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EXHIBIT 1.1
WFS FINANCIAL 1999-C OWNER TRUST
$224,100,000
______ % AUTO RECEIVABLE BACKED NOTES, CLASS A-1
$149,425,000
______ % AUTO RECEIVABLE BACKED NOTES, CLASS A-2
$73,975,000
______ % AUTO RECEIVABLE BACKED NOTES, CLASS A-3
$52,500,000
______ % AUTO RECEIVABLE BACKED CERTIFICATES
WFS FINANCIAL AUTO LOANS, INC., SELLER
WFS FINANCIAL INC, MASTER SERVICER
UNDERWRITING AGREEMENT
October __, 1999
Banc of America Securities LLC
as Representative of the several Underwriters
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
WFS Financial Auto Loans, Inc., a California corporation (the
"Company"), proposes to sell to the several underwriters listed on Schedule I
hereto (the "Underwriters") for whom Banc of America Securities LLC will be
acting as representative (the "Representative"), as provided in Section 2 hereof
$224,100,000 aggregate principal amount of ______% Auto Receivable Backed Notes,
Class A-1 (the "Class A-1 Notes"), $149,425,000 aggregate principal amount of
______% Auto Receivable Backed Notes, Class A-2 (the "Class A-2 Notes"),
$73,975,000 aggregate principal amount of ______% Auto Receivable Backed Notes,
Class A-3 (the "Class A-3 Notes" and, together with the Class A-1 Notes and the
Class A-2 Notes, the "Notes") and $52,500,000 aggregate principal amount of
______% Auto Receivable Backed Certificates (the "Certificates" and, together
with the Notes, the "Securities"). The Notes will be issued pursuant to an
indenture dated as of October 1, 1999 (the "Indenture"), between the WFS
Financial 1999-C Owner Trust (the "Trust") and Bankers Trust Company, as trustee
(the "Indenture Trustee"). Each Note will represent an obligation of the Trust.
The Trust will be created and the Certificates will be issued
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pursuant to a trust agreement, dated as of October __, 1999, as amended and
restated as of November 3, 1999 (the "Trust Agreement"), among the Company, WFS
Investments, Inc. ("WII"), Financial Security Assurance Inc. ("Financial
Security") and Chase Manhattan Bank Delaware, as Owner Trustee. Each Certificate
will evidence a fractional undivided interest in the Trust. Financial Security
will issue a financial guaranty insurance policy for the exclusive benefit of
the Notes (the "Note Policy") and a financial guaranty insurance policy for the
exclusive benefit of the Certificates (the "Certificate Policy" and, together
with the Note Policy, the "Policies").
The assets of the Trust will include, among other things, (i) a pool of
retail installment sales contracts and installment loans (the "Contracts")
secured by new and used automobiles and light-duty trucks financed thereby (the
"Financed Vehicles"), (ii) certain monies due under the Contracts on and after
November 1, 1999, (iii) security interests in the Financed Vehicles, (iv) the
Policies, (v) amounts on deposit in certain accounts and (vi) certain rights
under the sale and servicing agreement dated as of October 1, 1999 (the "Sale
and Servicing Agreement"), among the Trust, the Company and WFS Financial Inc
("WFS"), as Master Servicer. Pursuant to the Indenture, the Trust property will
be held by the Indenture Trustee on behalf of the holders of the Notes. Pursuant
to the administration agreement dated as of October 1, 1999 (the "Administration
Agreement"), among the Company, WII, WFS, as administrator (in such capacity,
the "Administrator"), the Trust and the Indenture Trustee, the Administrator
will perform certain administrative obligations under the Indenture. Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Indenture or the Sale and Servicing Agreement, as the
case may be. The Securities are more fully described in a Registration Statement
(as such term is defined in Section 1 hereof) which the Company has furnished to
the Underwriters.
1. Registration Statement and Prospectuses. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement on Form S-3 (File No. _________), including a
form of prospectus, relating to the Securities. Such registration statement has
been declared effective by the Commission. If any post-effective amendment has
been filed with respect thereto, prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective by the
Commission. Such registration statement, as amended and the prospectus
constituting a part thereof (including in each case the information deemed to be
a part thereof pursuant to Rule 430A under the Act and all documents, if any,
incorporated or deemed to be incorporated by reference therein pursuant to the
Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act")), as
from time to time amended or supplemented pursuant to the Act or otherwise, are
hereinafter referred to as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) under
the Act ("Rule 424(b)") of the rules and regulations of the Commission
promulgated under the Act (the "Rules and Regulations"), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in
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the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any documents under the Exchange Act after the date of this Agreement
which are or are deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
2. Agreements to Sell and Purchase. The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company and WFS herein contained and subject to all the terms
and conditions of this Agreement, the Underwriters agree to purchase from the
Company, severally and not jointly, on the Closing Date referred to in Section 4
hereof, the Securities at a purchase price of, in the case of (i) the Class A-1
Notes, ______% of the principal amount thereof; (ii) the Class A-2 Notes,
______% of the principal amount thereof; (iii) the Class A-3 Notes, ______% of
the principal amount thereof and (v) the Certificates, ______% of the principal
amount thereof, in each case plus accrued interest at the related Interest Rate
or the Pass-Through Rate, as the case may be, from November 1, 1999, to but not
including the Closing Date.
3. Terms of Public Offering. The Company is advised by the
Representative that the Underwriters propose (i) to make a public offering of
the Securities as soon after the execution of this Agreement as in the judgment
of the Representative is advisable and (ii) initially to offer each Class of
Notes and the Certificates upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery of the Securities shall be made at
the office of the Representative at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 on or about 10:00 A.M., Charlotte, North Carolina time, on
November __, 1999 (such time and date are referred to herein as the "Closing
Date"). Payment for the Securities shall be made at the offices of WFS Financial
Inc, 00 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000. The Closing Date and the
location of the delivery of and payment for the Securities may be varied by
agreement between the Representative and the Company.
Each Class of Notes and the Certificates will be initially represented
by one or more certificates in definitive form registered in the name of Cede &
Co., the nominee of The Depository Trust Company ("DTC") (the "DTC
Certificates"). The certificates evidencing the DTC Certificates shall be made
available to the Representative for inspection not later than 10:00 A.M.,
Charlotte, North Carolina time, on the business day immediately preceding the
Closing Date. The Securities shall be delivered to the Underwriters on the
Closing Date for their respective accounts against payment of the purchase price
therefor by either (i) certified or official bank check or checks payable in New
York Clearing House (next day) funds to the order of the Company or (ii) wire
transfer (same day funds), as the Representative and the Company shall agree.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than November __, 1999.
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5. Agreements of the Company. The Company agrees with the Underwriters:
(a) To transmit the Prospectus to the Commission pursuant to
Rule 424(b) by a means reasonably calculated to result in the timely
filing of such Prospectus with the Commission pursuant to Rule 424(b).
(b) To advise the Representative promptly and, if requested by
the Representative, to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of any of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for either such
purpose, and (iv) of the happening of any event during the period
referred to in paragraph (e) below which, in the judgment of the
Company, makes the Registration Statement or the Prospectus contain an
untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the withdrawal
or lifting of such order at the earliest possible time.
(c) To furnish to the Representative two signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to the
Underwriters such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits, as
the Underwriters may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which the Representative shall not previously have been
advised or to which the Representative shall reasonably object and to
prepare and file with the Commission promptly upon the request of the
Representative, any amendment to the Registration Statement or
supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of any of the Securities by the
Underwriters, and to use its best efforts to cause the same to become
promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel to the Underwriters a prospectus is required by law
to be delivered in connection with sales by the Underwriters or such
dealers as the Representative shall specify, to furnish to the
Underwriters and each such dealer as many copies of the Prospectus (and
of each amendment or supplement to the Prospectus) as the Underwriters
or such dealer may reasonably request.
(f) If during the period specified in Section 5(e) hereof any
event shall occur as a result of which, in the opinion of the Company
or counsel to the Underwriters it
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becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not, in the light of
the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with law, and to furnish to the Underwriters
and to such dealers as the Representative shall specify, such number of
copies thereof as the Underwriters or such dealers may reasonably
request.
(g) Prior to any public offering of the Securities, to
cooperate with the Underwriters and counsel to the Underwriters in
connection with the registration or qualification of the Securities for
offer and sale by the Underwriters and by dealers under the securities
or Blue Sky laws of such jurisdictions as the Underwriters may
reasonably request, to continue such qualification in effect so long as
reasonably required for distribution of the Securities and to file such
consents to service of process or other documents as may be necessary
in order to effect such registration or qualification; provided that
the Company shall not be required to register or qualify as a foreign
corporation or to take any action which would subject it to service of
process in suits, other than as to matters and transactions relating to
the offer and sale of the Securities, in any jurisdiction where it is
not now so subject.
(h) As soon as practicable, but not later than 16 months after
the "effective date" of the Registration Statement, to cause the Trust
to make generally available to holders of the Securities an earnings
statement of the Trust covering a 12 month period beginning not later
than the first day of the Trust's fiscal quarter next following the
"effective date" of the Registration Statement. Such statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) So long as any of the Securities remain outstanding,
promptly to furnish to the Underwriters (i) the annual statements of
compliance, annual independent certified public accountants' reports
and annual opinions of counsel furnished to the Indenture Trustee or
the Owner Trustee pursuant to the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as soon as such statements, reports
and opinions are furnished to the Indenture Trustee or the Owner
Trustee, (ii) all documents of the Company or the Trust required to be
distributed to Securityholders or filed with the Commission pursuant to
the Exchange Act or any order of the Commission thereunder and (iii)
such other information concerning the Company, the Trust or WFS as the
Underwriters may reasonably request.
(j) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities. To the extent, if any,
that the ratings provided with respect to the Securities by any Rating
Agency (as such term is defined in Section 8(m) hereof) that initially
rates the Securities is conditional upon the furnishing of documents or
the taking of any other actions by the Company, the Company shall
furnish such documents and take such other actions.
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(k) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than by notice given by the
Representative pursuant to Section 10 hereof) or if for any reason the
Company shall be unable to perform its obligations hereunder, to
reimburse the Underwriters for all of their out-of-pocket expenses
(including the fees and expenses of counsel to the Underwriters)
reasonably incurred by the Underwriters in connection herewith.
(l) To apply the net proceeds from the offering in the manner
set forth under the caption "Use of Proceeds" in the Prospectus.
(m) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act (including
the Rules and Regulations and the rules and regulations of the
Commission under the Exchange Act (the "Exchange Act Regulations")),
will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act and the Exchange Act Regulations.
6. Representations and Warranties of the Company and WFS.
(a) The Company represents and warrants to the Underwriters that:
(i) The conditions to the use of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Company and the
Registration Statement and the Prospectus fully comply, and any
supplements or amendments thereto will fully comply, in all material
respects with the provisions of the Act.
(ii) 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 the Company,
threatened by the Commission. At the effective date, respectively, of
the Registration Statement and any post-effective amendments thereto,
at the date of this Agreement and the Closing Date, the Registration
Statement and any post-effective amendments or supplements thereto
complied or will comply in all respects with the requirements of the
Act and the Rules and Regulations, and did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and on the date of filing the Prospectus
pursuant to Rule 424(b), the date of this Agreement and the Closing
Date, neither the Prospectus nor any amendments or supplements thereto
contained or will contain 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, except that
the representations and warranties in this subparagraph shall not apply
to statements or omissions in the Registration Statement or the
Prospectus or any preliminary prospectus made in reliance upon
information furnished to the Company in writing by the Underwriters
through the Representative expressly for use therein or to that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Indenture Trustee on
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Form T-1 (the "Form T-1") under the Trust Indenture Act of 1939, as
amended (the "1939 Act").
(iii) Each preliminary prospectus, the Prospectus and any
amendment or supplement thereto, complied or will comply when so filed
with the requirements of the Act and the Rules and Regulations, and the
Prospectus delivered to the Underwriters for use in connection with the
offering of the Securities was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system, except to the
extent permitted by Regulation S-T.
(iv) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the 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
Exchange Act and Exchange Act Regulations, and, when read together with
the other information in the Prospectus, at the date of this Agreement
and at the Closing Date, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(v) The Securities conform to the description thereof
contained in the Prospectus and are duly and validly authorized and (i)
when the Certificates have been executed, authenticated and delivered
in accordance with the Trust Agreement and delivered to and paid for by
the Underwriters as provided herein, will be entitled to the benefits
and security afforded by the Trust Agreement and will constitute legal,
valid and binding obligations of the Trust enforceable in accordance
with their terms and the terms of the Trust Agreement, and (ii) when
the Notes have been executed, authenticated and delivered in accordance
with the Indenture and delivered to and paid for by the Underwriters as
provided herein, will be entitled to the benefits and security afforded
by the Indenture and will constitute legal, valid and binding
obligations of the Trust enforceable in accordance with their terms and
the terms of the Indenture, in each case subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(vi) The execution and delivery by the Company of the
Administration Agreement, the Indenture, the Sale and Servicing
Agreement, the Trust Agreement, the indemnification agreement dated as
of November 1, 1999 (the "Indemnification Agreement"), among the
Company, WFS, Financial Security and the Representative, the insurance,
indemnity and pledge agreement dated as of November 1, 1999 (the
"Insurance Agreement" and, together with the Administration Agreement,
the Indemnification Agreement, the Indenture, the Sale and Servicing
Agreement and the Trust Agreement, the "Basic Documents"), among the
Trust, the Company, WFS, WII, Financial Security and the Indenture
Trustee, and this Agreement are within the corporate power of the
Company and have been duly authorized by all necessary corporate action
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on the part of the Company; and neither the issuance and sale of the
Securities to the Underwriters, nor the execution and delivery by the
Company of this Agreement and the Basic Documents to which it is a
party, nor the consummation by the Company of the transactions herein
and therein contemplated, nor compliance by the Company with the
provisions hereof or thereof, will conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
the articles of incorporation or bylaws of the Company or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party or by which it is bound, or any order
of any court or government agency or authority entered in any
proceeding to which the Company was or is now a party or by which it is
bound.
(vii) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of California and
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction where the character
of its properties or the nature of its activities makes such
qualification necessary, except such jurisdictions, if any, in which
the failure to be so qualified will not have a material adverse effect
on either the business or properties of the Company; the Company holds
all material licenses, certificates and permits from all governmental
authorities necessary for the conduct of its business as described in
the Prospectus; and the Company has the corporate power and authority
to own its properties and conduct its business as described in the
Prospectus.
(viii) Each of this Agreement and the Basic Documents to which
the Company is a party, when executed and delivered as contemplated
thereby, will have been duly authorized, executed and delivered by the
Company and will constitute, when so executed and delivered, a legal,
valid and binding instrument enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and, in the case of this Agreement and the Indemnification
Agreement, except as rights to indemnity and contribution hereunder and
thereunder may be limited by applicable law; each of the Basic
Documents conforms to the description thereof contained in the
Prospectus; and the Indenture has been duly qualified under the 1939
Act.
(ix) At the Closing Date, the Company will have good and
marketable title to the Contracts listed in Schedule A to the Sale and
Servicing Agreement, free and clear of any lien, mortgage, pledge,
charge, security interest or other encumbrance (subject to the security
interest afforded to Financial Security under the Insurance Agreement);
and the Company's assignment and delivery of the Contract Documents to
the Trust will vest in the Trust the good and marketable title
purported to be conveyed thereby (subject to the security interest
afforded to Financial Security under the Insurance Agreement).
(x) The Trust's assignment of the Trust Estate to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, pledge,
charge, security interest or other encumbrance, except that such
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security interest will be subject to the security interest afforded to
Financial Security under the Insurance Agreement.
(xi) The representations and warranties made by the Company in
the Sale and Servicing Agreement and in the Officers' Certificates of
the Company delivered pursuant to the Basic Documents to which the
Company is a party will be true and correct at the Closing Date.
(xii) Since June 30, 1999, there has been no material adverse
change or development involving a prospective material adverse change
in or affecting particularly the condition, financial or otherwise, of
the Company, or the earnings, affairs or business prospects of the
Company, whether or not arising in the ordinary course of business,
except as set forth in or contemplated in the Prospectus.
(b) WFS represents and warrants to the Underwriters that the
representations and warranties of the Company set forth in paragraph (a) above
are true and correct, and to the further effect that:
(i) WFS has been duly incorporated and is validly existing in
good standing under the laws of the State of California and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary, except such jurisdictions, if any, in which the failure to
be so qualified will not have a material adverse effect on either the
business or properties of WFS; WFS holds all material licenses,
certificates and permits from all governmental authorities necessary
for the conduct of its business as described in the Prospectus; and WFS
has the corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
(ii) The execution and delivery by WFS of this Agreement and
the Basic Documents to which it is a party are within the corporate
power of WFS and have been duly authorized by all necessary action on
the part of WFS; and neither the execution and delivery by WFS of this
Agreement and the Basic Documents to which it is a party, nor the
consummation by WFS of the transactions herein and therein
contemplated, nor compliance by WFS with the provisions hereof and
thereof, will conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, the articles of
incorporation or bylaws of WFS or any indenture, mortgage, deed of
trust or other agreement or instrument to which WFS is now a party or
by which it is bound, or any order of any court or government agency or
authority entered in any proceeding to which WFS was or is now a party
or by which it is bound.
(iii) Each of this Agreement and each Basic Document to which
WFS is a party has been duly authorized, executed and delivered by WFS
and constitutes a valid and binding agreement of WFS, enforceable
against WFS in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and, in
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the case of this Agreement and the Indemnification Agreement, except as
rights to indemnity and contribution hereunder and thereunder may be
limited by applicable law.
(iv) The Contracts transferred to the Company from WFS on the
Closing Date were free and clear of all liens (including tax liens),
mortgages, pledges, charges, security interests and other encumbrances
at the time of such transfer (subject to the security interest afforded
to Financial Security under the Insurance Agreement).
(v) WFS has the power and authority to own its properties, to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under each of the Basic Documents to which
it is a party.
(vi) Since June 20, 1999, there has been no material adverse
change or development involving a prospective material adverse change
in or affecting particularly the condition, financial or otherwise, of
WFS, or the earnings, affairs or business prospects of WFS, whether or
not arising in the ordinary course of business, except as set forth in
or contemplated in the Prospectus.
7. Payment of Expenses. The Company will pay all costs, expenses, fees
and taxes incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, filing and distribution under the Act
of the Registration Statement as first filed (including all financial
statements, exhibits and documents incorporated by reference), each preliminary
prospectus and all amendments and supplements to any of them (including the
delivery to the Underwriters of copies thereof), (ii) the preparation of this
Agreement, (iii) the preparation, issuance and delivery of the Securities to the
Underwriters, (iv) the fees and disbursements to the Company's counsel and
accountants, (v) the registration or qualification of the Securities for offer
and sale under the securities or Blue Sky laws of the jurisdictions referenced
in Section 5(g) hereof (including in each case the filing fees and the fees and
disbursements of counsel to the Underwriters relating to such registration or
qualification and in connection with the preparation of any Blue Sky or legal
investment survey relating thereto), (vi) the printing or copying and delivery
to the Underwriters of any dealer agreement, Preliminary and Supplemental Blue
Sky Memoranda, legal investment memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection with the
offering of the Securities (including in each case the disbursements of counsel
to the Underwriters relating to such reproducing and delivery), (vii) any fees
paid to Xxxxx'x Investors Service, Inc. ("Moody's") and Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") in connection
with the rating of the Securities.
8. Indemnification and Contribution.
(a) The Company and WFS jointly and severally agree to indemnify and
hold harmless each Underwriter from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which such Underwriter
may become subject under the Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
preliminary Prospectus, the Preliminary Prospectus Supplement (if any), the
Prospectus or any amendment or supplement
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thereto or (ii) any 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 the Company and WFS will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability,
judgment or action as such expenses are incurred; provided, however, that
neither the Company nor WFS will be liable in any such case to the extent that
any such loss, claim, damage, liability or judgment arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any such document in reliance upon and in conformity with written
information furnished to the Company by the Underwriters through the
Representative specifically for use therein.
(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company and WFS from and against any and all losses,
claims, damages, liabilities and judgments, joint or several, to which the
Company and WFS may become subject under the Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or judgments (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the preliminary prospectus, the Prospectus or any
amendment or supplement thereto or (ii) any omission or alleged omission to
state 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 relating to such Underwriter furnished to the Company or WFS by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company or WFS
in connection with investigating or defending any such loss, claim, damage,
liability, judgment or action as such expenses are incurred, it being understood
that the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each Underwriter:
the concession and reallowance figures appearing in the second and third
paragraphs under the caption "Underwriting" and the information regarding price
stabilization contained in the sixth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
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
Section 8(a) or 8(b), notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve such indemnifying party from any liability that it may have to any
indemnified party otherwise than under Section 8(a) or 8(b). 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 (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof and approval by the indemnified party
of the counsel appointed by the indemnifying party, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. The
indemnifying party shall not be liable for any
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settlement of any such action effected without the written consent of the
indemnifying party but, if settled with the written consent of the indemnifying
party, the indemnifying party agrees that each person so consenting agrees to
indemnify and hold harmless each such indemnified party from and against any
loss or liability by reason of such settlement. 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 party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments referred to in subsection (a) or (b) above: (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and WFS on the one hand and such Underwriter(s) on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and WFS on the one hand and such
Underwriter(s) on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and WFS on the one hand and such Underwriter(s) on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and WFS and the total underwriting discounts and commissions received by such
Underwriter(s), bear to the total price to the public of the Securities, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company, WFS and the relevant Underwriter(s) 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 Company, WFS or the relevant
Underwriter(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, WFS and the Underwriters agree that it would not be just
and equitable if contribution pursuant to Section 8(d) were determined by pro
rata allocation or by any other method of allocation which 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, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, no Underwriter (except as may be
provided in the agreement among underwriters relating to the offering of the
Securities) shall be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder. 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.
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(e) The obligations of the Company and WFS under this Section shall be
in addition to any liability the Company or WFS may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any of the Underwriters within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company or WFS, to each officer of
the Company or WFS who has signed the Registration Statement and to each person,
if any, who controls the Company or WFS within the meaning of the Act.
9. Conditions. The several obligations of the Underwriters to purchase
the Securities under this Agreement are subject to the satisfaction of each of
the following conditions:
(a) All the representations and warranties of the Company and
WFS contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Registration Statement shall have become effective not
later than ___P.M., North Carolina time, on the date of this Agreement
or at such later date and time as the Representative may approve in
writing, and at 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 commenced or shall be
pending before or contemplated by the Commission.
(c) Since June 30, 1999, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, affairs or business prospects, whether or not arising
in the ordinary course of business, of the Company or WFS. On the
Closing Date, the Representative shall have received (i) a certificate
dated the Closing Date, signed by the President or a Vice President of
the Company, confirming the matters set forth in paragraphs (a) (as to
the Company's representations and warranties only), (b) and (c) of this
Section (as to the Company only), and (ii) a certificate dated the
Closing Date, signed by the President or a Vice President of WFS,
confirming the matters set forth in paragraphs (a) and (c) of this
Section. Such officers may in each certificate rely upon the best of
their information and belief as to proceedings contemplated.
(d) The Representative shall have received the opinion of
Xxxxxxxx, Xxxxxxxxxx & Xxxxx LLP, counsel for the Company, dated the
Closing Date and satisfactory to counsel to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of California, with corporate power and authority to own
its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
this Agreement and each of the Basic Documents to which it is
a party, and is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the location
of its properties or the character of its operations makes
such qualification necessary, except such jurisdictions, if
any, in which the failure to be
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so qualified will not have a material adverse effect on either
the business or properties of the Company.
(ii) The statements in the Prospectus set forth under
the captions "Summary of Prospectus", "The Notes", "The
Certificates", "The Contracts Pool" and "Certain Information
Regarding the Securities", insofar as such statements purport
to summarize certain provisions of the Notes, the Certificates
or the Basic Documents, provide a fair summary of such
provisions, and the statements in the Prospectus under the
captions "Summary of Prospectus -- Tax Status", " -- ERISA
Considerations", "Certain Legal Aspects of the Contracts",
"Certain Federal Income Tax Consequences", "Certain California
Income Tax Consequences" and "ERISA Considerations", to the
extent such statements constitute matters of law or legal
conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material
respects.
(iii) For federal income tax purposes, the Notes will
be considered debt, the Trust will not be an association
taxable as a corporation and the Trust will not be a publicly
traded partnership taxable as a corporation. The trust fund
created by the Trust Agreement will not, for California income
tax purposes, be classified as an association taxable as a
corporation, and Certificateholders and Noteholders who are
not residents of or otherwise subject to tax in California
will not, solely by reason of their acquisition of an interest
in any Class of Notes or the Certificates, be subject to
California income, franchise, excise or similar taxes with
respect to interest on any Class of Notes or the Certificates
or with respect to any of the other Trust property.
(iv) Each of this Agreement and the Indemnification
Agreement has been duly authorized, executed and delivered by
the Company.
(v) Each Basic Document (other than the
Indemnification Agreement) to which the Company is a party has
been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery by
the other parties thereto, constitutes the valid, legal and
binding obligation of the Company, enforceable against the
Company, in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other laws now or hereafter in
effect affecting the enforcement of creditors' rights
generally, and except that no opinion is expressed as to the
availability of remedies of specific performance, injunction
or other forms of equitable relief, all of which may be
subject to certain tests of equity jurisdiction, equitable
defenses and the discretion of the court before which any
proceeding therefor may be brought.
(vi) Assuming the due authorization, execution and
delivery of each Basic Document to which the Trust is a party
by the Owner Trustee, on behalf of the Trust, and by each
other party thereto (other than the Company) each such Basic
Document constitutes the valid, legal and binding obligation
of the Trust enforceable against the Trust in accordance with
its terms, except as
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enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other laws now or hereafter in
effect affecting the enforcement of creditors' rights
generally, and except that no opinion is expressed as to the
availability of remedies of specific performance, injunction
or other forms of equitable relief, all of which may be
subject to certain tests of equity jurisdiction, equitable
defenses and the discretion of the court before which any
proceeding therefor may be brought.
(vii) The Certificates, when executed and
authenticated in accordance with the Trust Agreement and
delivered and paid for pursuant to this Agreement, will be
validly issued and outstanding and entitled to the benefits of
the Trust Agreement.
(viii) The Notes, when executed and authenticated in
accordance with the Indenture and delivered and paid for
pursuant to this Agreement, will be entitled to the benefits
of the Indenture and will constitute legal, valid and binding
obligations of the Trust, entitled to the benefits of the
Indenture, and enforceable in accordance with their terms and
the terms of the Indenture (subject to the security interest
afforded to Financial Security under the Insurance Agreement),
subject, with respect to each of the Indenture and the Notes,
to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights
generally, and except that no opinion is expressed as to the
availability of remedies of specific performance, injunction
or other forms of equitable relief, all of which may be
subject to certain tests of equity jurisdiction, equitable
defenses and the discretion of the court before which any
proceeding therefor may be brought.
(ix) As to each security interest in a Financed
Vehicle created by a Contract, no filing or other action is
necessary to perfect or continue the perfected status of such
security interest as against creditors of or transferees from
the obligor under such Contract, so long as such Financed
Vehicle is not removed from the State of California for a
period longer than four months, or before the end of such
four-month period, WFS perfects such security interest under
applicable law; provided that (A) no opinion is rendered as to
a security interest in a Financed Vehicle as to which neither
a properly endorsed certificate of title naming WFS or an
affiliate or predecessor of WFS as legal owner nor an
application for an original registration together with an
application for registration of WFS or an affiliate or
predecessor of WFS as legal owner, has been deposited with the
California Department of Motor Vehicles, and (B) no opinion is
given as to the enforceability of the security interest in a
Financed Vehicle as against a subsequent owner of a Financed
Vehicle or a holder or assignee of a certificate of title
relating to such Financed Vehicle through fraudulent or
negligent transfer of such certificate of title.
(x) The Sale and Servicing Agreement, together with
the filing referred to in this subsection, creates and
perfects the ownership interest of the Trust in the Contracts
which is a valid first priority ownership interest (subject to
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the security interest afforded to Financial Security under the
Insurance Agreement); a financing statement with respect to
the Contracts has been filed with the Secretary of State of
the State of California pursuant to the California Uniform
Commercial Code, as amended, and with the Secretary of State
of the State of Delaware, pursuant to the Delaware Uniform
Commercial Code, as amended; and no other filings in any
jurisdiction or any other actions are necessary to perfect the
ownership interest of the Trustee in the Contracts against any
third parties.
(xi) The Indenture constitutes a grant by the Trust
to the Indenture Trustee of a valid security interest in the
Contracts, the security interests in the Financed Vehicles
securing the Contracts and the proceeds of each of the
foregoing (subject to the security interest afforded to
Financial Security under the Insurance Agreement), which
security interest has been perfected by the filing of
financing statements with the Secretary of State of the State
of California and the Secretary of State of the State of
Delaware, each as pursuant to the Uniform Commercial Code as
in effect in such state. No filing or other action, other than
the filing of the financing statements referred to above, is
necessary to perfect and maintain the interest or the security
interest of the Indenture Trustee in the Contracts, the
security interests in the Financed Vehicles securing the
Contracts and the proceeds of each of the foregoing against
third parties (subject to the security interest afforded to
Financial Security under the Insurance Agreement).
(xii) The Company's assignment and delivery of the
Contracts to the Trust will vest in the Trust all of the
Company's right, title and interest therein, subject to no
prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance, except that such security
interest will be subject to the security interest afforded to
Financial Security under the Insurance Agreement.
(xiii) The Trust's assignment of the Contracts to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no
prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(xiv) The Registration Statement has become effective
under the Act and the Prospectus has been filed with the
Commission, pursuant to Rule 424(b) and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated.
(xv) No order, consent or other authorization or
approval of any court, public board or governmental body is
legally required for the performance by the Company of its
obligations under this Agreement or any of the Basic Documents
to which the Company is a party, except such as have been
obtained under the Act, such as may be required under the Blue
Sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the
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Underwriters, such as have been obtained from the Office of
Thrift Supervision and such other approvals (specified in such
opinion) as have been obtained.
(xvi) Neither the consummation of the transactions
contemplated in this Agreement or any Basic Document to which
the Company is a party, nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach of,
or constitute a default under the articles of incorporation or
bylaws of the Company or the terms of (A) any indenture or
other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or is
bound, or (B) any judgment, order or decree known to such
counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries, except, in the
case of clauses (A) and (B), for defaults, breaches or
violations that do not, in the aggregate, have a material
adverse affect on the Company.
(xvii) To the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
to which the Trust or the Company is, or is threatened to be,
a party or of which the business or property of the Trust or
the Company is, or is threatened to be, the subject that is
material to the business or financial condition of the Trust
or the Company and is not disclosed in the Prospectus.
(xviii) There is no contract or other document known
to such counsel of a character required to be described in the
Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
(xix) Neither the Trust nor the Company is an
"investment company" and neither is "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(xx) The Company has obtained all material licenses,
permits and other governmental authorizations which are
necessary to the conduct of its business; such licenses,
permits and other governmental authorizations are in full
force and effect, and the Company is in all material respects
complying therewith; and the Company is otherwise in
compliance with all laws, rules, regulations and statutes of
any jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on the
Company.
(xxi) Except as to the financial statements and other
financial and statistical data included therein, as to which
such counsel need not express any opinion, such counsel (A) is
of the opinion the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and other financial or statistical data
included therein and the Form T-1) comply as to form in all
material respects with the Act and the 1939 Act and (B)
believes that the Registration Statement (except for the
financial statements and other financial or statistical data
included therein, the information regarding
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Financial Security included therein and the Form T-1), at the
time the Registration Statement became effective, did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
the Prospectus (except for the financial statements and other
financial or statistical data included therein and the
information regarding Financial Security included therein) at
the date hereof and at the Closing Date did not and does not
contain any untrue statement of a material fact and did not
and does not 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.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the
financial statements, supporting schedules and other financial
data therein, as to which no opinion need be rendered), when
they were filed with the Commission, complied as to form in
all material respects with the applicable requirements of the
Exchange Act and the Exchange Act Regulations.
(xxiii) The Indenture has been duly qualified under
the 1939 Act and the Trust Agreement is not required to be
qualified under the 1939 Act.
(e) The Representative shall have received the opinion of Xxx
Xx Xxxx, Esq., General Counsel of WFS, General Counsel of Western
Financial Bank (the "Bank"), General Counsel of WFS Financial Auto
Loans 2, Inc. ("WFAL 2") and General Counsel of WII, dated the Closing
Date and satisfactory to counsel to the Underwriters, to the effect
that:
(i) Each of WFS and WII has been duly incorporated
and is validly existing and in good standing under the laws of
the State of California, with corporate power and authority to
own its properties, to conduct its business as described in
the Prospectus and to enter into and perform its obligations
under this Agreement and each of the Basic Documents to which
it is a party, and is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the location
of its properties or the character of its operations makes
such qualification necessary, except such jurisdictions, if
any, in which the failure to be so qualified will not have a
material adverse effect on either the business or properties
of WFS or WII, as the case may be.
(ii) This Agreement has been duly authorized,
executed and delivered by WFS.
(iii) Each Basic Document to which each of WFS or WII
is a party has been duly authorized, executed and delivered by
WFS or WII, as the case may be, and each Basic Document other
than the Indemnification Agreement constitutes a legal, valid
and binding agreement of WFS or WII, as the case may be,
enforceable against WFS or WII, as the case may be, in
accordance with its terms, except as enforceability thereof
may be subject to or limited by bankruptcy,
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insolvency, reorganization or other laws, provisions or
principles now or hereafter in effect affecting the
enforcement of creditors' rights generally except that no
opinion is expressed as to the availability of remedies of
specific performance, injunction or other forms of equitable
relief, all of which may be subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the
court before which any proceeding therefor may be brought.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
performance by each of WFS or WII of its respective
obligations under this Agreement and any of the Basic
Documents to which it is a party, except such as have been
obtained.
(v) Neither the consummation of any of the
transactions contemplated by this Agreement and each of the
Basic Documents to which WFS or WII is a party nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach of, or constitute a default under, the
respective articles of incorporation or bylaws of WFS or WII,
as the case may be, or the terms of (A) any indenture or other
agreement or instrument known to such counsel and to which WFS
or WII, as the case may be, or any of its subsidiaries is a
party or is bound or (B) any judgment, order or decree known
to such counsel to be applicable to WFS or any of its
subsidiaries or WII, as the case may be, of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over WFS or any of its
subsidiaries or WII, as the case may be, except, in the case
of clauses (A) and (B), for defaults, breaches or violations
that do not, in the aggregate, have an adverse material effect
on WFS or WII, as the case may be.
(vi) To the best knowledge of such counsel, there is
no legal or governmental proceeding pending or threatened to
which WFS or WII, as the case may be, is, or is threatened to
be, a party or of which its business or property is, or is
threatened to be, the subject that would have a material
adverse effect on the ability of WFS or WII, as the case may
be, to perform its obligations under any of the Basic
Documents to which it is a party.
(vii) Each of WFS and WII has obtained all material
licenses, permits and other governmental authorizations which
are necessary to the conduct of its business; such licenses,
permits and other governmental authorizations are in full
force and effect, and each of WFS and WII is in all material
respects complying therewith; and each of WFS and WII is
otherwise in compliance with all laws, rules, regulations and
statutes of any jurisdiction to which it is subject, except
where non-compliance would not have a material adverse effect
on WFS or WII, as the case may be, or, in the case of the
Contracts, would not cause the Contracts to be unenforceable.
(viii) The Bank has been duly organized and is
validly existing and in good standing as a Federal association
pursuant to the laws of the United States of America, with the
authority within its charter to own its properties, to conduct
its business as described in the Prospectus and to enter into
and perform its
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obligations under the Reinvestment Contract dated as of
November 1, 1999, among the Bank, WFAL 2 and the Indenture
Trustee (the "Reinvestment Contract"), and the Sale and
Assignment dated as of November 1, 1999, from the Bank to WFS
of the Contracts (collectively with the Reinvestment Contract,
the "Bank Agreements").
(ix) Each of the Bank Agreements has been duly
authorized, executed and delivered by the Bank and constitutes
a legal, valid and binding instrument enforceable against the
Bank in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization or other laws, provisions or principles now or
hereafter in effect affecting the enforcement of creditors'
rights generally or the rights of creditors of savings banks
the accounts of which are insured by the Federal Deposit
Insurance Corporation and except that no opinion is expressed
as to the availability of remedies of specific performance,
injunction or other forms of equitable relief, all of which
may be subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before
which any proceeding therefor may be brought.
(x) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by the Bank
Agreements except such as have been obtained under the Act and
such as have been obtained from the Office of Thrift
Supervision.
(xi) Neither the consummation of any of the
transactions contemplated by the Bank Agreements, nor the
fulfillment of the terms thereof, will conflict with, result
in a breach of, or constitute a default under the Charter or
bylaws of the Bank or (i) the terms of any indenture or other
agreement or instrument known to such counsel to be applicable
to the Bank or any of its subsidiaries or (ii) any judgment,
order or decree known to such counsel to be applicable to the
Bank or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Bank or any of its subsidiaries, except
in the case of clauses (i) and (ii), for defaults, breaches or
violations that do not in the aggregate, have a material
adverse effect on the Bank.
(xii) The Bank is in compliance with all applicable
state and federal laws regarding its continued operation,
including those pertaining to the origination of the
Contracts, other than those laws the Bank's non-compliance
with which would not materially affect its ability to perform
its obligations under the Bank Agreements or, in the case of
the origination of the Contracts, would not cause the
Contracts to be unenforceable.
(xiii) WFAL 2 has been duly incorporated and is
validly existing and in good standing under the laws of the
State of California, with corporate power and authority to own
its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
the Reinvestment
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Contract and the Sale and Assignment, dated as of November __,
1999, from WFAL 2 to WFS of the Contracts (collectively with
the Reinvestment Contract, the "WFAL 2 Agreements"), and is
duly qualified and in good standing as a foreign corporation
in each jurisdiction in which the location of its properties
or the character of its operations makes such qualification
necessary, except such jurisdictions, if any, in which the
failure to be so qualified will not have a material adverse
effect on either the business or properties of WFAL 2, as the
case may be.
(xiv) Each of the WFAL 2 Agreements has been duly
authorized, executed and delivered by WFAL 2, and constitutes
a legal, valid and binding agreement of WFAL 2, enforceable
against WFAL 2, in accordance with its terms, except as
enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization or other laws,
provisions or principles now or hereafter in effect affecting
the enforcement of creditors' rights generally except that no
opinion is expressed as to the availability of remedies of
specific performance, injunction or other forms of equitable
relief, all of which may be subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the
court before which any proceeding therefor may be brought.
(xv) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
performance by WFAL 2 of its obligations under the WFAL 2
Agreements, except such as have been obtained.
(xvi) Neither the consummation of any of the
transactions contemplated by the WFAL 2 Agreements nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach of, or constitute a default under, the
articles of incorporation or bylaws of WFAL 2, or the terms of
(A) any indenture or other agreement or instrument known to
such counsel and to which WFAL 2 is a party or is bound or (B)
any judgment, order or decree known to such counsel to be
applicable to WFAL 2, of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over WFAL 2, except, in the case of clauses (A)
and (B), for defaults, breaches or violations that do not, in
the aggregate, have an adverse material effect on WFAL 2.
(xvii) To the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
to which WFAL 2, as the case may be, is, or is threatened to
be, a party or of which its business or property is, or is
threatened to be, the subject that would have a material
adverse effect on the ability of WFAL 2, to perform its
obligations under any of the WFAL 2 Agreements.
(xviii) WFAL 2 has obtained all material licenses,
permits and other governmental authorizations which are
necessary to the conduct of its business; such licenses,
permits and other governmental authorizations are in full
force and effect, and is in all material respects complying
therewith; and WFAL 2 is otherwise in compliance with all
laws, rules, regulations and statutes of any
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jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on
WFAL 2.
(f) The Representative shall have received from
Xxxxxxxx, Xxxxxxxxxx & Xxxxx LLP, counsel for the Company, a
letter dated the Closing Date to the effect that the
Underwriters may rely upon each opinion rendered by such
counsel to either Standard & Poor's or Xxxxx'x Investors
Service, Inc. in connection with the rating of any of the
Securities, as if each such opinion were addressed to the
Underwriters.
(g) The Representative shall have received the
opinion of Xxxxx X. Xxxxxxxxx, Esq., Assistant General Counsel
for Financial Security, dated the Closing Date and
satisfactory to counsel to the Underwriters.
(h) The Representative shall have received the
opinion addressed to the Underwriters and to WFS from
Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee, dated
the Closing Date and satisfactory in form and substance to
counsel to the Underwriters and to counsel to the Company, to
the effect that:
(i) The Owner Trustee has been duly
incorporated and is validly existing as a banking
corporation in good standing under the laws of the
State of Delaware.
(ii) The Owner Trustee has full corporate
trustee power and authority to enter into and perform
its obligations under the Trust Agreement and, on
behalf of the Trust, under the Indenture, the Sale
and Servicing Agreement and the Administration
Agreement.
(iii) The execution and delivery of the
Trust Agreement and, on behalf of the Trust, of the
Indenture, the Sale and Servicing Agreement, the
Administration Agreement, the Certificates and the
Notes and the performance by the Owner Trustee of its
obligations under the Trust Agreement, the Indenture,
the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by
all necessary corporate action of the Owner Trustee
and each has been duly executed and delivered by the
Owner Trustee.
(iv) The Trust Agreement, the Sale and
Servicing Agreement, the Indenture and the
Administration Agreement constitute valid and binding
agreements of the Owner Trustee, enforceable against
the Owner Trustee in accordance with their terms,
subject, as to enforcement of remedies, (A) to
applicable bankruptcy, insolvency and reorganization,
generally, and (B) to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(v) The execution and delivery by the Owner
Trustee of the Trust Agreement and, on behalf of the
Trustee, of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement do not
require any consent, approval or authorization of, or
any registration or filing with, any Delaware or
United States Federal governmental authority having
jurisdiction over the trust
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power of the Owner Trustee, other than those
consents, approvals or authorizations as have been
obtained and the filing of the Certificate of Trust
with the Secretary of State of the State of Delaware.
(vi) The Notes have been duly authorized,
executed and issued by the Trust. (vii) The
Certificates have been duly authorized, executed and
issued by the Trust.
(viii) The execution and delivery by the
Owner Trustee of the Trust Agreement and, on behalf
of the Trust, the Sale and Servicing Agreement, the
Indenture and the Administration Agreement, and the
performance by the Owner Trustee of its obligations
thereunder do not conflict with, result in a breach
or violation of or constitute a default under, the
Articles of Association or By-laws of the Owner
Trustee.
(i) The Representative shall have received an opinion
addressed to the Underwriters and to WFS, dated as of the
Closing Date, of Xxxxxxxx, Xxxxxx & Finger, special Delaware
counsel to the Trust, in form and substance satisfactory to
counsel to the Underwriters and counsel to WFS, to the effect
that:
(i) The Trust has been duly formed and is
validly existing as a business trust pursuant to the
laws of the State of Delaware, 12 Del. C. Section
3801, et seq.
(ii) The Trust Agreement authorizes the
Trust to execute and deliver the Indenture, the Sale
and Servicing Agreement and the Administration
Agreement, to issue the Certificates and Notes and to
grant the trust estate to the Indenture Trustee as
security for the Notes.
(iii) Assuming that the Certificates have
been duly authorized, executed and issued by the
Trust, when delivered to the Underwriter and paid for
by the Underwriter pursuant to this Agreement, the
Certificates have been validly issued and are
entitled to the benefits of the Trust Agreement.
(iv) Except for the timely filing in the
future of continuation statements with respect to the
financing statements, no other filing is required in
the State of Delaware in order to make effective the
lien of the Indenture. Insofar as the Delaware
Uniform Commercial Code, 6 Del. C.Section 9-101 et
seq. (the "UCC"), applies (without regard to conflict
of laws principles) and, assuming that the security
interests in that portion of the trust estate that
consists of general intangibles, accounts or chattel
paper, as defined under the UCC, have been duly
created and have attached, the Indenture Trustee has
a perfected security interest in such general
intangibles, accounts or chattel paper and, assuming
that the UCC search accurately lists all the
financing statements filed naming the Trust as debtor
and describing any portion of the trust estate
consisting of such general intangibles, accounts or
chattel paper, the security interest of the Indenture
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Trustee will be prior to the security interest of all
other creditors, except that such security interest
will be subject to the security interest afforded to
Financial Security under the Insurance Agreement, and
excluding purchase money security interests
under Section 9-312(4) of the UCC, and temporarily
perfected security interests pursuant
to Section 9-306(3) of the UCC (as to the priority of
temporarily unrecorded security interests in
proceeds), subject to customary and usual exceptions.
(v) No creditor of the Seller or any
Certificateholder shall have any right to obtain
possession or, or otherwise legal or equitable
remedies with respect to, the property of the Trust.
(vi) Assuming that the Sale and Servicing
Agreement conveys good title to the Trust Property
referred to therein to the Trust as a true sale and
not as a security arrangement, the Trust rather than
the Seller is the owner of the Trust Property.
(j) The Representative shall have received an opinion
addressed to the Underwriters and to WFS from White & Case,
counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to counsel to the
Underwriters and to special counsel to WFS to the effect that:
(i) The Indenture Trustee has been duly
incorporated and is validly existing as a banking
corporation under the laws of the State of New York.
(ii) The Indenture Trustee, at the time of
its execution and delivery of the Indenture, had full
power and authority to execute and deliver the
Indenture and has full power and authority to perform
its obligations thereunder.
(iii) The Indenture has been duly and
validly authorized, executed and delivered by the
Indenture Trustee and, assuming due authorization,
execution and delivery thereof by the Trustee,
constitutes the valid and binding obligation of the
Indenture Trustee enforceable against the Indenture
Trustee in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting
creditors' rights or by general principles of equity.
(iv) To the best of such counsel's
knowledge, there are no actions, proceedings or
investigations pending or threatened against or
affecting the Indenture Trustee before or by any
court, arbitrator, administrative agency or other
governmental authority which, if adversely decided,
would materially and adversely affect the ability of
the Indenture Trustee to carry out the transactions
contemplated in the Indenture.
(v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the United States of America or
any state thereof was or is required for the execution,
delivery or performance by the Indenture Trustee of the
Indenture.
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(k) The Representative shall have received the opinion of
Xxxxx & Wood LLP, counsel to the Underwriters, dated the Closing Date,
with respect to the issuance and sale of the Notes, the Registration
Statement, the Prospectus and other related matters as the
Representative may reasonably require, and the Company and WFS shall
have furnished to counsel to the Underwriters such documents as they
may reasonably request for the purpose of enabling them to pass upon
such matters.
(l) The Representative shall have received letters in form and
substance satisfactory to the Representative, addressed to the
Underwriters and dated the date hereof and the Closing Date, from Ernst
& Young LLP, independent public accountants for the Company,
substantially in the forms heretofore approved by the Representative.
(m) At the Closing Date each Class of Notes and the
Certificates shall have been rated in the highest category by each of
Xxxxx'x and Standard & Poor's, as nationally recognized rating
agencies, with regard to the benefit afforded the Notes under the Note
Policy and the Certificates under the Certificate Policy, and such
ratings shall be in full force and effect and subsequent to the
execution and delivery of this Agreement and prior to the Closing Date,
there shall not have been any downgrading, nor any notice given by any
"nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Act (a "Rating
Agency"), to the public or the Company of any intended or potential
downgrading or of a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any Rating Agency.
(n) The Representative shall have received the Indemnification
Agreement executed by all parties thereto.
10. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii)
receipt of notification of the effectiveness of the Registration Statement by
the Company or the Representative.
This Agreement may be terminated at any time prior to the Closing Date
by the Representative by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in or affecting particularly the
condition, financial or otherwise, of the Company or WFS or the earnings,
affairs or business prospects of the Company or WFS, whether or not arising in
the ordinary course of business, which would, in the reasonable judgment of the
Representative, make the offering or delivery of any Class of Notes or the
Certificates impracticable, (ii) any outbreak of hostilities or other national
or international calamity or crisis or material change in economic conditions,
if the effect of such outbreak, calamity, crisis or change on the financial
markets of the United States or elsewhere would, in the reasonable judgment of
the Representative, make the offering or delivery of any Class of Notes or the
Certificates impracticable, (iii) suspension of trading in securities on the New
York Stock Exchange or the American Stock Exchange or limitation on prices
(other than limitations on hours or numbers of days of trading) for securities
on either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other
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governmental authority which in the reasonable opinion of the Representative
materially and adversely affects, or will materially and adversely affect, the
business or operations of the Company, (v) declaration of a banking moratorium
by either federal or _____ State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the reasonable opinion the Representative has a material
adverse effect on the financial markets in the United States.
11. Miscellaneous. All communications hereunder will be in writing and
notices given pursuant to any provision of this Agreement shall be addressed as
follows: (i) if to the Company, to Xxx Xx Xxxx, Esq. at his office at 00 Xxxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx 00000, (ii) if to WFS, to Xxx Xx Xxxx, Esq. at his
office at 00 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000 or (iii) if to any
Underwriter, through the Representative at Banc of America Securities LLC, 000
Xxxxx Xxxxx Xxxxxx, Xxxx xx Xxxxxxx Corporate Center, 00xx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 or in any case to such other address as the person to be
notified may have requested in writing; provided, however, that any notice to an
Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter. Any such notice will take effect at the time of
receipt.
The respective indemnities, contribution agreements, representations,
warranties and other statements of WFS, the Company, their respective officers
and directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Securities, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of the Underwriters
or by or on behalf of the Company, its officers or directors or any controlling
person of the Company or WFS, (ii) acceptance of the Securities and payment for
them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Representative because of
any failure or refusal on the part of the Company or WFS to comply with the
terms or to fulfill any of the conditions of this Agreement, or pursuant to any
other provision hereof (other than by notice given to the Company with respect
to clauses (ii) through (vi) of the second paragraph of Section 10 hereof), the
Company and WFS agree to reimburse the Underwriters for all of their
out-of-pocket expenses (including the fees and disbursements of counsel to the
Underwriters) reasonably incurred by the Underwriters.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, WFS and the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from the Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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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.
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If the foregoing is in accordance with your understanding of the
agreement among the Company, WFS and the Underwriters, kindly sign and return to
us the enclosed duplicate hereof, whereupon it will become a binding agreement
among the Company, WFS and the several Underwriters in accordance with its
terms.
Very truly yours,
WFS FINANCIAL AUTO LOANS, INC.
By:
-----------------------------------------
Name:
Title:
WFS FINANCIAL INC
By:
-----------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first written above:
BANC OF AMERICA SECURITIES LLC as
Representative of the several
Underwriters named on Schedule I hereto
By:
-----------------------------------
Name:
Title:
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SCHEDULE I
Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3
Underwriter Notes Notes Notes
----------- --------- --------- ---------
Banc of America Securities LLC........... $ ______ $ ______ $ ______
Credit Suisse First Boston Corporation ______ ______ ______
Total $ ______ $ ______ $ ______
======== ======== ========
Amount of
Class A-4 Amount of
Underwriter Notes Certificates
----------- --------- ------------
Banc of America Securities LLC........... $ ______ $ ______
Credit Suisse First Boston Corporation ______ ______
Xxxxxxxxx, Xxxxxx & Xxxxxxxx ______ ______
Total $ ______ $ ______
======== ========
S-1
