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EXHIBIT 1.1
XXXXX FARGO AUTO TRUST [___-_]
[$____________] [___%] CLASS A-1 ASSET BACKED NOTES
[$____________] [___%] CLASS A-2 ASSET BACKED NOTES
[$____________] [___%] CLASS A-3 ASSET BACKED NOTES
[$____________] [___%] CLASS A-4 ASSET BACKED NOTES
[$____________] [___%] CLASS B ASSET BACKED NOTES
[$____________] [___%] CLASS C ASSET BACKED NOTES
Xxxxx Fargo Auto Receivables Corporation
(SELLER)
FORM OF UNDERWRITING AGREEMENT
[___, ___]
To:
[____________________],
as Representative of the several
Underwriters named in Schedule II hereto
c/o [____________________]
[____________________]
[____________________]
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
[$___________] of asset backed notes and/or asset backed certificates. The
Seller proposes to cause XXXXX FARGO AUTO TRUST [___-_] (the "Trust") to issue
and sell to the underwriters listed on Schedule I hereto (the "Underwriters")
[$___________] principal amount of its [___%] Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), [$_________] principal amount of its [____%] Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), [$__________] principal amount of its
[_____%] Class A-3 Asset Backed Notes (the "Class A-3 Notes"), [$____________]
principal amount of its [_____%] Class A-4 Asset Backed Notes (the "Class A-4
Notes"), [$__________] principal amount of its [____%]
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Class B Asset Backed Notes (the "Class B Notes") and [$__________] principal
amount of its [___%] 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 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 after
[_____] (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 [____] (as amended and supplemented from time to time, the "Sale and
Servicing Agreement") among Xxxxx Fargo Auto TRUST [___-_] (the "Trust"), the
Seller and Xxxxx Fargo Bank, N.A. ("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 [_______] (as amended and supplemented from time to time, the
"Administration Agreement") among the Trust, Xxxxx Fargo and the 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 [_____] (as amended and supplemented
from time to time, the "Indenture"), between the Trust and
[_______________________] (the "Indenture Trustee"). The Seller will form the
Trust pursuant to an Amended and Restated Trust Agreement (as amended and
supplemented from time to time, the "Trust Agreement") to be dated as of [____]
between the Seller and [_______________], 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.
The Receivables were originated or acquired by Xxxxx Fargo. Xxxxx
Fargo will sell the Receivables to the Seller pursuant to the terms of the
Purchase Agreement (as amended and supplemented from time to time, the "Loan
Purchase Agreement") dated as of [______] 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 Purchase Agreement, the letter agreement in the
form of Exhibit A hereto (as amended and supplemented from time to time, the
"Letter Agreement") and Note Depository Agreement. [Anything Else?]
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-________),
including a form of prospectus and such amendments thereto as may have been
required to the date hereof, 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 prospectus
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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 [_______, ____] 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 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, and 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 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 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 or [formation],
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.
(f) This Agreement and the Letter Agreement has been duly authorized,
executed and delivered by 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 and Xxxxx
Fargo, will constitute a valid and binding
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agreement of each of the Seller and Xxxxx Fargo, enforceable against the Seller
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 and (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).
(g) Neither the Seller nor 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 and Xxxxx Fargo, in each of its capacities under
each of the Basic Documents, to which it 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.
(n) The Trust's assignment of the Collateral to the Trustee pursuant
to the Indenture will vest in the 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 Trustee,
authenticated
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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, 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
By-laws of the Seller, or Xxxxx Fargo, any material indenture or other material
agreement or instrument to which the Seller, 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, or Xxxxx Fargo of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Seller, or Xxxxx
Fargo, or will result in the creation of any lien upon any material property or
assets of the Seller, or Xxxxx Fargo (other than pursuant to the Basic
Documents).
(q) There are no legal or governmental proceedings pending to which
the Seller or Xxxxx Fargo is a party or of which any of its properties is the
subject, which if determined adversely to the Seller 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 either of them; and
to the best of the Seller'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 duly made or obtained.
(s) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, 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 or Xxxxx Fargo, or
the Seller'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, 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 to the Seller are
chattel paper as defined in the Uniform Commercial Code as in effect in the
State of [California]. The
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Receivables transferred by the Seller to the Trust are chattel paper as defined
in the Uniform Commercial Code as in effect in the [State of California].
(v) Under generally accepted accounting principles, (i) Xxxxx Fargo
will report its transfer of the Receivables transferred by it to the Seller
pursuant to the Loan Purchase Agreement as a sale of the Receivables for
financial accounting purposes and (ii) the Seller will report its transfer of
the Receivables to the Trustee pursuant to the Sale and Servicing Agreement as a
sale of the Receivables for financial accounting purposes.
(w) Immediately prior to the transfer thereof to the Seller pursuant
to the Loan 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
Loan Purchase Agreement, is transferring 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, and, 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 Loan Purchase Agreement
and 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 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 (the "Financing
Statements") in the offices specified in Schedule I and there shall be no
unreleased statements affecting the Receivables filed in such offices other than
the 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 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 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
Financing Statements in the office of the Secretary of State of the [State of
California] referred to above, 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.
(y) Immediately prior to the transfer of the Receivables to the
Trust, the Trust's interest in the Receivables and the proceeds thereof shall be
perfected upon the filing of the Financing Statements and there shall be no
unreleased statements affecting the Receivables filed in such offices other than
the 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 Financing Statements in the office of the Secretary of State of the [State
of California]. If a court concludes that such transfer
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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 the Receivables and the proceeds thereof, which security
interest will be perfected upon the filing of the 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 Financing Statements in the office of
the Secretary of State of the [State of California] 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.
(z) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended.
(aa) 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 sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Seller, 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
"Price %" as specified on Schedule III hereto, plus accrued interest from
[________, ___].
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 or
check in Federal (same day) Funds, at the office of Sidley & Austin,
[____________________], at 10:00 a.m., New York time on [ __, ___], 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.
4. Offering by Underwriter. It is understood that, after the
Registration Statement becomes effective, 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, properly completed, 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
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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 their 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 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.
(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
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both, prior to acceptance of its subscription, the opportunity to ask questions
of, and receive answers from, the Seller and Xxxxx Fargo with respect to such
matters.
(g) The Seller will cause the Trust to make generally available to
Noteholders, as soon as practicable, but no later than sixteen months after the
date hereof, an earnings statement of the Trust covering a period of at least
twelve consecutive months beginning after the later of (i) the effective date of
the registration statement relating to the Notes and (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and, in each case, satisfying the
provisions of Section 11(a) of the Act (including Rule 158 promulgated
thereunder).
(h) 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 Trustee pursuant to the
Basic Documents, as soon as such statements and reports are furnished to the
Trustee.
(i) 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 Trust 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.
(j) On or before the Closing Date, the Seller shall cause the
computer records of the Seller 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 neither the Seller nor 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.
(k) 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 conditional 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, one
of the Seller or Xxxxx Fargo shall furnish such documents and take any such
other actions. A copy of any such document shall be provided to the
Representative at the time it is delivered to the rating agencies.
(l) 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 and Xxxxx Fargo's counsel (including
without limitation, local counsel in the [State of California]) 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
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in connection with the preparation of any blue sky or legal investment survey,
if 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 fees and reasonable expenses of the Underwriters (other than its
counsel), (vii) the fees and reasonable expenses of counsel to the Underwriters
in an amount not to exceed $100,000, (viii) any fees charged by rating agencies
for the rating of the Notes, (ix) the fees and expenses of the 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 on the part 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 [________], 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 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,
NASDAQ National Market or American Stock Exchanges, 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 or materially adverse change in general economic,
political or financial conditions
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having an effect on the U.S. financial markets 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 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, special counsel to the Seller and Xxxxx Fargo, dated the Closing Date,
satisfactory in form and substance to the Representative, to the effect that:
(i) The Trust has been duly formed and is validly existing in good
standing under the laws of the state of New York, with full corporate
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) This Basic Documents (other than the Letter Agreement) to
which each of the Seller, the Trust and Xxxxx Fargo is a party are the
legal, valid and binding obligation of the Seller, Xxxxx Fargo and the
Trust, enforceable against the Seller, Xxxxx Fargo 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 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 as of
[________] 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 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.
(xi) The Registration Statement relating to the Notes 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. Such counsel need express no
opinion 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.
(xii) The security interest granted by the Trust to the Trustee in
connection with the pledge of the Receivables from Trust to the
Trustee will create a first priority perfected interest upon the
filing of financing statements with the Secretary of State of the
State of New York. Except as evidenced by Financing Statements filed
in connection with this transaction, there are no security interests
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in the Receivables properly perfected by the filing of any financing
statement naming the Trust as debtor in the Office of the Secretary of
State of New York. Trustee's security interest in the Receivables
described in the financing statement granted to Trustee by the Trust
will have priority over all other security interests in the Trust's
right, title and interest in the Receivables not arising in connection
with this transaction that are perfected by the filing of financing
statements in New York subsequent to the filing of the financing
statement referenced in this clause.
(xiii) Such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, and that
no facts have come to their attention which cause them to believe that
the Registration Statement relating to the Notes 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 relating to the Notes, 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 State of New York and Delaware.
(f) The Representative shall have received the opinion of Xxxxxx &
Austin dated the Closing Date, satisfactory in form and substance to the
Representative and counsel for the Underwriters, regarding (1) the creation and
attachment of a security interest in the Receivables (and the other Trust
property, including amounts on deposit in a reserve account) with respect to the
transfer of the Receivables from Xxxxx Fargo to the Seller and the Seller to the
Trust and the pledge of the Receivables (and the other Trust property, including
amounts on deposit in a reserve account) from the Trust to the Trustee and (2)
the perfection in the pledge of the Receivables (and the other Trust property,
including amounts on deposit in a reserve account) from the Trust to the
Trustee. 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.
(g) The Representative shall have received the opinion of in-house
counsel to
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Wells Fargo and the Seller 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 the
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 Trustee.
(v) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the
Certificates.
(vi) Neither the transfer of certain of the Receivables by the
Seller to the Trustee on behalf of the Trust, nor the assignment by
the Seller of the Trust Estate to the Trust, nor the grant by the
Trust of the security interest in the Collateral to the Owner Trustee
pursuant to the Indenture, nor 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.
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(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) Immediately prior to the transfer of certain of the Receivables
by Xxxxx Fargo pursuant to the Loan Purchase Agreement, Xxxxx Fargo
was the sole owner of all right, title and interest in the Receivables
and the other property transferred by it to the Seller. Immediately
prior to the transfer of certain of the Receivables by the Seller
pursuant to the Sale and Servicing Agreement, the Seller was the sole
owner of all right, title and interest in the Receivables and the
other property transferred by it to the Trust.
(x) To such counsel's knowledge, after due inquiry, there are no
material legal or governmental proceedings pending or threatened
against the Seller other than those disclosed in the Registration
Statement and the Prospectus.
(xi) Xxxxx Fargo has been duly organized and is validly existing as
a state bank in good standing under the laws of the [State of
California], 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.
(xii) This Agreement has been duly authorized, executed and
delivered by Wells Fargo. The Basic Documents to which it is a party
have been duly authorized, executed and delivered by Wells Fargo.
(xiii) Xxxxx Fargo has full 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.
(xiv) Neither the execution, delivery and performance by Xxxxx Fargo
of the Basic Documents to which it is a party, nor the consummation by
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
Xxxxx Fargo, pursuant to the terms of the certificate of incorporation
or the by-laws of Xxxxx Fargo or any statute, rule, regulation or
order of any governmental agency or body, or any court having
jurisdiction over
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Xxxxx Fargo or its properties, or any agreement or instrument known to
me after due investigation to which Xxxxx Fargo is a party or by which
Xxxxx Fargo or any of its properties is bound.
(xv) To the best of the knowledge of such counsel, there are no
legal or governmental proceedings pending to which Xxxxx Fargo is a
party or of which any property of 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 to perform its obligations under any of the
Basic Documents to which either is a party.
(xvi) Such counsel is familiar with Xxxxx Fargo's standard operating
procedures relating to the acquisition of a perfected first priority
security interest in the vehicles financed by Xxxxx Fargo pursuant to
retail installment sale contracts in the ordinary course of their
business. Assuming that these standard procedures are followed with
respect to the perfection of security interests in the Financed
Vehicles, Xxxxx Fargo has acquired or will acquire a perfected first
priority security interests in the Financed Vehicles with respect to
which it has originated Receivables sold by it to the Seller.
(xvii) Xxxxx Fargo has all necessary licenses required by law in
connection with its performance as Servicer pursuant to the Sale and
Servicing Agreement.
(xviii) To such counsel's knowledge, there are no material legal or
governmental proceedings pending or threatened against Xxxxx Fargo
other than those disclosed in the Registration Statement and the
Prospectus.
(xix) 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 or Xxxxx Fargo, is
necessary to be obtained or accomplished by Seller 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 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 any
jurisdiction other than the federal law of the United States of America and the
laws of the State of Delaware and [California].
(h) The Representative shall have received the opinion of Xxxxxx &
Xxxxxx, counsel to Xxxxx Fargo 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:
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(i) Such counsel shall deliver an opinion regarding [California]
state tax consequences in form and substance reasonably acceptable to
the Representative and counsel to the Underwriters.
(ii) The Receivables conveyed by Xxxxx Fargo to the Seller and by
the Seller to the Trust are chattel paper as defined in the Uniform
Commercial Code as in effect in the [State of California].
(iii) 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 described in the Financing Statements will be perfected
upon the filing of the 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 but instead a grant from Xxxxx Fargo
to Seller of a security interest in the Receivables, such security
interest will be perfected upon the filing of the Financing Statements
in the office of the Secretary of State of the [State of California].
Except as evidenced by Financing Statements filed in connection with
this transaction, there are no security interests in the Receivables
properly perfected by the filing of any financing statement naming
Xxxxx Fargo as debtor in the Office of the Secretary of [State of
California]. Seller's security interest in the Receivables described
in the Xxxxx Fargo financing statement granted to Seller by Xxxxx
Fargo will have priority over all other security interests in Xxxxx
Fargo's right, title and interest in the Receivables not arising in
connection with this transaction that are perfected by the filing of
financing statements in [California] subsequent to the filing of the
Xxxxx Fargo financing statement.
(iv) 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 described in the Financing Statements will be perfected
upon the filing of the 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, but instead a grant from the Seller
to the Trust of a security interest in the Receivables, such security
interest will be perfected upon the filing of the Financing Statements
in the office of the Secretary of State of the [State of California].
Except as evidenced by Financing Statements filed in connection with
this transaction, there are no security interests in the Receivables
properly perfected by the filing of any financing statement naming
Seller as debtor in the Office of the Secretary of [State of
California]. The Trust's security interest in the Receivables
described in the financing statement granted to the Trust by the
Seller will have priority over all other security interests in
Seller's right, title and interest in the Receivables not arising in
connection with this transaction that are perfected by the filing of
financing statements in [California] subsequent to the filing of the
Seller financing statement.
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(v) The security interest in the Receivables granted by the Trust to
the Trustee will be a perfected interest upon the filing of financing
statements with the Secretary of State of the [State of California].
Except as evidenced by Financing Statements filed in connection with
this transaction, there are no security interests in the Receivables
properly perfected by the filing of any financing statement naming the
Trust as debtor in the Office of the Secretary of [State of
California]. Trustee's security interest in the Receivables described
in the financing statement granted to Trustee by the Trust will have
priority over all other security interests in the Trust's right, title
and interest in the Receivables not arising in connection with this
transaction that are perfected by the filing of financing statements
in [California] subsequent to the filing of the financing statement
referenced in this clause.
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 [State of California].
(i) The Representative shall have received an opinion addressed to it
of Sidley & Austin, in its capacity as counsel to the Seller, dated the Closing
Date, with respect to the creation of (x) 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 (y) with respect to the transfer of the Receivables to
the Trust, a "true sale" or a valid and binding security interest in the
Receivables and the Seller shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. Such opinions shall be limited to the
laws of the State of New York and United States federal law.
(j) The Representative shall have received an opinion of [_________],
counsel to the 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 Trustee has been duly organized as a national banking
association and is validly existing and in good standing under the
laws of the United States of America.
(ii) The 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
Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the 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 (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
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(iv) The Notes have been duly authenticated by the 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.
(k) The Representative shall have received an opinion of
[___________], 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 corporation duly incorporated and
organized and validly existing under the laws of the State of New
York.
(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 Trust Agreement, the
Indenture and the Sale and Servicing Agreement.
(iii) The execution and delivery of the Trust Agreement, the
Indenture and the Sale and Servicing Agreement, and the performance by
the Owner Trustee of its obligations under the Trust Agreement, the
Sale and Servicing Agreement and the Indenture 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 Trust Agreement 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 Trust
Agreement, the Indenture and the Sale and Servicing Agreement 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
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law of the United States of America or the State of New York governing
its banking or trust powers or the charter, by-laws or other
organizational documents of the Owner Trustee.
(viii) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York 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 Trust Agreement,
the Indenture or the Sale and Servicing Agreement.
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.
(l) The Representative shall have received an opinion of [Xxxxxxxx'
Xxxxxx & Finger], special Delaware counsel for the Seller, dated the Closing
Date, satisfactory in form and substance to the Representative and counsel for
the Underwriters with respect to certain bankruptcy matters relating to the
Seller.
(m) The Representative shall have received copies of each opinion of
counsel delivered to either rating agency, 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.
(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 the date
of its incorporation, 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 Trust, Xxxxx Fargo or 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, 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 this Agreement, the Loan Purchase Agreement and the Sale and
Servicing Agreement are true
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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 [_____________],
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 Trust,
Xxxxx Fargo or the Seller, has occurred.
(p) The Representative shall have received evidence satisfactory to
it and counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been submitted to the Owner Trustee or Trustee,
as the case may be, for filing in the appropriate filing offices reflecting (1)
the transfer of the interest in the Receivables, certain other property and the
proceeds thereof (A) from Xxxxx Fargo to the Seller and (B) from the Seller to
the Trust, and (2) the grant of the security interest by the Trust in the
Receivables, certain other property and the proceeds thereof to the Trustee.
(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 made by the
Seller in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any
amendment thereto, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto, or
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, the Basic Prospectus, any
Preliminary Prospectus
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or the Prospectus or any amendment or supplement thereto a
material fact required to be stated therein or necessary to
make the statements therein not misleading,
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 any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, the Basic Prospectus, any
Preliminary Prospectus, the Prospectus 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. The
written information furnished by the Representative to the Seller consists
solely of the information set forth in the [__] and [__] paragraphs under the
heading "Underwriting" in the Prospectus Supplement. The indemnity provided for
in this Section 6 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 Basic Prospectus, any
Preliminary Prospectus or the Prospectus 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
Basic Prospectus any Preliminary Prospectus or the Prospectus 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 written information furnished to the Seller by such
Underwriter through the Representative specifically for use
therein, and, subject to the limitation set forth immediately
preceding this clause, will reimburse, as
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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 6 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 6, 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 6. 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 6 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 6, 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
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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 6 is unavailable or
insufficient, for any reason, to hold 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 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 the 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 intents, 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
[____________________] 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
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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 any of the Underwriters default in
their obligations to purchase Notes hereunder, and the aggregate principal
amount of Notes that the defaulting Underwriter agreed but failed to purchase
does not exceed 10% of the total principal amount of the Notes, the Underwriters
may make arrangements for the purchase of such Notes by other persons including
the non-defaulting Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated, in proportion
to its commitment hereunder, to purchase the Notes that such defaulting
Underwriter agreed but failed to purchase. If any of the Underwriters so default
and the aggregate principal amount of Notes with respect to which such default
or defaults occur exceeds 10% of the total principal amount of Notes and
arrangements satisfactory to the Underwriters and the Seller for the purchase of
such Notes by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of the Seller,
except as provided in Section 9 hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve the Underwriter from liability for its
default.
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(l) 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:
[_____________] (fax # [___________]) and if sent to the Seller when delivered
to [________________________], [Attention: ___________ (Fax # ______________).]
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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 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:_____________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first written above.
[____________________]
By:__________________________________
Acting on behalf of itself and as the
Representative of the Several
Underwriters
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SCHEDULE I
OFFICES
[California] Secretary of State
29
SCHEDULE II
Initial Initial Initial Initial Initial Initial
Principal Principal Principal Principal 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
----------- --------------- --------------- --------------- --------------- ------------- -------------
[_____________] $ $ $ $ $ $
Total $ $ $ $ $ $
30
SCHEDULE III
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
-------- --------- -------- -------- ------- ------- ------
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
Class C Notes
Total Price to Public: $
Total Price to Seller: $
Underwriting Discounts
and Commissions: $
31
EXHIBIT A
32
[______]
[____________________]
as Representative of the several Underwriters
named in Schedule II hereto
c/o [____________________]
[____________________]
[____________________]
Re: Underwriting Agreement for Xxxxx Fargo Auto TRUST [___-_], dated [____] the
"Underwriting Agreement") between Xxxxx Fargo Auto Receivables Corporation
(the "Seller"), and [____________________], as representative (the
"Representative") of the several underwriters (the "Underwriters").
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 & Company, the parent
corporation 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 & Company do hereby agree
that:
1. Xxxxx Fargo & Company 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.
33
2. Xxxxx Fargo & Company 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 & Company.
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 & COMPANY,
By:_____________________
Name:
Title:
[____________________]
By:______________________
