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XXXXX FARGO AUTO TRUST 2001-A
$191,000,000 4.03% CLASS A-1 ASSET BACKED NOTES
$239,000,000 4.25% CLASS A-2 ASSET BACKED NOTES
$208,000,000 4.68% CLASS A-3 ASSET BACKED NOTES
$67,530,000 5.07% CLASS A-4 ASSET BACKED NOTES
$18,664,000 4.91% CLASS B ASSET BACKED NOTES
$11,200,000 5.50% CLASS C ASSET BACKED NOTES
Xxxxx Fargo Auto Receivables Corporation
(SELLER)
UNDERWRITING AGREEMENT
May 8, 2001
Deutsche Banc Xxxx. Xxxxx Inc.,
as Representative of the several
Underwriters named in Schedule II hereto
c/o Deutsche Banc Xxxx. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Xxxxx Fargo Auto Receivables Corporation (the
"Seller") has previously filed a registration statement with the Securities and
Exchange Commission relating to the issuance and sale from time to time of up to
$2 billion of asset backed notes and/or asset backed certificates. The Seller
proposes to cause Xxxxx Fargo Auto Trust 2001-A (the "Trust") to issue and sell
to the underwriters listed on Schedule II hereto (the "Underwriters")
$191,000,000 principal amount of its 4.03% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), $239,000,000 principal amount of its 4.25% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), $208,000,000 principal amount of its 4.68%
Class A-3 Asset Backed Notes (the "Class A-3 Notes"), $67,530,000 principal
amount of its 5.07% Class A-4 Asset Backed Notes (the "Class A-4 Notes"),
$18,664,000 principal amount of its 4.91% Class B Asset Backed Notes (the "Class
B Notes") and $11,200,000 principal amount of its 5.50% Class C Asset Backed
Notes (the "Class C Notes" and together with the Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, the "Notes"). The
Trust will also issue Certificates (the "Certificates" and together with the
Notes, the "Securities") which will be retained by the
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Seller. The assets of the Trust will include, among other things, a pool of
prime, motor vehicle retail installment sale contracts (the "Receivables")
secured by new and used automobiles and light trucks financed thereby (the
"Financed Vehicles"), and certain monies received thereunder on or after May 1,
2001 (the "Cutoff Date"), and the other property and the proceeds thereof to be
conveyed to the Trust pursuant to the Sale and Servicing Agreement to be dated
as of May 16, 2001 (as amended and supplemented from time to time, the "Sale and
Servicing Agreement") among Xxxxx Fargo Auto Trust 2001-A (the "Trust"), the
Seller and Xxxxx Fargo Bank, National Association ("Xxxxx Fargo"), as servicer
(the "Servicer"). Pursuant to the Sale and Servicing Agreement, the Seller will
sell the Receivables to the Trust and the Servicer will service the Receivables
on behalf of the Trust. In addition, pursuant to the Administration Agreement to
be dated as of May 16, 2001 (as amended and supplemented from time to time, the
"Administration Agreement") among the Trust, Xxxxx Fargo Bank Minnesota,
National Association (the "Administrator") and the Indenture Trustee, the
Servicer will agree to perform certain administrative tasks on behalf of the
Trust imposed on the Trust under the Indenture. The Notes will be issued
pursuant to the Indenture to be dated as of May 16, 2001 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and The
Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee"). The Seller
will form the Trust pursuant to a Trust Agreement (as amended and supplemented
from time to time, the "Trust Agreement") to be dated as of May 16, 2001 between
the Seller and Wilmington Trust Company, as owner trustee (the "Owner Trustee").
The Certificates, each representing a fractional undivided interest in the
Trust, will be issued pursuant to the Trust Agreement.
Xxxxx Fargo acquired all of the Receivables from Xxxxx Fargo
Leasing Corporation d/b/a Xxxxx Fargo Auto Finance, Inc. ("Xxxxx Fargo
Finance"), a wholly owned subsidiary of Xxxxx Fargo. Xxxxx Fargo Finance will
sell or has sold the Receivables to Xxxxx Fargo pursuant to the terms of a
Purchase Agreement (as amended and supplemented from time to time, the "Loan
Sale Agreement") dated as of May 16, 2001 between Xxxxx Fargo and Xxxxx Fargo
Finance. The Receivables acquired by Xxxxx Fargo will be sold by Xxxxx Fargo to
the Seller pursuant to the terms of a Purchase Agreement (as amended and
supplemented from time to time, the "Purchase Agreement") dated as of May 16,
2001 between the Seller and Xxxxx Fargo.
Capitalized terms used and not otherwise defined herein shall
have the meanings given them in the preliminary prospectus or, if not defined
therein, as defined in the Sale and Servicing Agreement. As used herein, the
term "Basic Documents" refers to the Sale and Servicing Agreement,
Administration Agreement, Indenture, Trust Agreement, Loan Sale Agreement,
Purchase Agreement, the letter agreement in the form of Exhibit A hereto (as
amended and supplemented from time to time, the "Letter Agreement"), any demand
note issued by Xxxxx Fargo (the "Demand Note") and Note Depository Agreement.
2. Representations and Warranties of the Seller. The Seller represents
and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-53920), including a
form of prospectus, relating to the Notes has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement is
hereinafter referred to as the "Registration Statement," and the
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prospectus included in such Registration Statement, as supplemented to reflect
the terms of the Notes as first filed with the Commission after the date of this
Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under
the Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus;" a "preliminary prospectus" means any form of prospectus, including
any prospectus supplement, relating to the Notes used prior to date of this
Agreement that is subject to completion; the "Base Prospectus" means the base
prospectus dated May 7, 2001 included in the Prospectus; the "Prospectus
Supplement" means the prospectus supplement dated the date hereof included in
the Prospectus .
(b) On the effective date of the Registration Statement, such
registration statement conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission promulgated under the
Act (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. The preceding
sentence does not apply to the part of the Registration Statement that
constitutes the statement of eligibility of the Indenture Trustee on Form T-1.
On the date of this Agreement the Registration Statement and the preliminary
prospectus conform, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes or will include any
untrue statement of a material fact or omits or will omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading. The preceding sentence does not apply to statements in or
omissions from such documents based upon written information furnished to the
Seller by the Representative specifically for use therein, it being understood
that the only such information consists of the Underwriters' Information (as
defined in Section 7(f)).
(c) The Notes are "asset backed securities" within the meaning of, and
satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder.
(e) Each of the Seller, Xxxxx Fargo Finance, the Administrator and
Xxxxx Fargo is a corporation or a national banking association, as applicable,
duly organized, validly existing and in good standing under the laws of its
respective state of incorporation, as applicable, is duly qualified to transact
business in each jurisdiction in which it is required to be so qualified and has
all necessary licenses, permits and consents to conduct its business as
presently conducted and as described in the Prospectus and to perform its
obligations under the Basic Documents except where the failure to be so
qualified or to have such licenses, permits or consents would not have a
material adverse affect on the Seller, Xxxxx Fargo Finance, the Administrator or
Xxxxx Fargo, as applicable or on its ability to perform its obligations under
the Basic Documents.
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(f) This Agreement and the Letter Agreement have been duly authorized,
executed and delivered by each of the Seller and Xxxxx Fargo, as applicable.
Each of the Basic Documents to which it is a party (other than the Letter
Agreement) has been duly authorized and, when executed and delivered by the
Seller, Xxxxx Fargo Finance, the Administrator and Xxxxx Fargo, will constitute
a valid and binding agreement of each of the Seller, Xxxxx Fargo Finance, the
Administrator and Xxxxx Fargo, enforceable against the Seller, Xxxxx Fargo
Finance, the Administrator and Xxxxx Fargo in accordance with its terms, subject
as to the enforcement of remedies (x) to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting creditors' rights
generally, (y) to general principles of equity (regardless of and whether the
enforcement of such remedies is considered in a proceeding in equity or at law),
and (z) with respect to rights of indemnity under this Agreement and the Letter
Agreement to limitations of public policy under applicable securities laws.
(g) None of the Seller, Xxxxx Fargo Finance, the Administrator or Xxxxx
Fargo is in breach or violation of any credit or security agreement or other
agreement or instrument to which it is a party or by which it or its properties
may be bound, or in violation of any applicable law, statute, regulation or
ordinance or any governmental body having jurisdiction over it, which breach or
violation would have a material and adverse effect on its ability to perform its
obligations under this Agreement or any of the Basic Documents, in each case, to
which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Seller, Xxxxx Fargo or any affiliate thereof or the
Underwriters, any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(i) Neither Xxxxx Fargo nor the Seller has entered into, nor will it
enter into, any contractual arrangement with respect to the distribution of the
Notes, except for this Agreement.
(j) The Trust is not an "investment company" and is not required to be
registered as an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and
warranties of the Seller, Xxxxx Fargo Finance, the Administrator and Xxxxx
Fargo, in each of their respective capacities under each of the Basic Documents,
to which each is a party will be true and correct in all material respects as of
the date of such representation or warranty was given and each such
representation and warranty is so incorporated herein by this reference.
(l) The Seller has filed the preliminary prospectus supplement relating
to the Notes pursuant to and in accordance with Rule 424(b).
(m) The Certificates, when duly and validly executed by the Owner
Trustee, authenticated and delivered in accordance with the Trust Agreement, and
delivered to and paid for pursuant hereto will be validly issued and outstanding
and entitled to the benefits of the Trust Agreement.
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(n) The Trust's assignment of the Collateral to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the benefit of
the Noteholders, a first priority perfected security interest therein, subject
to no other outstanding Lien.
(o) The Notes, when duly and validly executed by the Indenture Trustee,
authenticated and delivered in accordance with the Indenture, and delivered and
paid for pursuant hereto will be enforceable in accordance with their terms,
subject as to enforceability to the effects of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar laws
now or hereafter in effect relating to creditors' rights generally and subject
to general principles of equity (whether in a proceeding at law or in equity).
(p) Neither the execution, delivery or performance of any of the Basic
Documents by the Seller, Xxxxx Fargo Finance, the Administrator or Xxxxx Fargo,
nor the issuance, sale and delivery of the Notes or Certificates, nor the
fulfillment of the terms of the Notes or Certificates, will conflict with, or
result in a breach, violation or acceleration of, or constitute a default under,
any term or provision of the articles of incorporation or the By-laws of the
Seller or Xxxxx Fargo Finance or the articles of association or By-laws of Xxxxx
Fargo or the Administrator, any material indenture or other material agreement
or instrument to which the Seller, Xxxxx Fargo Finance, the Administrator or
Xxxxx Fargo is a party or by which either of them or their properties is bound
or result in a violation of or contravene the terms of any statute, order or
regulation applicable to the Seller, Xxxxx Fargo Finance, the Administrator or
Xxxxx Fargo of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Seller, Xxxxx Fargo Finance, the
Administrator or Xxxxx Fargo, or will result in the creation of any lien upon
any material property or assets of the Seller, Xxxxx Fargo Finance, the
Administrator or Xxxxx Fargo (other than pursuant to the Basic Documents).
(q) Other than as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Seller, Xxxxx Fargo Finance, the
Administrator or Xxxxx Fargo is a party or of which any of its properties is the
subject, which if determined adversely to the Seller, Xxxxx Fargo Finance, the
Administrator or Xxxxx Fargo would individually or in the aggregate have a
material adverse effect on the financial position, shareholders' equity or
results of operations of any of them; and to the best of the Seller's, Xxxxx
Fargo Finance, the Administrator's or Xxxxx Fargo's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
others.
(r) No consent, license, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance of the Notes and Certificates or sale of the Notes or the consummation
of the other transactions contemplated by this Agreement or the Basic Documents,
except such as have been or will have been prior to the Closing Date duly made
or obtained.
(s) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus as amended prior to the date hereof,
there has not been any material adverse change, or any development which could
reasonably be expected to result in a material adverse change, in or affecting
the financial position, shareholders' equity or results of operations of the
Seller, Xxxxx Fargo Finance, the Administrator or Xxxxx Fargo, or the
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Seller's, Xxxxx Fargo Finance, the Administrator's or Xxxxx Fargo's ability to
perform its obligations under this Agreement or any of the Basic Documents to
which it is a party.
(t) Any taxes, fees and other governmental charges owed by Xxxxx Fargo,
Xxxxx Fargo Finance, the Administrator, the Seller, the Trust or the Servicer
due on or prior to the Closing Date (including, without limitation, sales taxes)
in connection with the execution, delivery and issuance of this Agreement, the
Basic Documents and the Securities have been or will have been paid at or prior
to the Closing Date.
(u) The Receivables transferred by Xxxxx Fargo Finance to Xxxxx Fargo
are chattel paper as defined in the Uniform Commercial Code as in effect in the
State of California. The Receivables transferred by Xxxxx Fargo to the Seller
are chattel paper as defined in the Uniform Commercial Code as in effect in the
States of New York and California. The Receivables transferred by the Seller to
the Trust are chattel paper as defined in the Uniform Commercial Code as in
effect in the States of Minnesota and New York.
(v) Under generally accepted accounting principles, (i) Xxxxx Fargo
Finance will report its transfer of the Receivables transferred by it to Xxxxx
Fargo pursuant to the Loan Sale Agreement as a sale of the Receivables for
financial accounting purposes, (ii) Xxxxx Fargo will report its transfer of the
Receivables transferred by it to the Seller pursuant to the Purchase Agreement
as a sale of the Receivables for financial accounting purposes and (iii) the
Seller will report its transfer of the Receivables to the Trust pursuant to the
Sale and Servicing Agreement as a sale of the Receivables for financial
accounting purposes (it being understood, however, that the sales described in
clauses (i) and (ii) may not be recognized for accounting purposes due to the
application of consolidated financial reporting).
(w) Immediately prior to the transfer thereof by Xxxxx Fargo Finance to
Xxxxx Fargo pursuant to the Loan Sale Agreement, Xxxxx Fargo Finance was the
sole owner of all right, title and interest in, and had good and marketable
title to the Receivables and the other property to be transferred to Xxxxx
Fargo. Xxxxx Fargo Finance, pursuant to the Loan Sale Agreement, has transferred
to Xxxxx Fargo ownership of the Receivables, the security interest in the
Financed Vehicles securing the Receivables and the proceeds of each of the
foregoing. Immediately prior to the transfer thereof to the Seller pursuant to
the Purchase Agreement, Xxxxx Fargo is the sole owner of all right, title and
interest in, and has good and marketable title to the Receivables and the other
property to be transferred to the Seller. Xxxxx Fargo, pursuant to the Purchase
Agreement, will transfer to the Seller ownership of the Receivables, the
security interest in the Financed Vehicles securing the Receivables and the
proceeds of each of the foregoing. Immediately prior to the transfer thereof to
the Trust, the Seller will be the sole owner of all right, title and interest
in, and will have good and marketable title to, the Receivables and the other
property to be transferred by it to the Trust. The assignment of the
Receivables, all documents and instruments relating thereto and all proceeds
thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the
Trust all interests which are purported to be conveyed thereby, free and clear
of any liens, security interests or encumbrances.
(x) Immediately prior to the transfer of the Receivables by Xxxxx Fargo
Finance to Xxxxx Fargo, Xxxxx Fargo's interest in the Receivables and the
proceeds thereof has been perfected by Wells Fargo having taken possession of
all chattel paper evidencing such
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Receivables and the filing of UCC-1 financing statements naming Xxxxx Fargo
Finance, as debtor and Xxxxx Fargo, as secured party (the "Xxxxx Fargo Finance
Financing Statements") in the offices specified in Schedule I and there shall be
no unreleased UCC financing statements filed against the Receivables other than
the Xxxxx Fargo Finance Financing Statements. If a court concludes that the
transfer of the Receivables from Xxxxx Fargo Finance to Xxxxx Fargo is a sale,
the interest of Xxxxx Fargo in the Receivables and the proceeds thereof will be
perfected upon Xxxxx Fargo having possession of all chattel paper evidencing
such Receivables and the filing of the Xxxxx Fargo Finance Financing Statements
in the office of the Secretary of State of the State of California. If a court
concludes that such transfer is not a sale, the Loan Sale Agreement and the
transactions contemplated thereby constitute a grant by Xxxxx Fargo Finance to
Xxxxx Fargo of a valid security interest in the Receivables and the proceeds
thereof, which security interest will be perfected by Wells Fargo having
possession of all chattel paper evidencing such Receivables or the filing of the
Xxxxx Fargo Finance Financing Statements in the office of the Secretary of State
of the State of California. No filing or other action, other than the filing of
the Xxxxx Fargo Finance Financing Statements in the office of the Secretary of
State of the State of California, is necessary to perfect and maintain the
interest or the security interest of Xxxxx Fargo in the Receivables and the
proceeds thereof against third parties.
(y) Immediately prior to the transfer of the Receivables by Xxxxx Fargo
to the Seller, the Seller's interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 financing statements naming Xxxxx
Fargo, as debtor, the Seller, as secured party and the Indenture Trustee, as
assignee (the "Xxxxx Fargo Financing Statements") in the offices specified in
Schedule I and there shall be no unreleased UCC financing statements filed
against Xxxxx Fargo in the Receivables other than the Xxxxx Fargo Financing
Statements. If a court concludes that the transfer of the Receivables from Xxxxx
Fargo to the Seller is a sale, the interest of the Seller in the Receivables and
the proceeds thereof will be perfected upon the filing of the Xxxxx Fargo
Financing Statements in the office of the Secretary of State of the State of
California. If a court concludes that such transfer is not a sale, the Loan
Purchase Agreement and the transactions contemplated thereby constitute a grant
by Xxxxx Fargo to the Seller of a valid security interest in the Receivables and
the proceeds thereof, which security interest will be perfected upon the filing
of the Xxxxx Fargo Financing Statements in the office of the Secretary of State
of the State of California. No filing or other action, other than the filing of
the Xxxxx Fargo Financing Statements in the office of the Secretary of State of
the State of California, is necessary to perfect and maintain the interest or
the security interest of the Seller in the Receivables and the proceeds thereof
against third parties.
(z) Immediately prior to the transfer of the Receivables by the Seller
to the Trust, the Trust's interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 Financing Statements naming the
Seller, as debtor, the Trust, as secured party and the Indenture Trustee, as
assignee (the "Seller Financing Statements") in the offices specified in
Schedule I and there shall be no unreleased UCC financing statements filed
against the Seller in the Receivables other than the Seller Financing
Statements. If a court concludes that the transfer of the Receivables from the
Seller to the Trust is a sale, the interest of the Trust in the Receivables and
the proceeds thereof will be perfected upon the filing of the Seller Financing
Statements in the office of the Secretary of State of the State of Minnesota. If
a court concludes that such transfer is not a sale, the Sale and Servicing
Agreement and the transactions contemplated thereby constitute a grant by the
Seller to the Trust of a valid security interest in
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the Receivables and the proceeds thereof, which security interest will be
perfected upon the filing of the Seller Financing Statements in the office of
the Secretary of State of the State of Minnesota. No filing or other action,
other than the filing of the Seller Financing Statements in the office of the
Secretary of State of the State of Minnesota referred to above and any related
continuation statements, is necessary to perfect and maintain the interest or
the security interest of the Trust in the Receivables and the proceeds thereof
against third parties.
(aa) The Indenture and the transactions contemplated thereby constitute
a grant by the Trust to the Indenture Trustee of a valid security interest in
the Receivables and the proceeds thereof, which security interest will be
perfected upon the filing UCC-1 Financing Statements naming the Trust, as debtor
and the Indenture Trustee, as secured party (the "Trust Financing Statements")
in the offices specified in Schedule I and the Indenture Trustee's taking
possession of the Demand Note and there shall be no unreleased UCC financing
statements filed against the Trust in the Receivables other than the Trust
Financing Statements. No filing or other action, other than the filing of the
Trust Financing Statements in the office of the Secretary of State of the State
of Minnesota referred to above and any related continuation statements, is
necessary to perfect and maintain the interest or the security interest of the
Indenture Trustee in the Receivables and the proceeds thereof against third
parties.
(bb) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended.
(cc) The Indenture has been qualified under the Trust Indenture Act of
1939, as amended.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Trust, the principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule II hereto at a purchase
price equal to the product of the "Price %" as specified on Schedule III hereto
for such class of Notes and the principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule II hereto, plus accrued
interest from May 16, 2001.
The Seller will deliver the Notes to the Underwriters, against payment
of the purchase price to or upon the order of the Seller by wire transfer in
federal (same day) funds, at the office of Xxxxxx Xxxxxx Xxxxx & Xxxx, Bank Xxx
Xxxxx, 00 X. Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, at 10:00 a.m., Chicago time on
May 16, 2001, or at such other time not later than seven full business days
thereafter as the Underwriters and the Seller agree in writing, such time being
herein referred to as the "Closing Date." The Notes to be so delivered will be
initially represented by one or more Notes registered in the name of Cede & Co.,
the nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive Notes will be available only under
the limited circumstances specified in the Basic Documents.
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4. Offering by Underwriter. It is understood that, the Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers), on the terms set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with the
Underwriters that:
(a) The Seller will file the Prospectus, with the Commission pursuant
to and in accordance with subparagraph (2) (or, if applicable and if consented
to by the Representative, subparagraph (5)) of Rule 424(b) no later than the
second business day following the date it is first used. The Seller will advise
the Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will not
effect such amendment or supplementation without the consent of the
Representative, which consent shall not be unreasonably withheld or delayed; and
the Seller will advise the Representative promptly of any amendment or
supplementation of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement and 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.
(c) If, at any time when a prospectus relating to the Notes is required
to be delivered by an Underwriter or dealer either (i) 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 state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Seller promptly will notify the Representative of such event and promptly will
prepare, at its own expense, an amendment or supplement which will correct such
statement or omission. Neither the Representative's consent to, nor the
Underwriters' distribution of any amendment or supplement to the Prospectus
shall constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) The Seller will, so long as delivery of a prospectus by an
underwriter or dealer is required by the Act, furnish to the Underwriters copies
of any preliminary prospectus, the Prospectus, the Registration Statement and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative reasonably requests.
(e) The Seller will take all actions which are necessary to arrange for
the qualification of the Notes for offering and sale under the laws of such
jurisdictions as the Representative designates and will continue such
qualifications in effect so long as required under such laws for the
distribution of the Notes; provided, however, that in no event shall the Seller
be obligated to qualify as a foreign corporation or to execute a general or
unlimited consent or take any action that would subject it to service of process
in any such jurisdiction.
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(f) The Seller shall, at all times upon request of the Representative
or its advisors, or both, from the date hereof through the Closing Date, (i)
make available to the Underwriters or its advisors, or both, prior to acceptance
of its purchase, such information (in addition to that contained in the
Registration Statement and the Prospectus) concerning the offering, the Seller
and any other relevant matters as they possess or can acquire without
unreasonable effort or expense, including any and all documentation requested in
connection with its due diligence efforts regarding information in the
Registration Statement and the Prospectus and in order to evidence the accuracy
or completeness of any of the conditions contained in this Underwriting
Agreement and (ii) provide the Underwriters or its advisors, or both, prior to
acceptance of its subscription, the reasonable opportunity to ask questions of
the Seller and Xxxxx Fargo with respect to such matters.
(g) Until the retirement of the Notes, the Seller will deliver to the
Representative the annual statements of compliance and the annual independent
certified public accountants' reports furnished to the Indenture Trustee
pursuant to the Basic Documents, as soon as such statements and reports are
furnished to the Indenture Trustee.
(h) So long as any of the Notes are outstanding, the Seller will
furnish to the Representative (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or filed
with the Commission on behalf of the Seller pursuant to the Exchange Act, or any
order of the Commission thereunder and (ii) from time to time, any other
information concerning the Seller or Xxxxx Fargo as the Representative may
reasonably request only insofar as such information relates to the Registration
Statement or the Prospectus or the transactions contemplated by the Basic
Documents.
(i) On or before the Closing Date, the Seller shall cause the computer
records of the Seller, Xxxxx Fargo Finance and Xxxxx Fargo relating to the
Receivables to show the ownership by the Owner Trustee on behalf of the Trust of
the Receivables, and from and after the Closing Date none of the Seller, Xxxxx
Fargo Finance, the Administrator or Xxxxx Fargo shall take any action
inconsistent with the ownership by the Owner Trustee on behalf of the Trust of
such Receivables, other than as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that any of the ratings provided with
respect to the Notes by the rating agency or agencies that initially rate any of
the Notes are conditioned upon the furnishing of documents or the taking of any
other actions by the Seller or Xxxxx Fargo on or prior to the Closing Date, the
Seller shall or shall cause Xxxxx Fargo to furnish such documents and take any
such other actions. A copy of any such documents shall be provided to the
Representative at the time it is delivered to the rating agencies.
(k) The Seller will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the printing and filing of the
documents (including the Registration Statement and the Prospectus), (ii) the
preparation, issuance and delivery of the Notes to the Underwriters, (iii) the
fees and disbursements of the Seller's, Xxxxx Fargo Finance, the Administrator's
and Xxxxx Fargo's counsel (including without limitation, local counsel) and
accountants, (iv) the qualification of the Notes under state securities laws,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any blue sky or legal investment survey, if
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any is requested, (v) the printing and delivery to the Underwriters of copies of
the Registration Statement and the Prospectus and each amendment thereto, (vi)
the reasonable expenses of the Underwriters (other than its counsel), (vii) the
fees and reasonable expenses of counsel to the Underwriters, (viii) any fees
charged by rating agencies for the rating of the Notes, (ix) the fees and
expenses of the Indenture Trustee and its counsel and (x) the fees and expenses
of the Owner Trustee, the Trust and each of their counsel.
6. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Notes will be subject to the
accuracy, as of the date hereof and as of the Closing Date, of the
representations and warranties of the Seller herein, to the accuracy of the
written statements of officers of the Seller and Xxxxx Fargo made pursuant to
the provisions of this Section, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the date
hereof, of Xxxxx & Young, LLP confirming that such accountants are independent
public accountants within the meaning of the Act and the Rules and Regulations,
and substantially in the form of the drafts to which the Representative has
previously agreed and otherwise in form and substance satisfactory to the
Representative and counsel for the Underwriters (i) regarding certain numerical
information contained in the Prospectus and (ii) relating to certain agreed-upon
procedures.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof. On or 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, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the Receivables or particularly the business
or properties of the Trust, the Seller, Xxxxx Fargo Finance, the Administrator
or Xxxxx Fargo which, in the sole discretion of the Representative, materially
impairs the investment quality of the Notes; (ii) any downgrading in the rating
of any securities of Xxxxx Fargo by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any such debt securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, American Stock Exchange, or
NASDAQ National Market, or any setting of minimum or maximum prices for trading
on such exchange; (iv) any suspension of trading of any securities of Xxxxx
Fargo on any exchange, the NASDAQ National Market or in the over-the-counter
market; (v) any banking moratorium declared by Federal or New York authorities;
or (vi) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war or national emergency by Congress, or
any other substantial national or international calamity or emergency if, in the
sole judgment of the Representative, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it makes it impractical or
inadvisable to proceed with the public
-11-
12
offering or the delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
(d) On the Closing Date, each of the Basic Documents and the Securities
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default shall exist thereunder, and the
Owner Trustee shall have received a fully executed copy thereof or, with respect
to the Notes, a conformed copy thereof. The Basic Documents and the Securities
shall be substantially in the forms heretofore provided to the Representative.
(e) The Representative shall have received an opinion of Xxxxxx Xxxxxx
Xxxxx & Xxxx, special counsel to the Seller, Xxxxx Fargo, the Administrator and
Xxxxx Fargo Finance, dated the Closing Date, satisfactory in form and substance
to the Representative, to the effect that:
(i) The Trust has been duly formed as a common law trust and
is validly existing under the laws of the state of New York,
with full trust power and authority to own its properties and
conduct its business as described in the Prospectus.
(ii) This Agreement and the Letter Agreement are the legal,
valid and binding obligation of the Seller and Xxxxx Fargo,
respectively. The Basic Documents to which it is a party have
been duly authorized, executed and delivered by the Trust.
(iii) The Basic Documents (other than the Letter Agreement and
the Trust Agreement) to which each of the Seller, the Trust,
Xxxxx Fargo, the Administrator and Xxxxx Fargo Finance is a
party are the legal, valid and binding obligation of the
Seller, Xxxxx Fargo, the Administrator, Xxxxx Fargo Finance
and the Trust, enforceable against the Seller, Xxxxx Fargo,
the Administrator, Xxxxx Fargo Finance and the Trust in
accordance with their terms, subject as to enforceability to
the effects of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar
laws now or hereafter in effect relating to creditors' rights
generally and subject to general principles of equity (whether
in a proceeding at law or in equity).
(iv) When the Notes have been duly executed, authenticated and
delivered in accordance with the Indenture and paid for
pursuant to this Agreement, the Notes will be validly issued
and outstanding and enforceable in accordance with their
terms, subject as to enforceability to the effects of
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws now or hereafter in
effect relating to creditors' rights generally and subject to
general principles of equity (whether in a proceeding at law
or in equity).
(v) To the best of such counsel's knowledge, there are no
contracts or documents of the Seller which are required to be
filed as exhibits to the
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Registration Statement pursuant to the Act or the Rules or
Regulations which have not been so filed.
(vi) The Registration Statement became effective under the Act
on March 23, 2001 and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof or any amendment
thereto has been issued under the Act and no proceeding for
that purpose has been instituted or threatened by the
Commission.
(vii) The Seller is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus and
this Agreement become, an "investment company" as defined in
the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or a company "controlled by" an
"investment company" within the meaning of the Investment
Company Act.
(viii) The Trust Agreement need not be qualified under the
Trust Indenture Act and the Trust is not required to register
under the Investment Company Act.
(ix) The Indenture has been duly qualified under the Trust
Indenture Act.
(x) The Class A-1 Notes constitute "eligible securities"
within the meaning of Rule 2a-7 promulgated under the
Investment Company Act.
(xi) The statements in the Prospectus Supplement under the
headings "Summary of Terms of the Notes -- Material United
States Federal Income Tax Consequences," "Material United
States Federal Income Tax Consequences," "Summary of Terms --
ERISA Considerations," and "ERISA Considerations," and in the
Base Prospectus under the headings "Material United States
Federal Income Tax Consequences" and "ERISA Considerations,"
to the extent that they constitute statements of matters of
law or legal conclusions with respect thereto, have been
reviewed by such counsel and accurately describe the material
consequences to holders of the Notes under the Code and ERISA.
(xii) The Notes will be properly characterized as debt under
federal and California State law and the Trust will not be
characterized as an association (or publicly traded
partnership) taxable as a corporation under federal and
California state income and franchise tax law.
(xiii) The Registration Statement as of its effective date and
the Prospectus as of the date of this Agreement, and any
amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the
Act and the applicable Rules and Regulations (except with
respect to the financial statements, the exhibits, annexes and
other financial, statistical, numerical or portfolio data,
economic conditions or financial condition of the portfolio
information included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus
or any amendment or supplement thereto.
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14
(xiv) No facts have come to their attention which cause them
to believe that the Registration Statement as of its effective
date, and the Prospectus, as of the date of this Agreement,
and any amendment or supplement thereto, as of its date when
it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus on its date contained or
on the Closing Date contains, any untrue statement of 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 that such counsel need not
express any view with respect to the financial, statistical or
computational material included in or incorporated by
reference into the Registration Statement, the Prospectus or
any amendment or supplement thereto.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the States of New York, California and Delaware.
(f) The Representative shall have received the opinion or opinions of
in-house counsel to Wells Fargo, the Administrator and the Seller and/or such
other counsel acceptable to the Representative and counsel for the Underwriters,
dated the Closing Date, satisfactory in form and substance to the Representative
and counsel for the Underwriters to the effect that:
(i) The Seller has been duly formed and is validly existing as
a corporation in good standing under the laws of the state of
its incorporation, with full corporate power and authority to
own its properties and conduct its business, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which its failure to qualify would have a
material adverse effect upon transactions contemplated by the
Basic Documents and its business or the ownership of its
property.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller. The Basic Documents to which it is a
party have been duly authorized, executed and delivered by the
Seller.
(iii) The Seller has full power and authority to sell and
assign the property to be sold and assigned to the Trust by it
pursuant to the Sale and Servicing Agreement and has duly
authorized such sale and assignment to the Trust by all
necessary corporate action.
(iv) The Seller has duly authorized, executed and delivered
the written order to the Owner Trustee to execute and deliver
the Issuer Order to the Indenture Trustee.
(v) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the
Certificates.
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(vi) Neither the execution, delivery and performance by the
Seller of the Basic Documents to which it is a party, nor the
consummation by the Seller of the transactions contemplated
thereby will conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Seller,
pursuant to the terms of the formation documents of the Seller
or any statute, rule, regulation or order of any governmental
agency or body, or any court having jurisdiction over the
Seller or its properties, or any agreement or instrument known
to me after due investigation to which the Seller is a party
or by which the Seller or any of its properties is bound.
(vii) No authorization, license, approval, consent or order
of, or filing with, any court or governmental agency or
authority is necessary in connection with the execution,
delivery and performance of this Agreement and each of the
Basic Documents to which it is a party by the Seller.
(viii) To the best of the knowledge of such counsel, there are
no legal or governmental proceedings pending to which the
Seller is a party or of which any property of the Seller is
the subject, and no such proceedings are known to such counsel
to be threatened or contemplated by governmental authorities
or threatened by others (i) asserting the invalidity of all or
any part of this Agreement or any of the Basic Documents or
(ii) that could materially adversely affect the ability of the
Seller to perform its obligations under any of the Basic
Documents to which either is a party.
(ix) Each of Xxxxx Fargo Finance, the Administrator and Xxxxx
Fargo has been duly organized and is validly existing as a
corporation and national association, respectively, in good
standing under the laws of its jurisdiction of organization,
with full power and authority to own its properties and
conduct its business, and is duly qualified to transact
business and is in good standing in each jurisdiction in which
its failure to qualify would have a material adverse effect
upon the business or the ownership of its property or the
transactions contemplated by the Basic Documents.
(x) This Agreement has been duly authorized, executed and
delivered by Xxxxx Fargo Finance, the Administrator and Xxxxx
Fargo. The Basic Documents to which it is a party have been
duly authorized, executed and delivered by Xxxxx Fargo
Finance, the Administrator and Xxxxx Fargo.
(xi) Each of Xxxxx Fargo Finance, the Administrator and Xxxxx
Fargo has full corporate power and authority to enter into the
Basic Documents to which it is a party and has duly authorized
entering into such documents by all necessary corporate
action.
(xii) Neither the execution, delivery and performance by any
of Xxxxx Fargo Finance, the Administrator and Xxxxx Fargo of
the Basic Documents to which it is a party, nor the
consummation by any of Xxxxx Fargo Finance, the
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Administrator or Xxxxx Fargo of the transactions contemplated
thereby will conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of any of Xxxxx
Fargo Finance, the Administrator or Xxxxx Fargo, pursuant to
the terms of the certificate of incorporation or the by-laws
of any of Xxxxx Fargo Finance, the Administrator or Xxxxx
Fargo or any statute, rule, regulation or order of any
governmental agency or body, or any court having jurisdiction
over any of Xxxxx Fargo Finance, the Administrator and Xxxxx
Fargo or its properties, or any agreement or instrument known
to me after due investigation to which Xxxxx Fargo Finance,
the Administrator or Xxxxx Fargo is a party or by which Xxxxx
Fargo or any of its properties is bound.
(xiii) To the best of the knowledge of such counsel, there are
no legal or governmental proceedings pending to which any of
Xxxxx Fargo Finance, the Administrator or Xxxxx Fargo is a
party or of which any property of Xxxxx Fargo Finance, the
Administrator or Xxxxx Fargo is the subject, and no such
proceedings are known to such counsel to be threatened or
contemplated by governmental authorities or threatened by
others (i) asserting the invalidity of all or any part of this
Agreement or any of the Basic Documents or (ii) that could
materially adversely affect the ability of Xxxxx Fargo
Finance, the Administrator or Xxxxx Fargo to perform its
obligations under any of the Basic Documents to which either
is a party.
(xiv) Based on the factual representations of Xxxxx Fargo
Finance and Xxxxx Fargo Bank, in each case contained in the
certificates attached to the opinion, regarding their standard
operating procedures with respect to the acquisition of first
priority perfected security interests in the vehicles financed
by Xxxxx Fargo Finance and Xxxxx Fargo pursuant to retail
installment sales contracts in the ordinary course of their
respective businesses, and without independent verification
thereof, and assuming compliance by each of Xxxxx Fargo
Finance and Xxxxx Fargo with such standard operating
procedures, either Xxxxx Fargo Finance or Xxxxx Fargo has
acquired or will acquire a perfected first priority security
interest in the Financed Vehicles securing the Receivables
sold to the Seller.
(xv) No authorization, license, approval, consent or order of,
or filing with, any court or governmental agency or authority,
which has not been obtained or accomplished by Seller,
Administrator or Xxxxx Fargo, is necessary to be obtained or
accomplished by Seller, Administrator or Xxxxx Fargo in
connection with the execution, delivery and performance of
this Agreement and each of the Basic Documents to which it is
a party by the Seller, Administrator or Xxxxx Fargo.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of
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any jurisdiction other than the federal law of the United States of America, the
General Corporation Law of the State of Delaware and the laws of the State of
California.
(g) The Representative shall have received the opinions of Xxxxxx
Xxxxxx Xxxxx & Xxxx and/or Xxxxxx & Xxxxxx dated the Closing Date, satisfactory
in form and substance to the Representative and counsel for the Underwriters to
the effect that:
(i) The Receivables conveyed by Xxxxx Fargo Finance to Xxxxx
Fargo and by Xxxxx Fargo to the Seller are chattel paper as
defined in the Uniform Commercial Code as in effect in the
State of California. The Receivables conveyed by the Seller to
the Trust and the Receivables pledged by the Trust to the
Indenture Trustee are chattel paper as defined in the Uniform
Commercial Code as in effect in the State of Minnesota.
(ii) The transfer of the Receivables and the proceeds thereof
by Xxxxx Fargo Finance to Xxxxx Fargo pursuant to the Loan
Sale Agreement constitutes either (i) a valid sale, transfer
and assignment of the Receivables and the proceeds thereof
from Xxxxx Fargo Finance to Xxxxx Fargo or (ii) the grant of a
security interest therein favor of Xxxxx Fargo, which security
interest has attached. In either case the provisions of the
Loan Sale Agreement are sufficient to create a valid and
enforceable security interest in favor of Xxxxx Fargo in Xxxxx
Fargo Finance's right, title and interest in the Receivables
and the proceeds thereof. Such security interest in the
Receivables and all identifiable cash proceeds thereof will be
perfected upon the filing of the Xxxxx Fargo Finance Financing
Statements and the security interest of Xxxxx Fargo in the
Receivables described in the Xxxxx Fargo Finance Financing
Statements will have priority over all other security
interests in such Receivables which are perfected by the
filing of the financing statements in California subsequent to
the filing of the Xxxxx Fargo Finance Financing Statements.
(iii) Pursuant to Section 9-103 of the Uniform Commercial Code
as in effect in the State of California (the "California UCC")
and Minnesota (the "Minnesota UCC") , (i) perfection of a
possessory security interest in chattel paper is governed by
the law of the jurisdiction where the chattel paper is located
"when the last event occurs on which is based the assertion
that the security interest is perfected or unperfected" and
(ii) perfection of a non-possessory security interest in
chattel paper is governed by the law (including the conflict
of laws rules) of the jurisdiction in which the debtor has its
place of business, if it has only one place of business, or at
its chief executive office, if it has more than one place of
business.
(iv) Based solely upon the UCC Reports (x) there are no
financing statements on file which describe the Receivables as
collateral and naming Xxxxx Fargo Finance as debtor in the
office of the California Secretary of State and (y) there are
no notices of the filing of any tax liens or liens of the
Pension Benefit Guaranty Corporation ("PBGC") against Xxxxx
Fargo Finance filed pursuant to Section 6323 of the Internal
Revenue Code or Section 408 of ERISA in the office
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of the California Secretary of State. Such office is the only
office having files which must be searched in order to
determine whether any security interests in the Receivables
have been perfected by filing and to determine the existence
of any federal tax liens or PBGC liens on such property.
(v) Based on counsel's understanding that Xxxxx Fargo gave new
value to Xxxxx Fargo Finance for the purchase of each
Receivable and took possession of the chattel paper evidencing
such Receivable in the ordinary course of its business and
without knowledge that the specific paper was subject to a
security interest, Xxxxx Fargo's interest in each such
Receivable would be prior to any other security interest in
the chattel paper created by Xxxxx Fargo Finance.
(vi) The transfer of the Receivables and the proceeds thereof
by Xxxxx Fargo to the Seller pursuant to the Purchase
Agreement constitutes either (i) a valid sale, transfer and
assignment of the Receivables and the proceeds thereof from
Xxxxx Fargo to the Seller or (ii) the grant of a security
interest therein favor of the Seller, which security interest
has attached. In either case the provisions of the Purchase
Agreement are sufficient to create a valid and enforceable
security interest in favor of the Seller in Xxxxx Fargo's
right, title and interest in the Receivables and the proceeds
thereof. Such security interest in the Receivables and all
identifiable cash proceeds thereof will be perfected upon the
filing of the Xxxxx Fargo Financing Statements and the
security interest of the Seller in the Receivables described
in the Xxxxx Fargo Financing Statements will have priority
over all other security interests in such Receivables which
are perfected by the filing of the financing statements in
California subsequent to the filing of the Xxxxx Fargo
Financing Statements.
(vii) Based solely upon the UCC Reports (x) there are no
financing statements on file which describe the Receivables as
collateral and naming Xxxxx Fargo as debtor in the office of
the California Secretary of State and (y) there are no notices
of the filing of any tax liens or liens of the Pension Benefit
Guaranty Corporation ("PBGC") against Xxxxx Fargo filed
pursuant to Section 6323 of the Internal Revenue Code or
Section 408 of ERISA in the office of the California Secretary
of State. Such office is the only office having files which
must be searched in order to determine whether any security
interests in the Receivables have been perfected by filing and
to determine the existence of any federal tax liens or PBGC
liens on such property.
(viii) The transfer of the Receivables (and the other Trust
Property including the Demand Note) and the proceeds thereof
by the Seller to the Trust pursuant to the Sale and Servicing
Agreement constitutes either (i) a valid sale, transfer and
assignment of the Receivables (and the other Trust Property
including the Demand Note) and the proceeds thereof from
Seller to the Trust or (ii) the grant of a security interest
therein favor of the Trust, which security interest has
attached. In either case the provisions of the Sale and
Servicing Agreement are sufficient to create a valid and
enforceable security interest in favor of the Trust in
Seller's right, title and interest in the Receivables (and the
other Trust Property
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including the Demand Note) and the proceeds thereof. Such
security interest in the Receivables (and in the other Trust
Property in which a security interest may be perfected by
filing) and all identifiable cash proceeds thereof will be
perfected upon the filing of the Seller Financing Statements
and the security interest of the Trust in the Receivables (and
in the other Trust Property in which a security interest may
be perfected by filing) described in the Seller Financing
Statements will have priority over all other security
interests in such Receivables (and in the other Trust Property
in which a security interest may be perfected by filing) which
are perfected by the filing of the financing statements in
California or Minnesota subsequent to the filing of the Seller
Financing Statements. Such security interest in the Demand
Note and all identifiable cash proceeds thereof will be
perfected upon the Trust's taking possession of the Demand
Note and the security interest of the Trust in the Demand Note
will have priority over all other security interests in the
Demand Note.
(ix) Based solely upon the UCC Reports (x) there are no
financing statements on file which describe the Receivables as
collateral and naming Seller as debtor in the office of the
California or Minnesota Secretary of State and (y) there are
no notices of the filing of any tax liens or liens of the
Pension Benefit Guaranty Corporation ("PBGC") against Seller
filed in such offices ----- pursuant to Section 6323 of the
Internal Revenue Code or Section 408 of ERISA. Such offices
are the only office having files which must be searched in
order to determine whether any security interests in the
Receivables (and the other Collateral that may be perfected by
filing) have been perfected by filing and to determine the
existence of any federal tax liens or PBGC liens on such
property.
(x) The pledge of the Receivables (and the other Collateral
including the Demand Note) and the proceeds thereof by the
Trust to the Indenture Trustee pursuant to the Indenture
constitutes the grant of a security interest therein favor of
the Indenture Trustee, which security interest has attached.
The provisions of the Indenture are sufficient to create a
valid and enforceable security interest in favor of the
Indenture Trustee in Trust's right, title and interest in the
Receivables (and the other Collateral in which a security
interest may be perfected by filing) and the proceeds thereof.
Such security interest in the Receivables (and the other
Collateral in which a security interest may be perfected by
filing) and all identifiable cash proceeds thereof will be
perfected upon the filing of the Trust Financing Statements
and the security interest of the Indenture Trustee in the
Receivables (and the other Collateral that may be perfected by
filing) described in the Trust Financing Statements will have
priority over all other security interests in such Receivables
(and the other Collateral in which a security interest may be
perfected by filing) which are perfected by the filing of the
financing statements in California or Minnesota subsequent to
the filing of the Trust Financing Statements. Such security
interest in the Demand Note and all identifiable cash proceeds
thereof will be perfected upon the Trust's taking possession
of the Demand Note and the security interest of the Trust in
the Demand Note will have priority over all other security
interests in the Demand Note.
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(xi) Based solely upon the UCC Reports (x) there are no
financing statements on file which describe the Receivables
(and the other Collateral including the Demand Note) as
collateral and naming the Trust as debtor in the office of the
California or Minnesota Secretary of State and (y) there are
no notices of the filing of any tax liens or liens of the
Pension Benefit Guaranty Corporation ("PBGC") against Trust
filed in such offices pursuant to Section 6323 of the -----
Internal Revenue Code or Section 408 of ERISA. Such offices
are the only office having files which must be searched in
order to determine whether any security interests in the
Receivables (and the other Collateral that may be perfected by
filing) have been perfected by filing and to determine the
existence of any federal tax liens or PBGC liens on such
property.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the laws of the States of New York, California and
Minnesota.
(h) The Representative shall have received an opinion addressed to it
of Xxxxxx Xxxxxx Xxxxx & Xxxx, in its capacity as counsel to the Seller, dated
the Closing Date, with respect to the creation of (x) a "true sale" with respect
to the transfers of the Receivables from Xxxxx Fargo Finance to Xxxxx Fargo, (y)
a "true sale" or a valid and binding security interest with respect to the
transfers of the Receivables from Xxxxx Fargo to the Seller and (z) with respect
to the transfer of the Receivables and the Demand Note to the Trust, a "true
sale" or a valid and binding security interest in the Receivables and the Demand
Note. Such opinions shall be limited to the laws of the States of New York and
California and United States federal law.
(i) The Representative shall have received an opinion of Xxxxxx &
Xxxxxx, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Indenture Trustee has been duly organized as a banking
corporation and is validly existing and in good standing under
the laws of the State of New York.
(ii) The Indenture Trustee has the requisite power and
authority to execute, deliver and perform its obligations
under the Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of the
Indenture.
(iii) The Indenture has been duly executed and delivered by
the Indenture Trustee and constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its
respective terms, except that such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity
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(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the Indenture
Trustee in accordance with the terms of the Indenture.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(j) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Owner Trustee is a banking corporation duly
incorporated and organized and validly existing under the laws
of the State of Delaware.
(ii) The Owner Trustee has the full corporate trust power to
accept the office of owner trustee under the Trust Agreement
and to enter into and perform its obligations under the Basic
Documents to which it is a party.
(iii) The execution and delivery of the Basic Documents to
which it is a party, and the performance by the Owner Trustee
of its obligations under the Basic Documents to which it is a
party have been duly authorized by all necessary action of the
Owner Trustee and each has been duly executed and delivered by
the Owner Trustee.
(iv) The Basic Documents to which it is a party constitutes
the valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with its
terms.
(v) The execution and delivery by the Owner Trustee of the
Basic Documents to which it is a party do not require any
consent, approval or authorization of, or any registration or
filing with, any applicable governmental authority.
(vi) Each of the Notes and Certificates has been duly executed
and delivered by the Owner Trustee, on behalf of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement,
the Indenture or the Trust Agreement nor the fulfillment of
the terms thereof by the Owner Trustee will conflict with,
result in a breach or violation of, or constitute a default
under any law of the United States of America or the State of
Delaware governing its banking or trust powers or the charter,
by-laws or other organizational documents of the Owner
Trustee.
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(viii) No approval, authorization or other action by, or
filing with, any governmental authority of the United States
of America or the State of Delaware having jurisdiction over
the banking or trust powers of the Owner Trustee is required
in connection with the execution and delivery by the Owner
Trustee of the Basic Documents to which it is a party.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the States of New York and Delaware.
(k) Reserved.
(l) The Representative shall have received copies of each opinion of
counsel delivered to the Rating Agencies, together with a letter addressed to
the Underwriters, dated the Closing Date, to the effect that the Underwriters
may rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(m) The Representative shall have received a certificate dated the
Closing Date of Xxxxx Fargo Finance, executed by any two of the Chairman of the
Board, the President, any Executive Vice President, Senior Vice President or
Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the
principal financial officer or the principal accounting officer of Xxxxx Fargo
Finance, in which such officers shall state that, (i) the representations and
warranties of Xxxxx Fargo Finance contained in the Basic Documents to which it
is a party are true and correct, (ii) that Xxxxx Fargo Finance has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (iii) since
December 31, 2000, except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of Xxxxx Fargo Finance has occurred.
(n) The Representative shall have received a certificate dated the
Closing Date of the Seller, executed by any two of the Chairman of the Board,
the President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of the Seller, in which
such officer shall state that, (i) the representations and warranties of the
Seller contained in this Agreement and the Basic Documents to which it is a
party are true and correct, (ii) that the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date, and (iii) since December
31, 2000, except as may be disclosed in the Prospectus or in such certificate,
no material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Seller has occurred.
(o) The Representative shall have received a certificate dated the
Closing Date of Wells Fargo, executed by any two of the Chairman of the Board,
the President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer,
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the Secretary, the principal financial officer or the principal accounting
officer of Xxxxx Fargo in which such officer shall state that (i) the
representations and warranties of Xxxxx Fargo contained in the Basic Documents
to which it is a party are true and correct, (ii) that Xxxxx Fargo has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date and (iii) since
December 31, 2000, except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of Xxxxx Fargo has occurred.
(p) The Representative shall have received evidence satisfactory to it
and counsel for the Underwriters that, on or before the Closing Date, the Xxxxx
Fargo Finance Financing Statements, the Xxxxx Fargo Financing Statements, the
Seller Financing Statements and the Trust Financing Statements shall have been
submitted to the Owner Trustee or Indenture Trustee, as the case may be, for
filing in the appropriate filing offices.
(q) The Class A-1 Notes shall be rated in the highest short-term rating
category by each of Xxxxx'x and S&P, the Class A-2 Notes, Class A-3 Notes and
Class A-3 Notes shall be rated "AAA" or its equivalent, in each case by Xxxxx'x
and S&P, the Class B Notes shall be rated "A" or its equivalent, in each case by
Xxxxx'x and S&P and the Class C Notes shall be rated in the "BBB" category or
its equivalent, in each case by Xxxxx'x and S&P and neither corporation shall
have placed the Notes under surveillance or review with possible negative
implications.
(r) The Seller will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
and all losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any
amendment thereto, the Base Prospectus, any preliminary
prospectus or the Prospectus Supplement or any amendment or
supplement thereto, or
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the Base
Prospectus, any preliminary prospectus or the Prospectus
Supplement or any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the
statements therein not misleading,
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and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Seller will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon (i) any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or any amendment thereto, the Base Prospectus, any
preliminary prospectus, the Prospectus Supplement or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Seller by such Underwriter through the Representative specifically for use
therein and (ii) the failure of such Underwriter to send or give to any
purchaser, at or prior to the written confirmation of the sale of Notes to such
person, a copy of any amended or supplemented Base Prospectus or Prospectus
Supplement under circumstances where the Seller has furnished copies of such an
amended or supplemented Base Prospectus or Prospectus Supplement to the
Underwriters in a reasonable amount of time in advance of the purchase of Notes
that were the subject of loss, claim, damage or liability and the untrue
statement or omission of material fact contained in the prior Base Prospectus or
Prospectus Supplement was corrected in the Base Prospectus or Prospectus
Supplement, as so amended or supplemented. The written information furnished by
the Representative to the Seller consists solely of the information set forth in
the first paragraph, second paragraph and the second sentence of the third
paragraph under the heading "Underwriting" in the Prospectus Supplement (the
"Underwriters' Information") . The indemnity provided for in this Section 7
shall be in addition to any liability which the Seller may otherwise have. The
Seller will not, without the prior written consent of the Representative, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the Representative or any person who
controls the Representative is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any indemnified party.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Seller, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Seller
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Seller or any such director, officer or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, the Base
Prospectus, any preliminary prospectus or the Prospectus Supplement or any
amendment or supplement thereto or (ii) the omission or the alleged omission to
state in the Registration Statement or any amendment thereto, the Base
Prospectus any preliminary prospectus or the Prospectus Supplement or any
amendment or supplement thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the Underwriters' Information, and, subject to the limitation
set forth
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immediately preceding this clause, xxxx xxxxxxxxx, as incurred, any legal or
other expenses reasonably incurred by the Seller or any such director, officer
or controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or any action in respect thereof. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 7, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this paragraph
(c), the "indemnifying party"), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under 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 to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; 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 one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 7 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated in writing by the Representative in the
case of paragraph (a) of this Section 7, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions), or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
All fees and expenses reimbursed pursuant to this paragraph (c) shall be
reimbursed as they are incurred. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable or insufficient, for
any reason, to hold
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harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Seller on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from such offering (before deducting expenses)
received by the Seller bear to the total underwriting discounts and commissions
received by the Underwriters (the "Spread"). The relative fault of the parties
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 Seller or the
Underwriters, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Seller and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the Spread with respect to the Securities
purchased by such Underwriter under this Agreement, less the aggregate amount of
any damages that such Underwriter has otherwise been required to pay in respect
of the same or any substantially similar claim, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute hereunder are several in proportion to their respective underwriting
obligations, and not joint, and contributions among Underwriters shall be
governed by the provisions of the Deutsche Banc Xxxx. Xxxxx Inc. Master
Agreement Among Underwriters. For purposes of this paragraph (d), each person,
if any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Seller, each officer
of the Seller who signed the Registration Statement and each person, if any, who
controls the Seller within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Seller.
8. Default of Underwriter. If, at the Closing, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased on such date, the other
Underwriters may make arrangements satisfactory to the Representative for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the
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Representative), but if no such arrangements are made by the Closing Date, the
other Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule II hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representative may specify, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date. If, at the Closing, any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate principal amount
of Securities with respect to which such default occurs is more than ten percent
of the aggregate principal amount of Securities to be purchased, and
arrangements satisfactory to the Representative and the Seller for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Seller, except as provided in Section 9. In any such case
either the Representative or the Seller shall have the right to postpone the
Closing, but in no event for longer than seven 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. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 8. Any action taken under this Section 8 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in certificates of officers of the Seller submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Seller or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase of
the Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by the Seller pursuant to
Section 5(k) and the respective obligations of the Seller, the Seller and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason the
purchase of the Notes by the Underwriters is not consummated (other than because
of a failure to satisfy the conditions set forth in items (iii), (v) and (vi) of
Section 6(c) or a default by the Underwriters pursuant to Section 8), the Seller
will reimburse the Underwriters for all out-of-pocket expenses reasonably
incurred by it in connection with the offering of the Notes.
10. Notices. Any written request, demand, authorization, direction,
notice, consent or waiver shall be personally delivered or mailed certified
mail, return receipt requested (or in the form of telex or facsimile notice,
followed by written notice as aforesaid) and shall be deemed to have been duly
given upon receipt, if sent to the Underwriters, when delivered to the
Representative at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx (fax # (000)-000-0000) and if sent to the Seller when delivered to
Sixth and Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Xxxx X.
Xxxxxxxxx, Senior Counsel (Fax # (000) 000-0000).
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and
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controlling persons referred to in Section 7, and no other person will have any
right or obligations hereunder.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to the
choice of law provisions thereof.
14. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Seller and the
Underwriters in accordance with its terms.
Very truly yours,
XXXXX FARGO AUTO RECEIVABLES CORPORATION
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first written above.
DEUTSCHE BANC ALEX. BROWN INC.
By: /s/ Xxxx Xxxx
---------------------------
Name: Xxxx Xxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Acting on behalf of itself and as the
Representative of the Several
Underwriters
30
SCHEDULE I
OFFICES
For Xxxxx Fargo Finance: California Secretary of State
For Xxxxx Fargo: California Secretary of State
For the Seller: Minnesota Secretary of State
For the Trust: Minnesota Secretary of State
31
SCHEDULE II
Initial Initial Initial Initial
Principal Principal Principal Initial Principal Initial Principal Principal
Balance of Balance of Balance of Balance of Balance of Balance of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class B Notes Class C Notes
-------------------- --------------- --------------- --------------- ----------------- ----------------- -------------
Deutsche Banc Xxxx
Xxxxx Inc. $ 66,850,000 $ 83,650,000 $ 72,800,000 $23,635,500 $ 9,332,000 $ 5,600,000
Xxxxxx Xxxxxxx & Co.
Incorporated $ 66,850,000 $ 83,650,000 $ 72,800,000 $23,635,500 $ 9,332,000 $ 5,600,000
Xxxxx Fargo Brokerage
Services, Inc.
$ 57,300,000 $ 71,700,000 $ 62,400,000 $20,259,000 $ 0 $ 0
Total $191,000,000 $239,000,000 $208,000,000 $67,530,000 $18,664,000 $11,200,000
32
SCHEDULE III
Original
Principal Investor
Security Balance $ Price % Price % Rate %
-------- --------- ------- ------- ------
Class A-1 Notes $191,000,000 100.000000% 99.875000% 4.030%
Class A-2 Notes $239,000,000 99.999836% 99.809836% 4.250%
Class A-3 Notes $208,000,000 99.988572% 99.738572% 4.680%
Class A-4 Notes $67,530,000 99.999643% 99.714643% 5.070%
Class B Notes $18,664,000 99.993077% 99.643077% 4.910%
Class C Notes $11,200,000 99.997594% 99.547594% 5.500%
Total Price to Public: $735,368,035.14
Total Price to Seller: $733,847,000.64
Underwriting Discounts
and Commissions: $ 1,521,034.50
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EXHIBIT A
34
May 8, 2001
Deutsche Banc Xxxx. Xxxxx Inc.
as Representative of the several Underwriters
named in Schedule II hereto
c/o Deutsche Banc Xxxx. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Underwriting Agreement for Xxxxx Fargo Auto Trust 2001-A, dated May 8,
2001 the "Underwriting Agreement") between Xxxxx Fargo Auto Receivables
Corporation (the "Seller"), and Deutsche Banc Xxxx. Xxxxx Inc., as
representative (the "Representative") of the several underwriters (the
"Underwriters").
Dear Ladies and Gentlemen:
Pursuant to the Underwriting Agreement, the Seller has undertaken
certain financial obligations with respect to the indemnification of the
Underwriters with respect to the Registration Statement, and the Prospectus
described in the Underwriting Agreement. Any financial obligations of the Seller
under the Underwriting Agreement, whether or not specifically enumerated in this
paragraph, are hereinafter referred to as the "Joint and Several Obligations;"
provided, however, that "Joint and Several Obligations" shall mean only the
financial obligations of the Seller under the Underwriting Agreement (including
the payment of money damages for a breach of any of the Seller's obligations
under the Underwriting Agreement, whether financial or otherwise) but shall not
include any obligations not relating to the payment of money.
As a condition of its execution of the Underwriting Agreement, the
Underwriters have required the undersigned, Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo"), the parent of the Seller, to acknowledge its joint
and several liability with the Seller for the payment of the Joint and Several
Obligations under the Underwriting Agreement.
Now, therefore, the Underwriters and Xxxxx Fargo do hereby agree that:
1. Xxxxx Fargo hereby agrees to be absolutely and unconditionally jointly and
severally liable with the Seller to the Underwriters for the payment of the
Joint and Several Obligations under the Underwriting Agreement.
2. Xxxxx Fargo may honor its obligations hereunder either by direct payment of
any Joint and Several Obligations or by causing any Joint and Several
Obligations to be paid to the Underwriters by the Seller or another affiliate of
Xxxxx Fargo.
35
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Underwriting Agreement.
Very truly yours,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
By:_____________________
Name:
Title:
DEUTSCHE BANC XXXX. BROWN INC.
By:________________________
Name:
Title:
By:________________________
Name:
Title:
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