Exhibit 1.1
NORWEST AUTO TRUST 199_-_
___% CLASS A-1 ASSET BACKED NOTES
___% CLASS A-2 ASSET BACKED NOTES
___% ASSET BACKED CERTIFICATES
NORWEST AUTO RECEIVABLES CORPORATION
(SELLER)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(SERVICER)
UNDERWRITING AGREEMENT
New York, New York
_________ __, 199_
__________________________,
As Representative (the "Representative")
of the Several Underwriters
listed on Schedule I hereto
Ladies and Gentlemen:
Norwest Auto Receivables Corporation, a Delaware corporation (the "SELLER")
and a wholly-owned limited-purpose subsidiary of Norwest Corporation, a Delaware
corporation, proposes to sell to the underwriters named in Schedule I hereto
(the "UNDERWRITERS") $___________ aggregate principal amount of ___% Class A-1
Asset Backed Notes (the "CLASS A-1 NOTES"), $_________ aggregate principal
amount of ___% Class A-2 Asset Backed Notes (the "CLASS A-2 NOTES," and,
together with the Class A-1 Notes, the "NOTES") and $_________ aggregate
principal amount of certificates designated % Asset Backed Certificates,
(the "CERTIFICATES" and, together with the Notes, the "SECURITIES") issued by
the Norwest Auto Trust 199_ -_ (the "TRUST"). Each Note will be secured by the
Contracts (as hereinafter defined) and certain other property of the Trust and
each Certificate will represent a fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, a pool of motor
vehicle installment sales contracts and installment loans secured by new and
used automobiles and light-duty trucks (the "CONTRACTS") and certain monies
received thereunder on or after _______ __, 199__ (the "CUTOFF DATE"), such
Contracts to be sold to the Trust by the Seller and to be serviced for the Trust
by the Servicer.
Each Affiliate will convey to the Seller the Contracts owned by it pursuant
to a Purchase Agreement to be dated as of _________ __, 199_ between such
Affiliate and the Seller. The Contracts will be conveyed by the Seller to the
Trust pursuant to a Sale and Servicing Agreement to be dated as of _______ __,
199_ (the "SALE AND SERVICING AGREEMENT"), among the Seller, Norwest Bank
Minnesota, N.A., a national banking association, as servicer (the "SERVICER"),
and ____________, as trustee (the "TRUSTEE"). The Notes will be issued pursuant
to an Indenture to be dated as of _________ __, 199_ (the "INDENTURE"), between
the Trust and ______________, a _____________, as indenture trustee (the
"INDENTURE TRUSTEE"). The Servicer will agree to service the Contracts and to
perform certain administrative tasks pursuant to an Administration Agreement to
be dated as of _________, __, 199_ (the "ADMINISTRATION AGREEMENT"). The
Certificates, each representing a fractional undivided interest in the Trust,
will be issued pursuant to a Trust Agreement to be dated as of ___________ __,
199_ (the "TRUST AGREEMENT"), between the Seller and the Trustee. Capitalized
terms used herein without definition shall have the meanings set forth in the
Sale and Servicing Agreement. References herein to "you" are to the
Representative. Norwest Corporation ("Norwest") has agreed to become a party
to this Agreement solely for purposes of Sections 1(d), 1(g), 1(h), 1(j), 7
and 10 hereunder.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Each of Norwest
(with respect to paragraphs (d), (g), (h) and (j) only) and the Seller
represents and warrants to, and agrees with, each Underwriter as set forth in
this Section 1. Certain terms used in this Section 1 are defined in
paragraph (a) hereof.
(a) A registration statement on Form S-3 (No. 333-7961), including a
form of prospectus and such amendments thereto as may have been required to
the date hereof, relating to the Securities and the offering thereof in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"ACT"), has been filed with the Securities and Exchange Commission (the
"COMMISSION") and such registration statement, as amended, has become
effective. The Seller, as registrant, will file with the Commission a
final prospectus (including the base prospectus and any prospectus
supplement) in accordance with Rule 424(b). As filed, such final
prospectus, except to the extent that you shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus)
as the Seller has advised you, prior to the Execution Time, will be
included or made therein. 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 Seller, threatened by
the Commission.
As used herein, the term the "EFFECTIVE DATE" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "EXECUTION TIME" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "PRELIMINARY PROSPECTUS" shall mean any preliminary
prospectus (including the base prospectus and any prospectus supplement)
included in the Registration Statement at the Effective Date. "PROSPECTUS"
shall mean the prospectus (including the base prospectus (the "BASE
PROSPECTUS") and any prospectus supplement (the "PROSPECTUS SUPPLEMENT"))
relating to the Securities that is first filed pursuant to Rule 424(b).
"REGISTRATION STATEMENT" shall mean the registration statement referred to
in the preceding paragraph, including incorporated documents, exhibits and
financial
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statements, in the form in which it has become effective and, in the event
any post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement
as so amended. "RULE 424" means Rule 424 of the Act. "AFFILIATE" means
each Person (other than the Seller) that is a party to a Purchase
Agreement. "BASIC DOCUMENTS" shall mean each Purchase Agreement, the
Affiliate Security Agreement, the Sale and Servicing Agreement, the
Indenture, the Administration Agreement, the Trust Agreement, this
Agreement, the Securities, and the Depository Agreements. "PARTICIPATING
ENTITY" means each of Norwest, the Seller, the Servicer, and each
Affiliate.
(b) On the Effective Date, the Registration Statement did and, when
the Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date, the Prospectus (and any supplements thereto) will, comply in
all material respects with the applicable requirements of the Act and the
rules and regulations of the Commission (the "RULES AND REGULATIONS"); on
the Effective Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Prospectus (together with any supplement thereto)
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that Seller does not make any representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Seller by you specifically for use in connection with preparation of
the Registration Statement or the Prospectus (or any supplement thereto).
The Seller hereby agrees with the Representative and the Underwriters that,
for all purposes of this Agreement, the only information furnished to the
Seller by the Underwriters through the Representative expressly for use in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, and any preliminary prospectus (the "UNDERWRITER INFORMATION") are
the statements with respect to the terms of the offering in the sentence
preceding the expected delivery date on the cover page of the Prospectus
Supplement, the statements with respect to stabilizing transactions in
secondary markets in the Securities on the second page of the Prospectus
Supplement, and the statements (other than those contained in the last
paragraph) under the caption "Underwriting" in the Prospectus Supplement.
(c) The Computer Tape created as of __, 199__ (the
"TAPE"), and made available to you by the Servicer was complete and
accurate in all material respects as of the date thereof and includes a
description of the Contracts that are described in the List of Contracts.
(d) Each of the Seller and Norwest is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and the Servicer is an association duly organized,
validly existing and in good standing as a licensed national banking
association under the laws of the United States, and each of the
Seller, Norwest and the Servicer has all requisite
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power and authority to own its properties and conduct its business as
presently conducted and to execute, deliver and perform the Basic
Documents, to authorize the issuance of the Securities and to consummate
the transactions contemplated by this Agreement.
(e) The Certificates when executed and authenticated by the Trustee
in accordance with the Trust Agreement and delivered and paid for pursuant
to this Agreement, will be duly issued and will entitle the holder thereof
to the benefits afforded by the Trust Agreement and the Certificates will
conform in substance to the description thereof contained in the
Registration Statement and the Prospectus.
(f) No Participating Entity is in violation of its certificate of
incorporation, articles of association, by-laws or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its property may be bound which would have a material
adverse effect on the transaction contemplated herein or in the Basic
Documents; neither the sale of the Securities to you, nor the execution and
delivery by any Participating Entity of the Basic Documents nor the
consummation by any Participating Entity of the transactions herein or
therein contemplated, nor the compliance by any Participating Entity with
the provisions hereof or thereof, will conflict with or result in a breach
of, or constitute (with or without notice or lapse of time or both) a
default under, the certificate of incorporation, articles of association or
by-laws of any Participating Entity or any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on any
Participating Entity or its properties, or any of the provisions of any
indenture, mortgage, contract or other instrument to which any
Participating Entity is a party or by which it is bound, or result in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract or
other instrument except any lien created by any of the Basic Documents.
(g) This Agreement has been duly authorized, executed and delivered
by Norwest and the Seller.
(h) Each of the Basic Documents to which any Participating Entity is
a party has been duly authorized and when executed and delivered by such
Participating Entity, will constitute a legal, valid and binding instrument
enforceable against such Participating Entity in accordance with its
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Basic Documents will conform to the description thereof
contained in the Registration Statement and the Prospectus.
(i) Each Affiliate's assignment and delivery to the Seller of the
Contracts of such Affiliate and security interests in the Financed Vehicles
securing such Contracts and the proceeds thereof will vest in the Seller,
and the Seller's assignment and delivery of the Trust Estate to the Trustee
as of the Closing Date will vest in the Trustee, all of such Affiliate's or
the Seller's, as the case may be, right, title and interest therein, in
each case, subject to
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no prior lien, mortgage, security interest, pledge, adverse claim, charge
or other encumbrance.
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of any Participating Entity, threatened before any court,
administrative agency, or other tribunal (i) that are required to be
disclosed in the Registration Statement or the Prospectus, (ii) asserting
the invalidity of any of the Basic Documents, (iii) seeking to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by any of the Basic Documents, (iv) that might materially and
adversely affect the performance by such Participating Entity of its
obligations under, or the validity or enforceability of, any of the Basic
Documents, (v) seeking to affect adversely the Federal or state income,
excise, franchise or similar tax attributes of the Securities described in
the Prospectus, or (vi) that, in the reasonable judgment of the Seller,
which would have a material adverse effect on the transaction contemplated
herein or in the Basic Documents.
(k) No authorization, approval, consent or other order or action of,
or filing or registration with any court or governmental authority or
agency is necessary in connection with the sale of the Securities
hereunder, except such as have been obtained and made under the Act and the
Rules and Regulations or state securities laws.
(l) Seller has delivered to you complete and correct copies of
publicly available portions of the Consolidated Reports of Condition
and Income of the Servicer for the year ended December 31, 1995,
audited consolidated balance sheets of Norwest which are included in
Norwest's 1996 Annual Report to Stockholders and Form 10-K and the
unaudited consolidated balance sheet of Norwest as at June 30, 1996
and the related consolidated statements of income, cash flows and
stockholders' equity for the six month period then ended. Except as
set forth in or contemplated in the Registration Statement and the
Prospectus, there has been no material adverse change in the condition
(financial or otherwise) of Norwest or the Servicer since December 31,
1995 which would impair the ability of Norwest or the Servicer to
perform its obligations under the Sale and Servicing Agreement.
(m) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of the Basic Documents shall have
been paid or will be paid by the Seller at or prior to the Closing Date to
the extent then due.
(n) The representations and warranties of each Participating Entity
contained in the Basic Documents are true and correct in all material
respects.
(o) KPMG Peat Marwick LLP are independent public accountants with
respect to the Seller within the meaning of the Act and the Rules and
Regulations.
(p) Each Participating Entity has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or obtain such
license or approval would render
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any Contract unenforceable by the Trustee or the Indenture Trustee, as
applicable, on behalf of any Securityholder.
Section 2. PURCHASE AND SALE. (a) Subject to the terms and conditions and
in reliance upon the covenants, representations and warranties herein set forth,
the Seller agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase, the Initial Principal Amount (the
"INITIAL PRINCIPAL AMOUNT") of the Class A-1 Notes, Class A-2 Notes and
Certificates set forth opposite such Underwriter's name in Schedule I hereto.
The purchase price (the "PURCHASE PRICE") for the (i) Class A-1 Notes shall be
equal to ___% of the aggregate Initial Principal Amount represented by the Class
A-1 Notes, (ii) Class A-2 Notes shall be equal to ___% of the aggregate Initial
Principal Amount represented by the Class A-2 Notes and (iii) Certificates shall
be equal to % of the aggregate Initial Principal Amount represented by the
Certificates plus, in each case, accrued interest, if any, at the applicable
Interest Rate or Certificate Rate, as the case may be, from and including
__, 199_, up to, but not including, the Closing Date.
(b) Payment for the Securities shall be made to the Seller or to its order
by wire transfer of same day funds at the office of ________________ at 10:00
A.M. [city, state] time on _____________ __, 199__ 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 or Minneapolis, Minnesota. Payment of the Purchase Price shall be made
against delivery to the Representative of the Securities which will be initially
represented by one or more certificates registered in the name of Cede & Co.,
the nominee of The Depository Trust Company ("DTC"). The interest of beneficial
owners of the Securities will be represented by book entries on the records of
DTC and participating members thereof. Definitive securities will be available
only under the limited circumstances set forth in the Indenture and the Trust
Agreement.
Section 3. COVENANTS OF THE SELLER. The Seller covenants and agrees with
you that:
(a) The Seller will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, and will not
effect such amendment or supplement without your consent, which consent
will not unreasonably be withheld, the Seller will also advise you promptly
of the effectiveness of or request by the Commission for any amendment or
supplement of the Registration Statement or the Prospectus and of the
institution or threatening by the Commission of any stop order proceedings
in respect of the Registration Statement and of the receipt by the Seller
of notification with respect to the suspension of the qualification of the
Notes or Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Seller will use its
best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to any of the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
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state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act, the Seller promptly will notify the Representative and
prepare and file, or cause to be prepared and filed, with the Commission
and furnish to the Representative and any dealers identified by the
Representative, an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect such
compliance.
(c) As soon as practicable, but not later than sixteen months after
the original effective date of the Registration Statement, the Seller will
cause the Trustee to make generally available to Securityholders an
earnings statement covering a period of at least 12 months beginning after
the Effective Date of the Registration Statement which will satisfy the
provisions of Section 11(a) of the Act.
(d) The Seller will furnish you copies of the Registration Statement
(one of which will be signed and will include all exhibits), each related
preliminary prospectus, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as you 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) The Seller will arrange for the qualification of the Securities
for offering and sale under the laws of such jurisdictions in the United
States as you may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of the
Securities; PROVIDED, HOWEVER, that the Seller shall not be required to
qualify to do business in any jurisdiction where it is not so qualified or
to take any action which would subject it to general or unlimited service
of process in any jurisdiction where it is not now so subject.
(f) So long as any of the Securities are outstanding, the Seller
will, or will cause the Servicer to, promptly furnish to you, copies of (i)
all documents required to be distributed to Securityholders, Security
Owners or filed with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), or any order of the Commission
thereunder, (ii) copies of each Servicer's Report and the annual
statements of compliance delivered to the Trustee pursuant to Article IV of
the Sale and Servicing Agreement and the annual independent certified
public accountant's servicing reports furnished to Trustee pursuant to
Article IV of the Sale and Servicing Agreement, by first-class mail at the
same time such statements and reports are furnished to the Trustee, (iii)
copies of each amendment to any of the Basic Documents, (iv) copies of all
other reports and communications to any Securityholders or Security Owners,
or to or from the Trustee, the Clearing Agency, any Rating Agency or the
Commission relating to the Trust or the Securities, (v) copies of each
Opinion of Counsel and Officer's Certificate delivered pursuant to the Sale
and Servicing Agreement, as soon as available, and (vi) from time to time,
such other information concerning the Trust or the Seller as the
Representative may reasonably request.
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(g) On or before the Closing Date, each Participating Entity shall
cause its computer records relating to the Contracts to be marked to show
the Trustee's absolute ownership of the Contracts, no Participating Entity
shall take any action inconsistent with the Trustee's ownership of such
Contracts, other than as permitted by the Basic Documents.
(h) If required, the Seller will prepare, and file or transmit the
Prospectus for filing with the Commission in accordance with Rule 424(b) of
the Act.
(i) If required by law, the Seller will register the Securities
pursuant to the Exchange Act, prior to April 29, 1997.
(j) To the extent, if any, that the rating provided with respect to
the Securities by the Rating Agency or Agencies that initially rate the
Securities is conditional upon the furnishing of documents or the taking of
any other actions by any Participating Entity, the Seller shall furnish or
cause such other Participating Entity to furnish such documents and take
any such other actions.
Section 4. PAYMENT OF EXPENSES. The Seller will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
preparation, printing, filing and delivery under the Act of the Registration
Statement as originally filed and of each amendment thereto, the Prospectus and
any preliminary prospectus (including in each case all exhibits, amendments and
supplements thereto), (ii) the issuance and delivery of the Securities to the
Underwriters, (iii) the fees and disbursements of the Seller's counsel and
accountants [and that portion of the Underwriter's counsel fees and
disbursements that are chargeable to the Seller], (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(e), including filing fees and the fees and disbursements of counsel for you in
connection therewith and in connection with the preparation of any blue sky
survey, (v) the printing and delivery to you of copies of the Basic Documents
and the blue sky survey (including exhibits, amendments and supplements
thereto), (vi) any fees charged by Rating Agencies for the rating of the
Securities, (vii) the fees, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc., (viii) any fees and expenses
payable to the Clearing Agency, and (ix) any fees and expenses of the Trustee,
the Indenture Trustee and their respective counsel.
Section 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligation of the Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of the
Seller herein, to the accuracy of the statements of officers of the Seller made
pursuant to the provisions hereof, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the Closing Date, you shall have received a
letter, dated as of the Closing Date, of KPMG Peat Marwick LLP, Certified
Public Accountants, substantially in the form of the draft to which you
have previously agreed and otherwise in form and substance satisfactory,
addressed to you and your counsel.
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(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 1 hereof, and prior
to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Seller or
you, shall be contemplated by the Commission or by any authority
administering any state securities or blue sky law.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change in or affecting particularly the
business or properties of any Participating Entity which, in your
reasonable judgment, materially impairs the investment quality of the
Securities; (ii) any downgrading in the rating of the debt securities (if
any) of any Participating Entity by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act)
which, in your reasonable judgment, materially impairs the investment
quality of the Securities; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of Norwest on any exchange; (iv) any banking
moratorium declared by Federal, Minnesota or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United
States of America is involved, any declaration of war by Congress, or
any other substantial national or international calamity or emergency
if, in your reasonable judgment, the effects of any such outbreak,
escalation, declaration, calamity, or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Securities.
(d) The Seller shall have delivered to you a certificate, dated the
Closing Date, signed by its President or Treasurer or other officer
acceptable to the Representative to the effect that the signer of such
certificate has carefully examined each Basic Document, the Prospectus (and
any supplement thereto) and the Registration Statement and that:
(i) the representations and warranties of each Participating
Entity in the Basic Documents are true and correct at and as of the
Closing Date as if made on and as of the Closing Date (except to the
extent they expressly relate to an earlier date);
(ii) each Participating Entity has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Closing
Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the signer,
threatened; and
(iv) since the date of the most recent financial statements of
Norwest delivered to you pursuant to Section 1(l) hereof, there has
been no material adverse change in the condition (financial or
otherwise) of any Participating Entity whether or not arising from
transactions in the ordinary course of business,
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except as set forth in or contemplated in the Registration Statement
and the Prospectus, which would impair the ability of such
Participating Entity to perform its obligations under the Sale and
Servicing Agreement and there has been no material adverse change, or
any development involving a prospective material adverse change, in or
affecting particularly the portfolio of Motor Vehicle Loans of any
Participating Entity or the business or properties of the Trust or any
Participating Entity.
(e) You shall have received from Xxxxxxx X. Xxxxxx, General Counsel
of Norwest, the sole stockholder of the Seller, an opinion dated the
Closing Date to the effect that:
(i) each Affiliate listed on Schedule II hereto has been duly
organized as an association licensed as a national banking
association and is validly existing and in good standing under the
laws of the United States, and the Seller and Norwest have been duly
organized and are validly existing as corporations in good standing
under the laws of Delaware and each Participating Entity is duly
qualified to do business and is in good standing under the laws of
each jurisdiction where the failure to so qualify would have a
material adverse impact on the conduct of its business, and has
obtained all necessary licenses and approvals in each jurisdiction in
which failure to qualify or obtain such license or approval would
render any Contract unenforceable by the Trustee or the Indenture
Trustee, as applicable, on behalf of any Securityholder, and has full
power and authority to own its properties, to conduct its business as
described in the Registration Statement and the Prospectus, to enter
into and perform its obligations under the Basic Documents to which
it is a party, to consummate the transactions contemplated hereby and
thereby, and now has the power, authority and legal right to acquire,
own, sell and service the Contracts;
(ii) each Basic Document has each been duly authorized, executed
and delivered by each Participating Entity that is a party thereto;
(iii) neither the transfer of the Contracts by any
Participating Entity to the Seller or by the Seller to the Trust,
nor the assignment of the security interest of any Participating
Entity or the Seller in the Financed Vehicles, nor the issuance or
sale of the Securities nor the execution nor the delivery of any
Basic Document to which any Participating Entity or the Seller is a
party, nor the issuance or delivery of the Securities, nor the
consummation of any of the transactions contemplated herein or
therein, nor the fulfillment of the terms of the Securities, or any
Basic Document to which any Participating Entity or the Seller is a
party, will conflict with or violate, result in a material breach
of or constitute a default under (i) any term or provision of the
charter or by-laws of any Participating Entity or the Seller or any
statute or regulation currently applicable to any Participating
Entity or the Seller or any Minnesota statute or regulation
currently applicable to any Participating Entity, the Seller or the
Trust, (ii) any term or provision of any order known to such
counsel to be currently applicable to any Participating Entity, the
Seller or the Trust of any court, regulatory body, administrative
agency or governmental body having jurisdiction over any
Participating Entity, the Seller or the Trust, as the case may be,
or (iii) any term or
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provision of any indenture or other agreement or instrument known to
such counsel to which any Participating Entity, the Seller or the
Trust is a party or by which any of them or any of their properties
are bound;
(iv) assuming that the standard procedures of each Affiliate with
respect to the perfection of a security interest in new or used
automobiles or light duty trucks financed directly or indirectly by
such Affiliate pursuant to Motor Vehicle Loans in the ordinary course
of business of such Affiliate have been followed with respect to the
perfection of security interests in the Financed Vehicles, such
Affiliate has acquired or will acquire a perfected security interest
in the Financed Vehicles;
(v) except as otherwise disclosed in the Prospectus or
Registration Statement, there is no pending or, to the best knowledge
of such counsel, threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator with
respect to any Basic Document or any of the transactions contemplated
herein or therein or with respect to any Affiliate, the Seller or the
Trust which, in the case of any such action, suit or proceeding with
respect to any Affiliate, the Seller or the Trust, if adversely
determined, would have a material adverse effect on the
Securityholders or the Trust or upon the ability of any Affiliate or
the Seller to perform its obligations under the Basic Documents to
which it is a party, and the statements included in the Registration
Statement, Preliminary Prospectus and Prospectus describing legal
proceedings, contracts and other documents relating to any Affiliate
or the Seller, the Contracts, the business of any Affiliate, the
Seller or the Trust fairly summarize the matters therein described;
(vi) the Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act;
(vii) each Basic Document (other than this Agreement) has been
duly authorized, executed and delivered by the Participating Entity
that is a party thereto and constitutes the valid and legally binding
obligation of such Participating Entity, enforceable against such
Participating Entity in accordance with its respective terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditor's rights and to general equity principles;
(viii) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or with any
court or governmental agency or body is required for the consummation
by any Affiliate, the Seller or the Trust (except that, with respect
to the Trust, this opinion may be limited to any court or governmental
agency or body of the State of Minnesota) of the transactions
contemplated in the Basic Documents, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction inside the United States in connection with the
purchase and distribution of the Securities by the Underwriters and
such filings or other approvals (specified in such opinion) as have
been made or obtained; and
(ix) immediately prior to the transfer of Contracts by each
Affiliate pursuant to the applicable Purchase Agreement and by the
Seller pursuant to the Sale and Servicing Agreement, such Affiliate or
the Seller, as applicable, was the sole
11
owner of all right, title and interest in the Contracts and the other
property to be transferred by it.
Such counsel shall also state that it has no reason to believe that at
the Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (other than financial and statistical information
contained therein as to which such counsel need express no opinion).
To the extent such opinion involves the application of laws of any
jurisdiction other than the State of Minnesota, the federal law of the United
States and Delaware General Corporation Law, to the extent deemed proper and
stated in such opinion such counsel(s) may assume that the laws of such other
jurisdictions do not differ materially from the laws of the State of Minnesota,
and (B) may rely as to matters of fact on certificates of responsible officers
of the Trust, any Participating Entity and public officials. References to the
Prospectus in this paragraph (e) include any supplements thereto.
(f) You shall have received an opinion of Xxxxx, Xxxxx & Xxxxx,
special counsel to the Participating Entities, addressed to you, dated the
Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) each Participating Entity is validly existing and in good
standing under the laws of its respective jurisdiction of
organization;
(ii) the statements in the Registration Statement and Prospectus
under the headings "Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute matters of federal
law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material respects;
(iii) this Agreement has been duly authorized, executed and
delivered by Norwest and the Seller;
(iv) each Basic Document (other than this Agreement) has been
duly authorized, executed and delivered by the Participating Entity
that is a party thereto and constitutes the valid and legally binding
obligation of such Participating Entity, enforceable against such
Participating Entity in accordance with its respective terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditor's rights and to general equity principles;
(v) the Certificates have been duly and validly authorized and,
assuming their due execution, authentication and issuance by the
Trustee, will be duly and
12
validly issued and outstanding and will be entitled to the benefits of
the Trust Agreement;
(vi) the Basic Documents each conform in all material respects
with the descriptions thereof contained in the Registration Statement
and the Prospectus;
(vii) the Trust Agreement is not required to be qualified and
the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, and neither the Seller nor the Trust created by the
Trust Agreement is required to be registered under the Investment
Company Act of 1940; as amended;
(viii) the Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations;
(ix) the Trust will be classified for federal income tax purposes
as a partnership and not as an association taxable as a corporation,
and the Notes will be characterized as debt for federal income tax
purposes;
(x) the Contracts of each Affiliate are "chattel paper" as
defined in the UCC;
(xi) the transfer by each Affiliate of Contracts to the Seller
pursuant to the Purchase Agreement to which such Affiliate is a party
either (x) is a true sale of such Contracts to Seller or (y) creates a
valid and enforceable security interest in the Contracts in favor of
the Seller;
(xii) the transfer by the Seller of Contracts to the Trustee
pursuant to Sale and Servicing Agreement either (x) is a true sale of
such Contracts to the Trustee or (y) creates a valid and enforceable
security interest in the Contracts in favor of the Trustee;
(xiii) all filings necessary under applicable law to perfect
the security interest or ownership interest transferred by each
Affiliate in its Contracts to the Seller pursuant to the Purchase
Agreement to which such Affiliate is a party have been made and,
provided that such Affiliate does not relocate its principal place of
business and that the Trustee maintains the list of Contracts for
inspection by interested parties, no other filings (other than the
filing of continuation statements) need be made to maintain the
perfection of such interest, and, based solely on such counsel's
review of applicable lien search reports, the interest of the Seller
will constitute a perfected security interest prior to any other
security interest not created under the Basic Documents that may be
perfected solely by the filing of a financing statement under the
Uniform Commercial Code as in effect in the jurisdiction in which each
such Affiliate is then located;
13
(xiv) all filings necessary under applicable law to perfect
the security interest or ownership interest transferred by the Seller
in the Contracts to the Trustee pursuant to the Sale and Servicing
Agreement have been made and, provided that the Seller does not
relocate its principal place of business and that the Trustee
maintains the list of Contracts for inspection by interested parties,
no other filings (other than the filing of continuation statements)
need be made to maintain the perfection of such interest, and, based
solely on such counsel's review of applicable lien search reports, the
interest of the Trustee will constitute a perfected security interest
prior to any other security interest not created under the Basic
Documents that may be perfected solely by the filing of a financing
statement under the Uniform Commercial Code as in effect in the
jurisdiction in which the Seller is then located;
(xv) the Affiliate Security Agreement to which each
Affiliate is a party constitutes a grant by such Affiliate to the
Trustee of a valid security interest in the Contracts of such
Affiliate, the security interests in the Financed Vehicles securing
such Contracts and the proceeds of each of the foregoing;
(xvi) all filings necessary under applicable law to perfect
the security interest granted by each Affiliate in its Contracts to
the Trustee pursuant to the Affiliate Security Agreement to which such
Affiliate is a party have been made and, provided that such Affiliate
does not relocate its principal place of business and that the Trustee
maintains the list of Contracts for inspection by interested parties,
no other filings (other than the filing of continuation statements)
need be made to maintain the perfection of such interest, and, based
solely on such counsel's review of applicable lien search reports, the
interest of the Trustee will constitute a perfected security interest
prior to any other security interest not created under the Basic
Documents that may be perfected solely by the filing of a financing
statement under the Uniform Commercial Code as in effect in the
jurisdiction in which each such Affiliate is then located;
(xvii) each Purchase Agreement and each Affiliate Security
Agreement meets each of the requirements set forth in Section 13(e) of
the FDIA, and neither Section 11(d)(9) nor Section 11(n)(4)(l) of the
FDIA would prevent such Purchase Agreement or Affiliate Security
Agreement from forming the basis of a claim against the FDIC as
conservator or receiver or in its corporate capacity, or against any
bridge bank chartered pursuant to Section 11(n) of the FDIA; and
(xviii) in the event that the FDIC were to be appointed as
conservator or receiver for any applicable Affiliate pursuant to
Section 11(c) of the Federal Deposit Insurance Act, as amended, the
security interest granted by such Affiliate to the Trustee pursuant to
the Affiliate Security Agreement would be enforceable against such
Affiliate notwithstanding the appointment of the FDIC as conservator
or receiver for such Affiliate.
14
Such counsel shall also state that it has no reason to believe that at
the Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (other than financial and statistical information
contained therein as to which such counsel need express no opinion).
(g) You shall have received from Xxxxx, Xxxxx & Xxxxx, in its
capacity as special counsel for the Participating Entities, a favorable
opinion dated the Closing Date, with respect to the nonconsolidation under
the Bankruptcy Code of the assets and liabilities of the Seller on the one
hand, and those of either Norwest or any Affiliate subject to the
Bankruptcy Code, on the other, in the event Norwest Corporation or any
such Affiliate were to become the subject of a case under the Bankruptcy
Code.
(h) You shall have received from Xxxxx, Xxxxx & Xxxxx, in its
capacity as counsel for the Representative, a favorable opinion dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Sale and Servicing Agreement, the Registration Statement, the Prospectus
and such other related matters as the Representative and the Underwriters
may reasonably require; and the Seller shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass on all such matters.
In giving their opinions, Xxxxx, Xxxxx & Xxxxx may rely (A) as to matters
of Minnesota law upon the opinions of counsel delivered pursuant to subsection
(e) above, (B) as to matters involving the application of laws of any
jurisdiction other than the State of New York, the State of Illinois, the United
States or the General Corporation Law of the State of Delaware, to the extent
deemed proper and specified in such opinion, upon such standard compilations of
applicable law in such jurisdictions or the opinion of other counsel of good
standing believed to be reliable, and (C) as to matters of fact, to the extent
deemed proper and as stated therein on certificates of responsible officers of
the Trust or any Participating Entity and public officials.
(i) You shall have received an opinion or opinions of Faegre &
Xxxxxx, Minnesota counsel for the Servicer, addressed to you, dated the
Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) for Minnesota income and franchise tax purposes, the Trust
created by the Trust Agreement will not be classified as a corporation
and, accordingly, will not be subject to Minnesota income and
franchise taxes, and Security Owners who are not residents or
otherwise subject to tax in Minnesota will not be subject to Minnesota
income or franchise taxes with respect to interest from the Securities
or with respect to any of the Contracts; and
(ii) immediately prior to the sale, transfer, assignment, and
conveyance of the Contracts to the Trust by the Seller, and by the
applicable Affiliate to the
15
Seller, such Affiliate and the Seller owned the Contracts free and
clear of (i) any tax lien in favor of the State of Minnesota, notice
of which has been properly filed and indexed in such Affiliate's or
the Seller's name at the Minnesota Department of State; (ii) any
federal tax lien, notice of which has been properly filed and indexed
in such Affiliate's or the Seller's name with the Clerk of the United
States District Court for the District of Minnesota; and (iii) any
other lien, security interest or charge, notice of which lien,
security interest or charge is on file, properly indexed under such
Affiliate's or the Seller's name, at the Minnesota Department of
State.
(j) 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 Minnesota and
[list of central filing locations other than Minnesota] and [list of local
filing offices] reflecting the interest of each of the Seller, the Trust
and the Indenture Trustee in the Contracts and the proceeds thereof.
(k) The Representative and the Seller 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 the
Seller and their counsel to the effect that:
(i) the Indenture Trustee is a ______________ organized and
existing under the laws of ______________, and has the power and
authority (corporate and other) to enter into, and to take all action
required of it under, the Indenture;
(ii) the Indenture has been duly authorized, executed and
delivered by the Indenture Trustee and constitutes a legal, valid and
binding agreement of the Indenture Trustee, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, liquidation, reorganization, moratorium or
other similar laws affecting the enforcement of rights of creditors
against the Indenture Trustee generally, as such laws would apply in
the event of bankruptcy, insolvency, liquidation or reorganization or
any moratorium or similar occurrence affecting the Indenture Trustee,
and the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law);
(iii) the Notes have been duly authenticated and delivered by
the Indenture Trustee;
(iv) the execution and delivery of the Indenture by the Indenture
Trustee and the performance by the Indenture Trustee of the terms of
the Indenture does not conflict with or result in a violation of (A)
any law of ______________ or any regulation governing the banking or
trust powers of the Indenture Trustee, (B) the charter or by-laws of
the Indenture Trustee, or (C) to such counsel's knowledge, any order,
writ, injunction or decree of any court or governmental authority
against the Indenture Trustee or by which it or any of its properties
is bound or, to such counsel's knowledge, any indenture, mortgage or
contract or other agreement or
16
instrument to which the Indenture Trustee is a party or by which it or
any of its properties is bound, or result in the creation or
imposition of any lien, charge or encumbrance upon any of its
properties pursuant to any agreement or instrument, or constitute a
default thereunder;
(v) no approval, authorization or other action by, or filing
with, any governmental agency or authority under any existing federal
or state law governing the banking or trust powers of the Indenture
Trustee is required in connection with the execution and delivery of
the Indenture by the Indenture Trustee; and
(vi) there are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened against the Indenture
Trustee before any court, or by or before any federal, state,
municipal or other governmental department, commission, board, bureau
or governmental agency or instrumentality, or arbitrator which would,
if adversely determined, affect in any material respect the
consummation, validity or enforceability against the Indenture Trustee
of the Indenture.
(l) The Representative and the Seller shall have received from
counsel for the Trustee a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and the Seller and
their counsel to the effect that:
(i) the Trustee is a banking corporation duly organized and
validly existing under the laws of the State of Delaware, and has the
power and authority (corporate and other) to enter into, and to take
all action required of it under, the Trust Agreement, and on behalf of
the Trust, under the Sale and Servicing Agreement (including the
power to act as a successor Servicer thereunder), the Administration
Agreement and the Indenture;
(ii) each of the Trust Agreement, the Sale and Servicing
Agreement, the Administration Agreement, the Indenture and the Notes
has been duly authorized, executed and delivered by the Trustee and
constitutes a legal, valid and binding agreement of the Trustee,
enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors against the Trustee generally, as
such laws would apply in the event of bankruptcy, insolvency,
liquidation or reorganization or any moratorium or similar occurrence
affecting the Trust, and the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the Trustee has duly authorized, issued, executed and
delivered and the Trustee or its authenticating agent has duly
authenticated, each of the Certificates pursuant to the Trust
Agreement and each constitutes a legal, valid and binding agreement of
the Trustee, enforceable in accordance with its terms and the terms of
the Trust Agreement, except as such enforceability may be limited by
bankruptcy,
17
insolvency, liquidation, reorganization, moratorium or other similar
laws affecting the enforcement of rights of creditors against the
Trustee generally, as such laws would apply in the event of
bankruptcy, insolvency, liquidation or reorganization or any
moratorium or similar occurrence affecting the Trust, and the
application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and each Certificate is entitled to the benefits afforded by the
Trust Agreement in accordance with the terms of the Trust Agreement;
(iv) the execution and delivery of the Trust Agreement, and on
behalf of the Trust, the Sale and Servicing Agreement, the
Administration Agreement, the Indenture, the Notes and the
Certificates by the Trustee and the performance by the Trustee of the
terms thereof does not conflict with or result in a violation of (A)
any law of the United States or the State of Delaware or any
regulation governing the banking or trust powers of the Trustee, (B)
the charter or by-laws of the Trustee, or (C) to such counsel's
knowledge, any order, writ, injunction or decree of any court or
governmental authority against the Trustee or by which it or any of
its properties is bound or, to such counsel's knowledge, any
indenture, mortgage or contract or other agreement or instrument to
which the Trustee is a party or by which it or any of its properties
is bound, or result in the creation or imposition of any lien, charge
or encumbrance upon any of its properties pursuant to any agreement or
instrument, except encumbrances and security interests contemplated by
the Purchase Agreements, the Sale and Servicing Agreement and the
Indenture;
(v) no approval, authorization or other action by, or filing
with, any governmental agency or authority under any existing federal
or state law governing the banking or trust powers of the Trustee is
required in connection with the execution and delivery of the Trust
Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Notes and the Certificates by the Trustee;
(vi) there are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened against the Trustee
before any court, or by or before any federal, state, municipal or
other governmental department, commission, board, bureau or
governmental agency or instrumentality, or arbitrator which would, if
adversely determined, affect in any material respect the consummation,
validity or enforceability against the Trustee of any of the Trust
Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Notes or the Certificates;
(vii) the Trust has been duly formed and is validly existing
as a statutory business trust under the laws of the State of Delaware,
with full power and authority to execute, deliver and perform its
obligations under the Indenture, the Sale and Servicing Agreement, the
Administration Agreement, the Notes and the Certificates;
18
(viii) the Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Contracts, the
security interests in the Financed Vehicles securing the Contracts,
and the proceeds of each of the foregoing; and
(ix) the security interest granted under the Indenture will be
perfected upon the filing of a UCC financing statement with the
Delaware Secretary of State and except as contemplated by the Basic
Documents, will constitute a first priority perfected security
interest therein and no other filing or other action is necessary to
perfect and maintain the security interest of Indenture Trustee in the
Contracts, the security interests in the Financed Vehicles securing
the Contracts, and the proceeds of each of the foregoing against third
parties.
(m) On or before the Closing Date, you shall have received evidence
satisfactory to you that the Class A-1 Notes and Class A-2 Notes shall have
been rated the highest possible rating by the Rating Agencies and the
Certificates shall have been rated at least "A" by the Rating Agencies, and
neither of the Rating Agencies shall have placed the Notes or Certificates
under review with possible negative implications.
(n) On the Closing Date, you and your counsel shall have received any
opinion letters delivered by the Seller's counsel to the Rating Agencies
with respect to the rating of the Notes and the Certificates and such
counsel shall deliver a letter to you and your counsel stating that you and
your counsel may conclusively rely on any such opinion letters.
(o) Any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of the
Basic Documents shall have been paid by Seller at or prior to the Closing
Date.
(p) 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.
(q) The Underwriters and counsel for the Underwriters shall have
received such information, certificates and documents as the Underwriters
or counsel for the Underwriters may reasonably request.
The Seller will provide or cause to be provided to you such conformed
copies of such opinions, certificates, letters and documents as you
reasonably request.
Section 6. REIMBURSEMENT OF EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to your obligations
set forth in Section 5 hereof is not satisfied, because of any termination
pursuant to Section 9 hereof or because of any refusal, inability or failure on
the part of the Seller to perform any agreement herein or to comply with any
provision hereof other than by reason of a default by the Underwriters, the
Seller will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
19
Section 7. INDEMNIFICATION.
(a) Each of Norwest and the Seller jointly and severally agrees
to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus or in any amendment or supplement or any
preliminary prospectus or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that neither Norwest
nor the Seller will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
the Underwriter Information.
(b) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof, but the omissions to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled,
jointly with any other indemnifying party similarly notified, to retain
counsel reasonably satisfactory to such indemnified party to represent the
indemnified party in such action; PROVIDED, HOWEVER, that if the defendants
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to appoint counsel to defend such
action and approval by the indemnified party of such counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel, approved by the Underwriters in the case of paragraph (a) of this
20
Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified person from all liability on
claims that are the subject matter of such proceeding.
(c) To provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section
7 is due in accordance with its terms but is for any reason held by a court
to be unavailable on grounds of policy or otherwise, each indemnifying
party shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the indemnified
party may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Participating Entities on the one hand
and the Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Participating Entities on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages and liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Participating
Entities on the one hand and the Underwriters on the other, shall be deemed
to be in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus bears to the sum of such
discount and the purchase price of the Securities specified in Schedule I
hereto and each of Norwest and the Seller is jointly and severally
responsible for the balance; PROVIDED, HOWEVER, that the liability of the
Underwriters shall not exceed in the aggregate the amount of such
discount. 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 relative fault of the Participating Entities on
the one hand and Underwriters 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. For purposes of this
Section 7, each person who controls an Underwriter within the meaning
of the Act shall have the same rights to contribution as such
Underwriter, and each person who controls Norwest or the Seller within
the meaning of either the Act or the
21
Exchange Act, each officer of the Seller who shall have signed the
Registration Statement and each director of the Seller shall have the same
rights to contribution as Norwest and the Seller. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against any other party or parties under this
paragraph (c), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (c).
(d) Norwest, the Seller and Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by PRO RATA allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party 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 party in connection with
investigating or defending any such action or claim.
(e) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the indemnifying party may
otherwise have to the indemnified party referred to above.
Section 8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the aggregate amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter, the Trust or the Seller. In the event of
a default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Seller
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
Section 9. TERMINATION. You may terminate this Agreement immediately upon
notice to the Seller, at any time prior to the Closing Date relating thereto (i)
if any change or any development
22
involving a prospective change, in or affecting particularly the business or
properties of any Participating Entity which, in your reasonable judgment
materially impairs the investment quality of the Securities; (ii) if there has
occurred any outbreak or escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable to market the Securities or enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of Norwest Corporation has been suspended by the Commission or a national
securities exchange, or if trading generally on the New York Stock Exchange has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by Federal, Minnesota or
New York State authorities.
Section 10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Trust, Norwest, the Seller or the officers of each of them and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of you or
the Trust, Norwest, the Seller or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Section 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
Section 11. REPRESENTATIONS OF UNDERWRITERS. The Representative will act
for the several Underwriters in connection with the transactions described in
this Agreement, and any action taken by the Representative under this Agreement
will be binding upon all of the Underwriters.
Section 12. NOTICES. All communications hereunder shall be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them c/o the Representative at
____________________________________; if sent to Norwest or the Seller, will
be mailed, delivered or telegraphed and confirmed to them at Norwest Center,
Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, attention of General
Counsel.
Section 13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof.
Section 14. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
no other person will have any right or obligation hereunder.
Section 15. MISCELLANEOUS. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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If you are in agreement with the foregoing, please sign three counterparts
hereof and return one to the Seller and one to the Bank whereupon this letter
and your acceptance shall become a binding agreement among the Seller, the Bank
and the several Underwriters.
Very truly yours,
NORWEST AUTO RECEIVABLES CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
[NAME OF REPRESENTATIVE], as
Representative of the Underwriters
By:________________________________
Name:______________________________
Title:_____________________________
The undersigned agrees to, and has become a
party to this Agreement solely with respect
to, the provisions of Sections 1(d), 1(g),
1(h) and 1(j), 7 and 10 hereunder.
NORWEST CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
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Schedule I
Initial Principal Amount of
Class A-1 Notes Class A-2 Notes Certificates
--------------- --------------- ------------
[NAMES OF UNDERWRITERS] $ $ $
Norwest Investment Services, Inc. $ $ $
---------- ---------- ----------
Total $ $ $
---------- ---------- ----------
---------- ---------- ----------
25
Schedule II
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