Exhibit 1.1
NORWEST AUTO TRUST 1996-A
5.465% CLASS A-1 ASSET BACKED NOTES
5.800% CLASS A-2 ASSET BACKED NOTES
5.900% CLASS A-3 ASSET BACKED NOTES
6.100% CLASS A-4 ASSET BACKED NOTES
6.300% ASSET BACKED CERTIFICATES
NORWEST AUTO RECEIVABLES CORPORATION
(Seller)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Servicer)
UNDERWRITING AGREEMENT
New York, New York
November 5, 1996
Xxxxxx Brothers Inc.,
As Representative (the "Representative")
of the Several Underwriters
listed on Schedule I hereto
Ladies and Gentlemen:
Norwest Auto Receivables Corporation, a Delaware corporation (the
"Seller") and a wholly-owned limited-purpose subsidiary of Norwest
Corporation, a Delaware corporation, proposes to sell to the underwriters
named in Schedule I hereto (the "Underwriters") $350,000,000.00 aggregate
principal amount of 5.465% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), $340,000,000.00 aggregate principal amount of 5.800% Class A-2
Asset Backed Notes (the "Class A-2 Notes,"), $220,000,000.00 aggregate
principal amount of 5.900% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), $120,140,000.00 aggregate principal amount of 6.100% Class A-4
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the "Notes") and $34,259,000.00 aggregate principal amount of certificates
designated 6.300% Asset Backed Certificates, (the "Certificates" and,
together with the Notes, the "Securities") issued by the Norwest Auto Trust
1996-A (the "Trust"). Each Note will be secured by the Contracts (as
hereinafter defined) and certain other property of the Trust and each
Certificate will represent a fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, a pool of motor
vehicle installment sales contracts secured by new and used automobiles and
light-duty trucks (the "Contracts") and certain monies received thereunder
after October 25, 1996 (the "Cutoff Date"), such Contracts to be sold to
the Trust by the Seller and to be serviced for the Trust by Norwest Bank
Minnesota, N.A., a national banking association (the "Servicer").
Each Affiliate (as hereinafter defined) will convey to the Seller the
Contracts owned by it pursuant to a Purchase Agreement (each, a "Purchase
Agreement") to be dated as of the Closing Date (as hereinafter defined)
between such Affiliate and the Seller. The Contracts will be conveyed by
the Seller to the Trust pursuant to a Sale and Servicing Agreement to be
dated as of the Closing Date (the "Sale and Servicing Agreement"), among
the Seller, the Servicer and Wilmington Trust Company, as trustee (the
"Owner Trustee"). The Notes will be issued pursuant to an Indenture to be
dated as of the Closing Date (the "Indenture"), between the Trust and Chase
Manhattan Bank, as indenture trustee (the "Indenture Trustee"). Wilmington
Trust Company will agree to perform certain administrative tasks pursuant
to an Administration Agreement to be dated as of the Closing Date (the
"Administration Agreement"). The Certificates, each representing a
fractional undivided interest in the Trust, will be issued pursuant to a
Trust Agreement to be dated as of the Closing Date (the "Trust Agreement"),
between the Seller and the Trustee. Capitalized terms used herein without
definition shall have the meanings set forth in the Sale and Servicing
Agreement. References herein to "you" are to the Representative. Norwest
Corporation ("Norwest") has agreed to become a party to this Agreement
solely for purposes of Sections 1(d), 1(g), 1(h), 1(j), 7 and 10 hereunder.
Section 1. Representations and Warranties of the Seller. Each of
Norwest (with respect to Norwest only, and as to paragraphs (d), (g), (h)
and (j) only) and the Seller represents and warrants to, and agrees with,
each Underwriter as set forth in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (a) hereof.
(a) A registration statement on Form S-3 (No. 333-7961),
including a form of prospectus and such amendments thereto as may
have been required to the date hereof, relating to the Securities and
the offering thereof in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission") and such
registration statement, as amended, has become effective. The
Seller, as registrant, will file with the Commission a final
prospectus (including the base prospectus and any prospectus
supplement) in accordance with Rule 424(b). As filed, such final
prospectus, except to the extent that you shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Seller has advised you,
prior to the Execution Time, will be included or made therein. No
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of Seller, threatened by the
Commission.
As used herein, the term the "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Preliminary Prospectus" shall mean
any preliminary prospectus (including the base prospectus and any
prospectus supplement) included in the Registration Statement at or
prior to the time the Registration Statement became effective or was
used prior to the Execution Time. Prospectus" shall mean the
prospectus (including the base prospectus (the "Base Prospectus") and
any prospectus supplement (the "Prospectus Supplement")) relating to
the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time. "Registration Statement" shall mean the registration
statement referred to in the preceding paragraph, including
incorporated documents, exhibits and financial statements, in the
form in which it has become effective and, in the event any
post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended (but only from and after the
effectiveness of such amendment). "Rule 424" means Rule 424 of the
Act. "Affiliate" means each Person (other than the Seller) that is a
party to a Purchase Agreement. "Basic Documents" shall mean each
Purchase Agreement, the Affiliate Security Agreement, the Sale and
Servicing Agreement, the Indenture, the Administration Agreement, the
Trust Agreement, this Agreement, the Securities, and the Depository
Agreements. "Participating Entity" means each of Norwest, the
Seller, the Servicer and each Affiliate.
(b) On the Effective Date, the Registration Statement did and,
when the Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date, the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations"); on the Effective Date, the
Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; and, on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that Seller
does not make any representations or warranties as to the information
contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by you
specifically for use in connection with preparation of the
Registration Statement or the Prospectus (or any supplement thereto).
The Seller hereby agrees with the Representative and the Underwriters
that, for all purposes of this Agreement, the only information
furnished to the Seller by the Underwriters through the
Representative expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, and any
preliminary prospectus (the "Underwriter Information") are the first
sentence of the paragraph immediately below the pricing table with
respect to the terms of the offering on the cover page of the
Prospectus Supplement, the capitalized paragraph with respect to
stabilizing transactions in secondary markets in the Securities on
page S-2 of the Prospectus Supplement, and the statements in the
paragraph below the table under the caption "Underwriting" in the
Prospectus Supplement.
(c) The Computer Tape created as of October 25, 1996 (the
"Tape"), and made available to you by the Servicer was complete and
accurate in all material respects as of the date thereof and includes
a description of the Contracts that are described in the List of
Contracts.
(d) Each of the Seller and Norwest is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and the Servicer is an association duly
organized, validly existing and in good standing as a licensed
national banking association under the laws of the United States, and
each of the Seller, Norwest and the Servicer has all requisite power
and authority to own its properties and conduct its business as
presently conducted and to execute, deliver and perform the Basic
Documents to which it is a party, to authorize the issuance of the
Securities as contemplated by the Basic Documents and to consummate
the transactions contemplated by this Agreement.
(e) The Certificates when executed and authenticated by the
Owner Trustee in accordance with the Trust Agreement and delivered
and paid for pursuant to this Agreement, will be duly issued and will
entitle the holder thereof to the benefits afforded by the Trust
Agreement and the Certificates will conform in all material respects
to the description thereof contained in the Registration Statement
and the Prospectus.
(f) No Participating Entity is in violation of its certificate
of incorporation, articles of association or by-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or any of its property may be bound, which
violation or default would have a material adverse effect on the
transaction contemplated herein or in the Basic Documents; neither
the sale of the Securities to you, nor the execution and delivery by
any Participating Entity of the Basic Documents nor the consummation
by any Participating Entity of the transactions herein or therein
contemplated, nor the compliance by any Participating Entity with the
provisions hereof or thereof, will conflict with or result in a
breach of, or constitute (with or without notice or lapse of time or
both) a default under, the certificate of incorporation, articles of
association or by-laws of any Participating Entity or any of the
provisions of any law, governmental rule, regulation, judgment,
decree or order binding on any Participating Entity or its
properties, or any of the provisions of any indenture, mortgage,
contract or other instrument to which any Participating Entity is a
party or by which it is bound, or result in the creation or
imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage,
contract or other instrument except any lien created by any of the
Basic Documents.
(g) This Agreement has been duly authorized, executed and
delivered by Norwest and the Seller.
(h) Each of the Basic Documents to which any Participating
Entity is a party has been duly authorized by such Participating
Entity and, when executed and delivered by such Participating Entity,
will constitute a legal, valid and binding instrument enforceable
against such Participating Entity in accordance with its respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Basic Documents will conform in all material
respects to the description thereof contained in the Registration
Statement and the Prospectus.
(i) Each Affiliate's assignment and delivery to the Seller of
the Contracts of such Affiliate and security interests in the
Financed Vehicles securing such Contracts and the proceeds thereof
will vest in the Seller, and the Seller's assignment and delivery of
the Trust Estate to the Owner Trustee as of the Closing Date will
vest in the Owner Trustee, all of such Affiliate's or the Seller's,
as the case may be, right, title and interest therein, in each case,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(j) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of Seller, threatened before any court,
administrative agency, or other tribunal with respect to any
Participating Entity (i) that is required to be disclosed in the
Registration Statement or the Prospectus, (ii) asserting the
invalidity of any of the Basic Documents, (iii) seeking to prevent
the issuance of the Securities or the consummation of any of the
transactions contemplated by any of the Basic Documents, (iv) that
might materially and adversely affect the performance by any
Participating Entity of its obligations under, or the validity or
enforceability of, any of the Basic Documents, (v) seeking to affect
adversely the Federal or state income, excise, franchise or similar
tax attributes of the Securities described in the Prospectus, or (vi)
that, in the reasonable judgment of the Seller, which would have a
material adverse effect on the transaction contemplated herein or in
the Basic Documents.
(k) No authorization, approval, consent or other order or
action of, or filing or registration with any court or governmental
authority or agency is necessary in connection with the sale of the
Securities hereunder, except such as have been obtained and made
under the Act and the Rules and Regulations or state securities laws.
(l) Seller has delivered to you complete and correct copies of
publicly available portions of the Consolidated Reports of Condition
and Income of the Servicer for the year ended December 31, 1995,
copies of the audited consolidated balance sheets of Norwest which
are included in Norwest's 1996 Annual Report to Stockholders and Form
10-K and the unaudited consolidated balance sheet of Norwest as at
June 30, 1996 and the related consolidated statements of income, cash
flows and stockholders' equity for the six month period then ended.
Except as set forth in or contemplated in the Registration Statement
and the Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of Norwest or the Servicer since
December 31, 1995 which would impair the ability of Norwest or the
Servicer to perform its obligations under the Sale and Servicing
Agreement.
(m) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of the Basic
Documents shall have been paid or will be paid by the Seller at or
prior to the Closing Date to the extent then due.
(n) The representations and warranties of each Participating
Entity contained in the Basic Documents are true and correct in all
material respects.
(o) KPMG Peat Marwick LLP are independent public accountants
with respect to the Seller within the meaning of the Act and the
Rules and Regulations.
(p) Each Participating Entity has obtained all necessary
licenses and approvals in each jurisdiction in which failure to
qualify or obtain such license or approval would render any Contract
unenforceable by the Owner Trustee or the Indenture Trustee, as
applicable, on behalf of any Securityholder.
Section 2. Purchase and Sale. (a)Subject to the terms and
conditions and in reliance upon the covenants, representations and
warranties herein set forth, the Seller agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase, the
Initial Principal Amount (the "Initial Principal Amount") of the Class A-1
Notes, Class A-2 Notes and Certificates set forth opposite such
Underwriter's name in Schedule I hereto. The purchase price (the "Purchase
Price") for the (i) Class A-1 Notes shall be equal to 99.87500% of the
aggregate Initial Principal Amount represented by the Class A-1 Notes, (ii)
Class A-2 Notes shall be equal to 99.7784% of the aggregate Initial
Principal Amount represented by the Class A-2 Notes, (iii) Class A-3 Notes
shall be equal to 99.6631% of the aggregate Initial Principal Amount
represented by the Class A-3 Notes, (iv) Class A-4 Notes shall be equal to
99.6986% of the aggregate Initial Principal Amount represented by the Class
A-4 Notes and (v) Certificates shall be equal to 99.4862% of the aggregate
Initial Principal Amount represented by the Certificates.
(b) Payment for the Securities shall be made to the Seller or to its
order by wire transfer of same day funds at the office of Xxxxx, Xxxxx &
Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00 A.M.
Chicago, Illinois time on November 13, 1996 or at such other place or time
on the same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Seller may agree upon in writing
(the "Closing Date"). As used herein, the term "Business Day" means any
day other than a day on which banks generally are permitted or required to
be closed in New York, New York or Minneapolis, Minnesota. Payment of the
Purchase Price shall be made against delivery to the Representative of the
Securities which will be initially represented by one or more certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interest of beneficial owners of the Securities will
be represented by book entries on the records of DTC and participating
members thereof. Definitive securities will be available only under the
limited circumstances set forth in the Indenture and the Trust Agreement.
Section 3. Covenants of the Seller. The Seller covenants and agrees
with you that:
(a) The Seller will advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus, and
will not effect such amendment or supplement without your consent,
which consent will not unreasonably be withheld, the Seller will also
advise you promptly of the effectiveness of or request by the
Commission for any amendment or supplement of the Registration
Statement or the Prospectus and of the institution or threatening by
the Commission of any stop order proceedings in respect of the
Registration Statement and of the receipt by the Seller of
notification with respect to the suspension of the qualification of
the Notes or Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Seller will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to any of the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the Seller promptly
will notify the Representative and prepare and file, or cause to be
prepared and filed, with the Commission and furnish to the
Representative and any dealers identified by the Representative, an
amendment or supplement which will correct such statement or
omission, or an amendment or supplement which will effect such
compliance.
(c) As soon as practicable, but not later than fourteen months
after the end of Seller's current fiscal quarter, the Seller will
cause the Owner Trustee to make generally available to
Securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 of the rules and regulations thereunder.
(d) The Seller will furnish you copies of the Registration
Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and
all amendments and supplements to such documents, in each case as
soon as available and in such quantities as you may reasonably
request. The Seller will furnish or cause to be furnished to the
Representative copies of all reports on Form SR required by Rule 463
under the Act.
(e) The Seller will arrange for the qualification of the
Securities for offering and sale under the laws of such jurisdictions
in the United States as you may reasonably designate and will
continue such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Seller
shall not be required to qualify to do business in any jurisdiction
where it is not so qualified or to take any action which would
subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) So long as any of the Securities are outstanding, the
Seller will, or will cause the Servicer to, promptly furnish to you,
copies of (i) all documents required to be distributed to
Securityholders, Security Owners or filed with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any order of the Commission thereunder issued to
the Seller or the Servicer, (ii) copies of each Servicer's Report
and the annual statements of compliance delivered to the Owner
Trustee or Indenture Trustee pursuant to Article IV of the Sale and
Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to Owner Trustee or
Indenture Trustee pursuant to Article IV of the Sale and Servicing
Agreement, by first-class mail at the same time such statements and
reports are furnished to the Owner Trustee or Indenture Trustee,
(iii) copies of each amendment to any of the Basic Documents, (iv)
copies of all other reports and communications to any Securityholders
or Security Owners, or to or from the Owner Trustee or Indenture
Trustee, the Clearing Agency, any Rating Agency or the Commission
relating to the Trust or the Securities, (v) copies of each Opinion
of Counsel and Officer's Certificate delivered pursuant to the Sale
and Servicing Agreement, as soon as available, and (vi) from time to
time, such other information concerning the Trust or the Seller as
the Representative may reasonably request.
(g) On or before the Closing Date, the Seller shall cause the
computer records relating to the Contracts to be marked to show the
Owner Trustee's absolute ownership of the Contracts, and shall not
permit any Participating Entity to take any action inconsistent with
the Owner Trustee's ownership of such Contracts, other than as
permitted by the Basic Documents.
(h) If required, the Seller will prepare, and file or transmit
the Prospectus for filing with the Commission in accordance with Rule
424(b) of the Act.
(i) If required by law, the Seller will register the
Securities pursuant to the Exchange Act, prior to April 29, 1997.
(j) To the extent, if any, that the rating provided with
respect to the Securities by the Rating Agency or Agencies that
initially rate the Securities is conditional upon the furnishing of
documents or the taking of any other actions by any Participating
Entity, the Seller shall furnish or cause such other Participating
Entity to furnish such documents and take any such other actions.
Section 4. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, filing and delivery under the Act
of the Registration Statement as originally filed and of each amendment
thereto, the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (ii) the issuance
and delivery of the Securities to the Underwriters, (iii) the fees and
disbursements of all counsel and accountants (other than that portion of
the fees and disbursements of Xxxxx, Xxxxx & Xxxxx which were incurred
solely in their role as Underwriters' counsel, which portion will be paid
by the Underwriters), (iv) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(e),
including filing fees and the fees and disbursements of counsel for you in
connection therewith and in connection with the preparation of any blue sky
survey, (v) the printing and delivery to you of copies of the Basic
Documents and the blue sky survey (including exhibits, amendments and
supplements thereto), (vi) any fees charged by Rating Agencies for the
rating of the Securities, (vii) the fees, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.,
(viii) any fees and expenses payable to the Clearing Agency, and (ix) any
fees and expenses of the Owner Trustee, the Indenture Trustee and their
respective counsel.
Section 5. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Securities will
be subject to the accuracy of the representations and warranties on the
part of the Seller herein, to the accuracy of the statements of officers of
the Seller made pursuant to the provisions hereof, to the performance by
the Seller of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the Closing Date, you shall have received a
letter, dated as of the Closing Date, of KPMG Peat Marwick LLP,
Certified Public Accountants, substantially in the form of the draft
to which you have previously agreed and otherwise in form and
substance satisfactory, addressed to you and your counsel.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 1 hereof,
and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Seller or you, shall be contemplated by the
Commission or by any authority administering any state securities or
blue sky law.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change in or
affecting particularly the business or properties of any
Participating Entity which, in your reasonable judgment, materially
impairs the investment quality of the Securities; (ii) any
downgrading in the rating of the debt securities (if any) of any
Participating Entity by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
which, in your reasonable judgment, materially impairs the investment
quality of the Securities; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of Norwest on any exchange;
(iv) any banking moratorium declared by Federal, Minnesota or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States of America is involved, any
declaration of war by Congress, or any other substantial national or
international calamity or emergency if, in your reasonable judgment,
the effects of any such outbreak, escalation, declaration, calamity,
or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(d) The Seller shall have delivered to you a certificate,
dated the Closing Date, signed by its President or Treasurer or other
officer acceptable to the Representative to the effect that the
signer of such certificate has carefully examined each Basic
Document, the Prospectus (and any supplement thereto) and the
Registration Statement and that:
(i) the representations and warranties of each
Participating Entity in the Basic Documents are true and correct
at and as of the Closing Date as if made on and as of the
Closing Date (except to the extent they expressly relate to an
earlier date);
(ii) each Participating Entity has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the
Closing Date;
(iii)no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the knowledge of the
signer, threatened; and
(iv) since the date of the most recent financial
statements of Norwest delivered to you pursuant to Section 1(l)
hereof, there has been no material adverse change in the
condition (financial or otherwise) of any Participating Entity
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Registration Statement and the Prospectus, which would impair
the ability of such Participating Entity to perform its
obligations under the Sale and Servicing Agreement and there has
been no material adverse change, or any development involving a
prospective material adverse change, in or affecting
particularly the portfolio of Motor Vehicle Loans of any
Participating Entity or the business or properties of the Trust
or any Participating Entity.
(e) You shall have received from Xxxxxxx X. Xxxxxx, General
Counsel of Norwest, the sole stockholder of the Seller, an opinion
dated the Closing Date to the effect that:
(i) Each Affiliate has been duly organized as an
association licensed as a national banking association and is
validly existing and in good standing under the laws of the
United States, and the Seller and Norwest have been duly
organized and are validly existing as corporations in good
standing under the laws of Delaware and each Participating
Entity is duly qualified to do business and is in good standing
under the laws of each jurisdiction where the failure to so
qualify would have a material adverse impact on the conduct of
its business, and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or
obtain such license or approval would render any Contract
unenforceable by the Owner Trustee or the Indenture Trustee, as
applicable, on behalf of any Securityholder, and has full power
and authority to own its properties, to conduct its business as
described in the Registration Statement and the Prospectus, to
enter into and perform its obligations under the Basic Documents
to which it is a party, to consummate the transactions
contemplated hereby and thereby, and now has the power,
authority and legal right to acquire, own, sell and service the
Contracts;
(ii) each Basic Document has been duly authorized,
executed and delivered by each Participating Entity that is a
party thereto;
(iii)neither the transfer of the Contracts by any
Participating Entity to the Seller or by the Seller to the
Trust, nor the assignment of the security interest of any
Participating Entity or the Seller in the Financed Vehicles, nor
the issuance or sale of the Securities nor the execution nor the
delivery of any Basic Document to which any Participating Entity
or the Seller is a party, nor the issuance or delivery of the
Securities, nor the consummation of any of the transactions
contemplated herein or therein, nor the fulfillment of the terms
of the Securities, or any Basic Document to which any
Participating Entity or the Seller is a party, will conflict
with or violate, result in a material breach of or constitute a
default under (i) any term or provision of the charter or
by-laws of any Participating Entity or the Seller or any statute
or regulation currently applicable to any Participating Entity,
the Seller or the Trust, (ii) any term or provision of any order
known to such counsel to be currently applicable to any
Participating Entity, the Seller or the Trust of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over any Participating Entity, the Seller or
the Trust, as the case may be, or (iii) any term or provision of
any indenture or other agreement or instrument known to such
counsel to which any Participating Entity, the Seller or the
Trust is a party or by which any of them or any of their
properties are bound;
(iv) assuming (i) that the standard procedures of each
Affiliate with respect to the perfection of a security interest
in new or used automobiles or light duty trucks financed
directly or indirectly by such Affiliate pursuant to Motor
Vehicle Loans in the ordinary course of business of such
Affiliate have been followed with respect to the perfection of
security interests in the Financed Vehicles, and (ii) the
genuineness of all signatures and the authority and legal
capacity of all signatories on documents delivered in connection
therewith, such Affiliate has acquired or will acquire a
perfected security interest in the Financed Vehicles;
(v) except, as otherwise disclosed in the Prospectus or
Registration Statement, there is no pending or, to the best of
such counsel's knowledge, threatened action, suit or proceeding
before any court or governmental agency, authority or body or
any arbitrator with respect to any Basic Document or any of the
transactions contemplated therein or with respect to any
Affiliate, the Seller or the Trust which, in the case of any
such action, suit or proceeding with respect to any Affiliate,
the Seller or the Trust, if adversely determined, would have a
material adverse effect on the Securityholders or the Trust or
upon the ability of any Affiliate or the Seller to perform its
obligations under the Basic Documents to which it is a party,
and the statements included in the Registration Statement,
Preliminary Prospectus and Prospectus describing legal
proceedings, contracts and other documents relating to any
Affiliate or the Seller, the Contracts, the business of any
Affiliate, the Seller or the Trust fairly summarize the matters
therein described;
(vi) the Registration Statement has become effective under
the Act, and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(vii)assuming the due authorization, execution and
delivery of each Basic Document (other than this Agreement) by
each party thereto other than the Participating Entities, each
Basic Document (other than this Agreement) has been duly
authorized, executed and delivered by the Participating Entity
that is a party thereto and constitutes the valid and legally
binding obligation of such Participating Entity, enforceable
against such Participating Entity in accordance with its
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to
general equity principles;
(viii)no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or
with any court or governmental agency or body is required for
the consummation by any Affiliate, the Seller or the Trust
(except that, with respect to the Trust, such opinion may be
limited to any court or governmental agency or body of the State
of Minnesota) of the transactions contemplated in the Basic
Documents, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction inside the United States in connection with the
purchase and distribution of the Securities by the Underwriters
and such filings or other approvals as have been made or
obtained; and
(ix) immediately prior to the transfer of Contracts by
each Affiliate pursuant to the applicable Purchase Agreement and
by the Seller pursuant to the Sale and Servicing Agreement, such
Affiliate or the Seller, as applicable, was the sole owner of
all right, title and interest in the Contracts (subject to the
Obligors' rights thereunder as debtor) and the other property to
be transferred by it.
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, as of its effective date, or the Prospectus
(other than the financial statements and related financial and
statistical information therein, as to which such counsel need not
express an opinion), as of its date, contained any untrue statement
of material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
To the extent such opinion involves the application of laws of
any jurisdiction other than the State of Minnesota, the federal law
of the United States and Delaware General Corporation Law, to the
extent deemed proper and stated in such opinion such counsel(s) may
assume that the laws of such other jurisdictions do not differ
materially from the laws of the State of Minnesota, and (B) may rely
as to matters of fact on certificates of responsible officers of the
Trust, any Participating Entity and public officials. References to
the Prospectus in this paragraph (e) include any supplements thereto.
(f) You shall have received an opinion of Xxxxx, Xxxxx &
Xxxxx, special counsel to the Participating Entities, addressed to
you, dated the Closing Date and satisfactory in form and substance to
you and your counsel, to the effect that:
(i) each Participating Entity is validly existing and in
good standing under the laws of its respective jurisdiction of
organization;
(ii) the Underwriting Agreement has been duly authorized,
executed and delivered by Norwest and the Seller;
(iii)each Basic Document (other than the Underwriting
Agreement) has been duly authorized, executed and delivered by
the Participating Entity that is a party thereto and constitutes
the valid and legally binding obligation of such Participating
Entity, enforceable against such Participating Entity in
accordance with its respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditor's rights and to general equity principles;
(iv) no approval, authorization, consent or order of any
court or governmental agency or body which has not already been
obtained or given is required in connection with the valid and
proper assignment of the Contracts by the Affiliates to the
Seller or by the Seller to the Trust, or in connection with the
valid and proper issuance and sale of the Notes and the
Certificates pursuant to the Basic Documents, except for (i) the
filing of Uniform Commercial Code financing statements, and (ii)
the filing with the Securities and Exchange Commission of a Form
8-K containing as exhibits the execution copies of the material
Basic Documents;
(v) the Certificates have been duly and validly
authorized and, assuming their due execution, authentication and
issuance by the Owner Trustee, will be duly and validly issued
and outstanding and will be entitled to the benefits of the
Trust Agreement;
(vi) the Basic Documents each conform in all material
respects with the descriptions thereof contained in the
Registration Statement and the Prospectus;
(vii)the Class A-1 Notes will be "eligible securities"
within the meaning of paragraph (a)(9) of Rule 2a-7 under the
Investment Company Act of 1940, as amended;
(viii)the Trust Agreement is not required to be qualified
and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and neither the Seller nor
the Trust created by the Trust Agreement is required to be
registered under the Investment Company Act of 1940, as amended;
(ix) the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations;
(x) such counsel confirms the Federal income tax
characterization of the Certificates, the Notes and the Trust
and the Federal income tax treatment of the issuance of such
Certificates and Notes set forth under the caption "Federal
Income Tax Consequences" in the Prospectus and Prospectus
Supplement and that the statements in the Registration Statement
and Prospectus under the headings "Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that
they constitute matters of federal law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel
and are correct in all material respects;
(xi) pursuant to the terms of the Purchase Agreements and
the Sale and Servicing Agreement, the applicable Affiliates have
acquired, and have transferred to the Seller, and the Seller has
acquired, and has transferred to the Trust, and the Trust has
acquired, a first priority perfected security interest in the
Minnesota Financed Vehicles, and no filing or other action
(other than certain financing statements required to be filed
pursuant to a separate opinion of Xxxxx, Xxxxx & Xxxxx with
respect to the perfection of the interests in the related
chattel paper) is necessary to perfect the transfer and
assignment of applicable Affiliate's security interest in the
Minnesota Financed Vehicles to Seller and to perfect the
security interest of the Trust in the Minnesota Financed
Vehicles;
(xii)the Contracts constitute "chattel paper" or
"accounts," as those terms are defined in the UCC in effect in
the jurisdiction in which the chief executive office of the
transferring Affiliate is located;
(xiii) each Purchase Agreement constitutes either (i) a
valid sale, transfer and assignment of the Contracts from the
applicable Affiliate to the Seller, which upon filing of the
specified financing statements in the applicable filing offices,
subject to the qualifications expressed in such opinion, will be
enforceable against creditors of, and purchasers from, such
Affiliate or (ii) the creation of a security interest in favor
of the Seller, which upon filing of the specified financing
statements in the applicable filing offices, subject to the
qualifications expressed in such opinion, will be a valid
perfected security interest in the Contracts;
(xiv)the Sale and Servicing Agreement constitutes either
(i) a valid sale, transfer and assignment of the Contracts from
the Seller to the Trust, which upon filing of the specified
financing statements in the applicable filing offices, subject
to the qualifications expressed in such opinion, will be
enforceable against creditors of, and purchasers from, the
Seller or (ii) the creation of a security interest in favor of
the Trust, which upon filing of the specified financing
statements in the applicable filing offices, subject to the
qualifications expressed in such opinion, will be a valid
perfected security interest in the Contracts;
(xv) the Indenture constitutes the creation of a security
interest in favor of the Indenture Trustee, which upon filing of
the specified financing statements in the applicable filing
offices, subject to the qualifications expressed in such
opinion, will be a valid perfected security interest in the
Contracts;
(xvi)to the extent that any Purchase Agreement does not
constitute a valid sale, transfer and assignment of the
Contracts from the applicable Affiliate to the Seller, the
Affiliate Security Agreement constitutes the creation of a
security interest in favor of the Trust, which upon filing of
the specified financing statements in the applicable filing
offices, subject to the qualifications expressed in such
opinion, will be a valid perfected security interest in the
Contracts;
(xvii)when the specified financing statements have been
filed in the applicable filing offices, all filings necessary
under applicable law to perfect (i) the security interest or
ownership interest transferred by each Affiliate in its
Contracts to the Seller pursuant to the Purchase Agreement to
which such Affiliate is a party, (ii) the security interest or
ownership interest transferred by the Seller in the Contracts to
the Trust pursuant to the Sale and Servicing Agreement, and
(iii) the security interest transferred by the Trust in the
Contracts to the Indenture Trustee pursuant to the Indenture,
respectively, will have been made and, provided that such
Affiliate, the Seller and the Trust do not relocate their
respective principal places of business, no other filings (other
than the filing of continuation statements) will need to be made
to maintain the perfection of such interest, and, based solely
on such counsel's review of the applicable lien search reports,
the interest of the Seller, the Trust and the Indenture Trustee,
respectively, will constitute a perfected security or ownership
interest prior to any other security interest not created under
the Basic Documents that may be perfected solely by the filing
of a financing statement under the Uniform Commercial Code as in
effect in the jurisdiction in which each such Affiliate, the
Seller and the Trust, respectively, is located;
(xviii)when the specified financing statements have been
filed in the applicable filing offices, all filings necessary
under applicable law to perfect the security interest granted by
each Affiliate in its Contracts to the Trust pursuant to the
Affiliate Security Agreement will have been made and, provided
that such Affiliate does not relocate its principal place of
business no other filings (other than the filing of continuation
statements) need be made to maintain the perfection of such
interest, and, based solely on such counsel's review of the
applicable lien search reports, the interest of the Trust will
constitute a perfected security interest prior to any other
security interest not created under the Basic Documents that may
be perfected solely by the filing of a financing statement under
the Uniform Commercial Code as in effect in the jurisdiction in
which each such Affiliate is located;
(xix)when the Securities Intermediary acquires an Eligible
Investment using funds in the Reserve Account in accordance with
the Sale and Servicing Agreement and accepts such Eligible
Investment for credit to the Reserve Account, the Indenture
Trustee will have a perfected security interest in the resulting
"security entitlement," as such term is used in Section
8-102(a)(17) of the UCC, and in the proceeds thereof and, by
virtue of the Indenture Trustee's control over the Reserve
Account, the Indenture Trustee's security interest will be prior
to any other security interest in such security entitlement
under the UCC; and
(xx) in the event that the Federal Deposit Insurance
Corporation were to be appointed as conservator or receiver for
any Affiliate pursuant to Section 11(c) of the Federal Deposit
Insurance Act, and a court were to determine that the transfer
to the Seller by such Affiliate pursuant to the Purchase
Agreement of such Affiliate's right, title, and interest in and
to its Contracts was not an absolute sale of those Contracts by
such Affiliate to the Seller, if the matter were properly
briefed and presented, a court would hold that the security
interest granted by such Affiliate under the Affiliate Security
Agreement would be enforceable against such Affiliate
notwithstanding the appointment of the Federal Deposit Insurance
Corporation as receiver or conservator for such Affiliate.
Such counsel shall also state that nothing came to its attention
that would lead such counsel to believe that the Registration
Statement, at the effective date thereof, or the Prospectus, at date
thereof, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading (other than financial and statistical information
contained therein as to which such counsel need express no opinion).
(g) You shall have received from Xxxxx, Xxxxx & Xxxxx, in its
capacity as special counsel for the Participating Entities, a
favorable opinion dated the Closing Date, with respect to the
nonconsolidation under the Bankruptcy Code of the assets and
liabilities of the Seller on the one hand, and those of Norwest, on
the other, in the event Norwest were to become the subject of a case
under the Bankruptcy Code.
(h) You shall have received from Xxxxx, Xxxxx & Xxxxx, in its
capacity as counsel for the Representative, a favorable opinion dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Sale and Servicing Agreement, the Registration
Statement, the Prospectus and such other related matters as the
Representative and the Underwriters may reasonably require; and the
Seller shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on all
such matters.
In giving their opinions, Xxxxx, Xxxxx & Xxxxx may rely (A) as to
matters of Minnesota law upon the opinions of counsel delivered pursuant to
subsection (e) above, (B) as to matters involving the application of laws
of any jurisdiction other than the State of New York, the State of
Illinois, the United States or the General Corporation Law of the State of
Delaware, to the extent deemed proper and specified in such opinion, upon
such standard compilations of applicable law in such jurisdictions or the
opinion of other counsel of good standing believed to be reliable, and (C)
as to matters of fact, to the extent deemed proper and as stated therein on
certificates of responsible officers of the Trust or any Participating
Entity and public officials.
(i) You shall have received an opinion or opinions of Faegre &
Xxxxxx, Minnesota counsel for the Servicer, addressed to you, dated
the Closing Date and satisfactory in form and substance to you and
your counsel, to the effect that (i) the Trust will not be subject to
Minnesota income or franchise taxes, except that if the Trust is
treated as a partnership, it may be subject to the minimum fee
imposed by Minnesota Statutes Section 290.0922, which fee currently
is limited to $5,000 per year, (ii) the Notes will be characterized
as debt for Minnesota income and franchise tax purposes, and (iii)
holders of Notes or Certificates who are not residents of or
otherwise subject to tax in Minnesota will not be subject to
Minnesota income or franchise taxes with respect to income derived
from the Notes or Certificates.
(j) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1
financing statements have been filed in the offices of the
Secretaries of State of Minnesota and any other filing locations
required by any opinion of counsel reflecting the interest of each of
the Seller, the Trust and the Indenture Trustee in the Contracts and
the proceeds thereof.
(k) The Representative and the Seller shall have received from
counsel for the Indenture Trustee a favorable opinion, dated the
Closing Date and satisfactory in form and substance to the
Representative and the Seller and their counsel to the effect that:
(i) the Indenture Trustee is a state banking corporation
duly organized, validly existing and in good standing under the
laws of the State of New York and has full power and authority
to execute, deliver and perform its obligations under the Basic
Documents to which it is a party;
(ii) the Basic Documents to which it is a party have been
duly authorized, executed and delivered by the Indenture Trustee
to which it is a party;
(iii)the Basic Documents to which it is a party constitute
the valid and binding obligations of the Indenture Trustee
enforceable against the Indenture Trustee in accordance with
their terms, except insofar as the validity, binding nature and
enforceability of the Indenture Trustee's obligations thereunder
may be limited by the effect of (i) insolvency, reorganization,
arrangement, moratorium, fraudulent transfer and other similar
laws, (ii) the discretion of any court of competent jurisdiction
in awarding equitable remedies, including, without limitation,
specific performance or injunctive relief and (iii) the effect
of general principles of equity embodied in New York statutes
and common law; provided, however, that such counsel need
express no opinion as to the enforceability of the provisions of
Section 11.17 of the Indenture and Section 10.12 of the Sale and
Servicing Agreement; and
(iv) the Notes have been duly authenticated by the
Indenture Trustee.
(l) The Representative and the Seller shall have received from
counsel for the Trust a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and the
Seller and their counsel to the effect that:
(i) the Trust has been duly formed and is validly
existing as a business trust under Delaware Business Trust Act,
12 Del. C. 3801, et seq., and has the power and authority
under the Trust Agreement and such Act to execute, deliver and
perform its obligations under the Basic Documents;
(ii) the Basic Documents have been duly authorized,
executed and delivered by the Trust and the Certificates have
been validly issued and are entitled to the benefits of the
Trust Agreement;
(iii)the Trust Agreement is a legal, valid and binding
obligation of the Seller and Wilmington Trust, enforceable
against the Seller and Wilmington Trust, in accordance with its
terms;
(iv) neither the execution, delivery and performance by
the Trust of the Basic Documents, nor the consummation by the
Trust of any of the transactions by the Trust contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of
the State of Delaware, other than the filing of the Certificate
of Trust with the Secretary of State of Delaware (which
Certificate of Trust had been duly filed); and
(v) neither the execution, delivery and performance by
the Trust of the Basic Documents, nor the consummation by the
Trust of the transactions contemplated thereby, is in violation
of the Trust Agreement or of any law, rule or regulation of the
State of Delaware applicable to the Trust.
(m) The Representative and the Seller shall have received from
counsel for the Owner Trustee a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Representative and
the Seller and their counsel to the effect that:
(i) Wilmington Trust is duly incorporated and is validly
existing as a banking corporation under the laws of the State of
Delaware and has the power and authority to execute, deliver and
perform the Trust Agreement and the Administration Agreement;
(ii) each of the Trust Agreement and the Administration
Agreement has been duly authorized, executed and delivered by
Wilmington Trust;
(iii)neither the execution, delivery and performance by
Wilmington Trust of the Trust Agreement and the Administration
Agreement, nor the consummation of any of the transactions by
Wilmington Trust contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers
of Wilmington Trust;
(iv) neither the execution, delivery and performance by
Wilmington Trust of the Trust Agreement and the Administration
Agreement, nor the consummation of any of the transactions by
Wilmington Trust contemplated thereby, is in violation of the
charter or bylaws of Wilmington Trust or of any law,
governmental rule or regulation of the State of Delaware or of
the United States of America governing the banking or trust
powers of Wilmington Trust or, to the knowledge of such counsel
of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement
or instrument to which it is a party or by which it is bound or,
to the knowledge of such counsel, of any judgment or order
applicable to Wilmington Trust; and
(v) to the knowledge of such counsel, there are no
proceedings pending or threatened against Wilmington Trust in
any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the
aggregate, would have a material adverse effect on the right,
power and authority of Wilmington Trust to enter into or perform
its obligations under the Trust Agreement and the Administration
Agreement.
(n) On or before the Closing Date, you shall have received
evidence satisfactory to you that the Class A-1 Notes and Class A-2
Notes shall have been rated the highest possible rating by the Rating
Agencies and the Certificates shall have been rated at least "A" by
the Rating Agencies, and neither of the Rating Agencies shall have
placed the Notes or Certificates under review with possible negative
implications.
(o) On the Closing Date, you and your counsel shall have
received any opinion letters delivered by the Seller's counsel to the
Rating Agencies with respect to the rating of the Notes and the
Certificates and such counsel shall deliver a letter to you and your
counsel stating that you and your counsel may conclusively rely on
any such opinion letters.
(p) Any taxes, fees and other governmental charges which are
due and payable in connection with the execution, delivery and
performance of the Basic Documents shall have been paid by Seller at
or prior to the Closing Date.
(q) The Seller shall have made or caused to be made a deposit
in the Reserve Account in the amount of the Reserve Account Initial
Deposit.
(r) The Underwriters and counsel for the Underwriters shall
have received such information, certificates and documents as the
Underwriters or counsel for the Underwriters may reasonably request.
The Seller will provide or cause to be provided to you such
conformed copies of such opinions, certificates, letters and
documents as you reasonably request.
Section 6. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to your
obligations set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Seller to perform any agreement
herein or to comply with any provision hereof other than by reason of a
default by the Underwriters, the Seller will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
Section 7. Indemnification.
(a) Each of Norwest and the Seller jointly and severally
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement or any preliminary prospectus or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that neither Norwest nor the Seller will be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with the Underwriter Information;
provided further, however, that neither the Seller nor Norwest will
be liable to any Underwriter or any person controlling such
Underwriter with respect to any untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or
any amendment or supplement thereto) if the person asserting any such
loss, claim, damage or liability purchased Securities from such
Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented) at or prior to the written confirmation of
the sale of such Securities to such person in any case where such
delivery of the Prospectus (as amended or supplemented) is required
by the Act, unless such failure to deliver the Prospectus (as amended
or supplemented) was a result of noncompliance by the Seller with
this Agreement.
(b) Each Underwriter agrees to indemnify and hold harmless
Norwest, Seller and each person who controls Norwest or Seller within
the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Underwriter Information
in the Registration Statement or the Prospectus or in any amendment
or supplement or any preliminary prospectus or arise out of or are
based upon the omission or alleged omission to state in such
Underwriter Information a material fact required to be stated therein
or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof, but the
omission to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under this Section 7. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled,
jointly with any other indemnifying party similarly notified, to
retain counsel reasonably satisfactory to such indemnified party to
represent the indemnified party in such action; provided, however,
that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the indemnified
party of such counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel, approved by the Underwriters in the case of
paragraph (a) of this Section 7, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of
such indemnified person from all liability on claims that are the
subject matter of such proceeding.
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) or (b) of this Section 7 is due in accordance with its terms but
is for any reason held by a court to be unavailable on grounds of
policy or otherwise, each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating
or defending same) to which the indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Participating Entities on the one hand and the
Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the
Participating Entities on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted
in such losses, claims, damages and liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Participating
Entities on the one hand and the Underwriters on the other, shall be
deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus
bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and each of Norwest and the
Seller is jointly and severally responsible for the balance;
provided, however, that the liability of the Underwriters shall not
exceed in the aggregate the amount of such discount. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
relative fault of the Participating Entities on the one hand and
Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Participating Entities or
by any of the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of the Act
shall have the same rights to contribution as such Underwriter, and
each person who controls Norwest or the Seller within the meaning of
either the Act or the Exchange Act, each officer of the Seller who
shall have signed the Registration Statement and each director of the
Seller shall have the same rights to contribution as Norwest and the
Seller. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may
be made against any other party or parties under this paragraph (d),
notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
(e) Norwest, the Seller and Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified
party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability which the
indemnifying party may otherwise have to the indemnified party
referred to above.
Section 8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the aggregate amount of Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do
not purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter, the Trust or the Seller. In
the event of a default by any Underwriter as set forth in this Section 8,
the Closing Date shall be postponed for such period, not exceeding seven
days, as the Underwriters shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Seller and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
Section 9. Termination. You may terminate this Agreement
immediately upon notice to the Seller, at any time prior to the Closing
Date relating thereto (i) if any change in or affecting particularly the
business or properties of any Participating Entity which, in your
reasonable judgment materially impairs the investment quality of the
Securities; (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
judgment, impracticable to market the Securities or enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of
Norwest has been suspended by the Commission or a national securities
exchange, or if trading generally on the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by
Federal, Minnesota or New York State authorities.
Section 10. Representations and Indemnities To Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Trust, Norwest, the Seller or the officers of each of
them and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of you or the Trust, Norwest, the Seller
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Section 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
Section 11. Representations of Underwriters. The Representative
will act for the several Underwriters in connection with the transactions
described in this Agreement, and any action taken by the Representative
under this Agreement will be binding upon all of the Underwriters.
Section 12. Notices. All communications hereunder shall be in
writing and effective only on receipt, and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to them c/o the
Representative at 3 World Financial Center, New York, New York 10285-1200,
Attention: Asset-Backed Securities Department; if sent to Norwest or the
Seller, will be mailed, delivered or telegraphed and confirmed to them at
Norwest Center, Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
attention of General Counsel.
Section 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This
Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers, directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
Section 15. Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
If you are in agreement with the foregoing, please sign three
counterparts hereof and return one to the Seller and one to Norwest
whereupon this letter and your acceptance shall become a binding agreement
among the Seller, Norwest and the several Underwriters.
Very truly yours,
NORWEST AUTO RECEIVABLES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
XXXXXX BROTHERS INC., as
Representative of the Underwriters
By: /s/ Xxxxxxx Lighten
Name: Xxxxxxx Lighten
Title: Managing Director
The undersigned agrees to, and has become
a party to this Agreement solely with
respect to, the provisions of Sections
1(d), 1(g), 1(h), 1(j), 7 and
10 hereunder.
NORWEST CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Schedule I
Initial Initial Initial Initial Initial
Principal Amount Principal Amount Principal Amount Principal Amount Certificate
of Class A-1 of Class A-2 of Class A-3 of Class A-4 Balance
Asset-Backed Asset-Backed Asset-Backed Asset-Backed of Asset-Backed
Notes Notes Notes Notes Certificates
--------------- ---------------- --------------- ---------------- ----------------
Xxxxxx Brothers. . . . $ 87,500,000 $ 85,000,000 $ 55,000,000 $ 30,035,000 $ 17,130,000
Norwest Investment
Services . . . . . . 87,500,000 85,000,000 55,000,000 30,035,000 17,129,000
Xxxxxx Xxxxxxx & Co.
Incorporated . . . . 87,500,000 85,000,000 55,000,000 30,035,000 17,129,000
UBS Securities LLC . . 87,500,000 85,000,000 55,000,000 30,035,000
------------ ------------ ------------ ------------ ------------
Total: . . . . . . . . $350,000,000 $340,000,000 $220,000,000 $120,140,000 $ 34,259,000
============ ============ ============ ============ ============
