating Entities and accountants [and all fees and
disbursements of Underwriters' counsel other than a portion of such fees and
disbursements to be agreed between the Participating Entities and the
Representative], (vii) any fees and
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expenses payable to the Clearing Agency, (viii) any fees and expenses payable to
the Rating Agencies in connection with the rating of the [Securities] [Notes]
and (ix) any fees and expenses of the [Owner] Trustee [, the Indenture Trustee
and ____________________, as the collateral agent].
7. The obligations of the Underwriters to purchase and pay for the
[Securities] [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 Participating Entities herein, to the accuracy of
the statements of officers of the Participating Entities made in any writing
delivered at the Closing pursuant to the provisions hereof, to the performance
by each of the Participating Entities 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 Participating Entities and at the Closing Date, the
Participating Entities 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 the Participating Entities.
(b) The Prospectus used to confirm sales of [Securities]
[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 5(a) of this
Agreement; [the ABS [Security] [Note] Term Sheet shall have been filed
with the Commission pursuant to a Current Report on Form 8-K within two
business days following the first day the ABS [Security] [Note] Term
Sheet is first sent to prospective investors in the [Securities]
[Notes];] 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 Seller,
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 each Participating Entity,
representing and warranting that, as of the Closing Date, the
representations and warranties of each Participating Entity in this
Agreement and the Transaction Documents are true and correct, that each
Participating Entity has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder or under
the Transaction Documents at or prior to the Closing Date, and that
since __________ __, 200_, 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 Issuer,
-11-
any Participating Entity or its Affiliates which materially impairs
the investment quality of the [Securities] [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 Issuer,
any Participating Entity or its Affiliates which, in the reasonable
judgment of the Representative, materially impairs the investment
quality of the [Securities] [Notes] or makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the [Securities] [Notes], (ii) any downgrading in the rating of any
debt securities of any Participating Entity 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) ____________________, special counsel to M&I Bank, 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 [and securities law
matters] relating to M&I Bank.
(f) Xxxxx, Xxxxx & Xxxxx, special counsel to the Participating
Entities, 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 such matters as
the Representative may request.
(g) The Representative shall have received an opinion of
_______________, counsel to the Underwriters dated the Closing Date,
with respect to the validity of the Securities and such other related
matters as the Representative shall require and the Participating
Entities shall have furnished or caused to be furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(h) The 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.
[(i) 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.]
[(j) ____________________ shall have furnished its written
opinion, dated the Closing Date, that the Issuer and the Indenture
Trustee will have a first priority
-12-
perfected security interest in the Financed Vehicles located in the
State of __________ and such opinion shall be satisfactory in form and
substance to the Representative.]
(k) 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.
(l) [The Class A-1 Notes [shall have been rated in the highest
possible short term rating category and the] [,] Class A-2 Notes and
Class A-3 Notes shall have been rated in the highest possible
long-term rating category by each of the Rating Agencies and the
Certificates shall have been rated at least in the "A" category or its
equivalent by each of the Rating Agencies.] [The Class A Certificates
shall have been rated in the highest category, and the Class B
Certificates shall have been rated at least in the "A" category or its
equivalent by _______________________________ and ____________________
_______________, _____________________________]
(m) On the Closing Date, the representations and warranties of
the Participating Entities herein and in the Transaction Documents
will be true and correct in all material respects.
(n) 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 Transaction Documents shall have been paid
by the Participating Entities at or prior to the Closing Date.
(o) The Seller shall have made or caused to be made a deposit in
the Reserve Account in the amount of the Reserve Account Initial
Deposit.
(p) 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 Secretaries of State of [list of
filing locations] reflecting the interest of each of the Seller[,]
[and] the Issuer [and the Indenture Trustee] in the Receivables, the
other Issuer Property and the proceeds thereof.
8. The Participating Entities and the Underwriters agree to the
following indemnification and contribution provisions:
(a) Each Participating Entity jointly and severally (except as
otherwise set forth at the conclusion of this paragraph) agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls each Underwriter within the meaning
-13-
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 Prospectus (as amended or supplemented if the
Participating Entities shall have furnished such amendments or
supplements thereto) [or any preliminary prospectus] [or the ABS
[Security] [Note] Term Sheet,] or caused by any omission or alleged
omission to state therein a 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, 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] [the
ABS [Security] [Note] Term Sheet] 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 Securities if such untrue statement or omission or
alleged untrue statement or omission made in [such preliminary
prospectus] [the ABS [Security] [Note] Term Sheet] is eliminated or
remedied in the Prospectus (as amended or supplemented if the
Participating Entities 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 Securities to such
person to the extent required by law] [, and, provided further, that
-------- -------
to the extent that any such losses, claims, damages or liabilities
incurred by such Underwriter or such controlling person shall have
been caused by such an untrue statement or alleged untrue statement
(i) relating to Receivables originated by M&I Bank or its Affiliates
in its capacity as an originator or as to any such Receivables
assigned and sold by M&I Bank to the Seller, (ii) with respect to
__________ as the [sub]servicer of such Receivables or relating to any
such Receivables [sub]serviced by __________, or (iii) with respect to
__________ as the purchaser of any such Receivables from the Seller or
the Issuer upon a breach of a representation, warranty or covenant or
as to any Receivables so purchased, in each case as provided by the
applicable Transaction Documents, than and in each such event
__________ shall be solely liable to such Underwriter and such
controlling persons for all such losses, claims, damages and
liabilities incurred by each of them in accordance with the terms and
provisions of this Section 8, and Participating Entities shall not
have any liability whatsoever to such Underwriter or such controlling
person for or to the extent of any such losses, claims, damages or
liabilities].
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Participating Entities, each director
and officer of the Participating Entities and each person who controls
any Participating Entity within the meaning of Section 15
-14-
of the Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Participating Entities to each
Underwriter, but only with reference to Underwriter Information
delivered by such Underwriter.
(d) 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 8 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 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 Participating Entities, their directors,
officers and control persons shall be designated in writing by M&I
Bank. 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
-15-
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.
(e) If the indemnification provided for in the first and second
paragraphs of this Section 8 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
Securities 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 Underwriters on
the one hand and the Participating Entities on the other shall be
deemed to be in the same respective proportions as the total
underwriting discounts and the commission received by the Underwriters
and the net proceeds from the offering (before deducting expenses)
received by the Participating Entities bear to the aggregate offering
price of the Securities. 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 Participating Entities 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.
(f) The Participating Entities and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Section 8 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 8, in no event shall an Underwriter be required to contribute
any amount in excess of the amount by which the total
-16-
underwriting discounts and commissions received by it in connection
with the offering of the [Securities] [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 8 are several in proportion to the respective
aggregate principal amount of Securities set forth opposite their
names in Schedule I hereto, and not joint.
(g) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to
above.
(h) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Participating
Entities 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 any Participating Entity or any of their officers or
directors or any other person controlling any Participating Entity and
(iii) acceptance of and payment for any of the Securities.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Participating Entities, 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 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 any Participating Entity 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 __________
shall have been declared by either federal, New York, Illinois or __________
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
[Securities] [Notes] on the terms and in the manner contemplated in the
Prospectus or enforce contracts for the sale of the [Securities] [Notes]; (v) if
the rating assigned by any nationally recognized securities rating agency (to
which any Participating Entity has applied for such rating) to any debt
securities of or guaranteed by any Participating Entity 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
any Participating Entity 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
-17-
to a purchaser of [Securities] [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.
10. If on the Closing Date (i) any Underwriter shall fail or refuse to
purchase any [Securities] [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 [Securities] [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 [Securities] [Notes] to be purchased by the
Underwriters on such date, the other Underwriters shall be obligated to purchase
[Securities] [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 [Securities] [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 [Securities] [Notes] with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
[Securities] [Notes] to be purchased by the Underwriters on such date, and (iv)
arrangements satisfactory to the non-defaulting Underwriters and the
Participating Entities for the purchase of such [Securities] [Notes] are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, or any Participating
Entity. In any such case either the Representative or any Participating Entity
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.
11. If this Agreement shall be terminated by the Underwriters, or any one
of them, because of any failure or refusal on the part of any Participating
Entity to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any Participating Entity 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 Participating Entities agree 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.
12. 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
-18-
Representative, c/o ____________________________________________________________
(Facsimile No.: (___) ___-____), Attention: ____________________. Notices to the
M&I Bank shall be given to them at __________, ____________________ (Facsimile
No.: (___) ___-____), Attention: ____________________. Notices to the Seller
shall be given to it at __________, ____________________ (Facsimile No.: (___)
___-____), Attention: ____________________.
13. This Agreement shall inure to the benefit of and be binding upon
M&I Bank, the Seller, 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 [Securities] [Notes] from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
14. 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 Seller, M&I Bank and the
Underwriters in accordance with its terms.
Very truly yours,
M&I DEALER AUTO SECURITIZATION, L.L.C.
By:_____________________________________
Name:
Title:
S-1
M&I XXXXXXXX & XXXXXX BANK
By:________________________________________
Name:
Title:
S-2
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
______________________________________
As Representative
of the Underwriters
By:___________________________________
Name:
Title:
S-3
SCHEDULE I
Initial Initial Initial
Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3
Asset-Backed Asset-Backed Asset-Backed
Notes Notes Notes
------- ------- -------
$ $ $
$ $ $
============ ============ =============
Total: $ $ $
Purchase Price: % % %
I-1
