EXHIBIT 1.1
WFS FINANCIAL 2002-4 OWNER TRUST
AUTO RECEIVABLE BACKED NOTES
$___________
_____% CLASS A-1
$___________
_____% CLASS A-2
$___________
_____% CLASS A-3
$___________
_____% CLASS A-4
WFS RECEIVABLES CORPORATION,
as Seller,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
October __, 2002
_____________________________,
as Representative of the several Underwriters
_____________________________
_____________________________
Dear Sirs:
WFS Receivables Corporation, a California corporation ("WFSRC"),
proposes to sell to the several underwriters listed on Schedule I hereto (the
"Underwriters"), for whom _____________________________ will be acting as
representative (the "Representative"), as provided in Section 2, $___________
aggregate principal amount of _____% Class A-1 Notes (the "Class A-1 Notes"),
$___________ aggregate principal amount of _____% Class A-2 Notes (the "Class
A-2 Notes"), $___________ aggregate principal amount of _____% Class A-3 Notes
(the "Class A-3 Notes") and $___________ aggregate principal amount of _____%
Class A-4 Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Notes") that will be issued by
WFS Financial 2002-4 Owner Trust (the "Trust"). Financial Security Assurance
Inc. ("Financial Security") will issue a financial guaranty insurance policy for
the exclusive benefit of the holders of the Notes (the "Note Policy").
Simultaneously with the issuance of the Notes, WFSRC will cause the
Trust to issue Auto Receivable Backed Certificates (the "Certificates" and,
together with the Notes, the "Securities") to WFSRC. The Notes will be issued
pursuant to an indenture, dated as of November 1, 2002 (the "Indenture"),
between the Trust and Deutsche Bank Trust Company Americas, as trustee (the
"Indenture Trustee"). The Trust will be created and the Certificates will be
issued pursuant to an amended and restated trust agreement, dated as of November
__, 2002 (the "Trust Agreement"), among WFSRC, Financial Security and Chase
Manhattan Bank USA, National Association, as trustee (the "Owner Trustee"). Each
Note will represent an obligation of, and each Certificate will evidence a
fractional undivided interest in, the Trust.
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 pre-owned automobiles and light-duty trucks financed thereby
(the "Financed Vehicles"), (ii) certain monies received under the Contracts on
and after November 6, 2002, (iii) security interests in the Financed Vehicles,
(iv) the Note Policy, (v) amounts on deposit in certain accounts and (vi)
certain rights under a sale and servicing agreement, dated as of November 1,
2002 (the "Sale and Servicing Agreement"), among the Trust, WFSRC, as seller
(the "Seller"), and WFS Financial Inc ("WFS"), as master servicer (the "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 an
administration agreement, dated as of November 1, 2002 (the "Administration
Agreement"), among WFSRC, WFS, as administrator (in such capacity, the
"Administrator"), the Trust and the Indenture Trustee, the Administrator will
perform certain administrative obligations under the Indenture. The Indenture,
the Trust Agreement, the Sale and Servicing Agreement, the Administration
Agreement, an indemnification agreement dated as of November 1, 2002 (the
"Indemnification Agreement"), among WFSRC, WFS, Financial Security and the
Representative, and the insurance, indemnity and pledge agreement, dated as of
November 1, 2002 (the "Insurance Agreement"), among the Trust, WFSRC, WFS,
Financial Security and the Indenture Trustee, are referred to herein
collectively as the "Basic Documents." 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 Notes are more
fully described in a Registration Statement (as such term is defined in Section
1) which WFSRC has furnished to the Underwriters.
1. Registration Statement and Prospectuses. WFSRC meets the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"),
and has prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-_____),
including a base prospectus and a form of preliminary prospectus supplement
relating to the offering of auto receivable backed notes, issued in series from
time to time in accordance with Rule 415 under the Act. Such registration
statement has been declared effective by the Commission. Such registration
statement, as amended at the Effective Date (as hereinafter defined), including
the exhibits thereto and any material incorporated by reference therein pursuant
to the Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), is referred to as the "Registration Statement". As used herein, the term
"Incorporated Documents", when used with respect to
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the Registration Statement as of any date, means the documents incorporated or
deemed to be incorporated by reference in the Registration Statement as of such
date pursuant to Item 12 of Form S-3 or pursuant to a no-action letter of the
Commission. If any post-effective amendment has been filed with respect to the
Registration Statement prior to the execution and delivery of this Agreement,
the most recent such amendment has been declared effective by the Commission.
The Seller will file a final base prospectus and a final prospectus supplement
relating to the Notes in accordance with Rules 415 and 424(b) under the Act. The
Seller has included in the Registration Statement all information required by
the Act and the rules thereunder to be included in the prospectus with respect
to the Notes and the offering thereof. As filed, the final prospectus and the
final prospectus supplement shall include all required information, with respect
to the Notes and the offering thereof, and shall be in all substantive respects
in the form furnished to the Representative prior to the Execution Time (as
hereinafter defined) or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest preliminary base prospectus and preliminary
prospectus supplement, if any, that have been previously furnished to the
Representative) as the Seller has advised the Representative, prior to the
Execution Time, will be included or made therein. The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) under
the Act. "Rule 415", "Rule 424" and "Regulation S-K" refer to such rules or
regulations under the Act.
As used herein, "Execution Time" means the date and time this Agreement
is executed and delivered to the parties hereto and "Effective Date" means the
date and time as of which the Registration Statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission. "Base
Prospectus" means the prospectus dated October __, 2002 included in the
Registration Statement. "Preliminary Prospectus" means the preliminary
prospectus supplement to the Base Prospectus and the Base Prospectus that
describes the Notes and the offering thereof and is used prior to the filing of
the Prospectus. "Prospectus" means the supplement to the Base Prospectus that is
first filed with the Commission after the Execution Date pursuant to Rule
424(b), together with the Base Prospectus, as amended at the time of such
filing; provided, however, that a supplement to the Base Prospectus shall be
deemed to have supplemented the Base Prospectus only with respect to the
offering of the series of securities to which it relates. "Prospectus
Supplement" means the supplement to the Base Prospectus included in the
Prospectus.
To the extent that WFSRC has prepared (i) Collateral Term Sheets (as
defined in Section 8) that the Underwriters, WFSRC or WFS have provided to a
prospective investor, WFSRC has filed with the Commission such Collateral Term
Sheets as an exhibit to a report on Form 8-K within two business days of its
receipt thereof, or (ii) Structural Term Sheets or Computational Materials (each
as defined in Section 8), WFSRC will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term Sheet and
Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Representative in final form.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, Base Prospectus, Preliminary Prospectus 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,
Preliminary Prospectus or the Prospectus, as the case may be. All references in
this
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Agreement to the terms "amend", "amendments" or "supplements" with respect to
the Registration Statement, Base Prospectus, Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the filing of any documents under
the Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, Preliminary Prospectus or the Prospectus, as
the case may be, which are or are deemed to be incorporated by reference
therein.
2. Agreements to Sell and Purchase. WFSRC agrees to sell to the
Underwriters and, upon the basis of the representations, warranties and
agreements of WFSRC and WFS herein contained and subject to all the terms and
conditions of this Agreement, the Underwriters agree to purchase from WFSRC, on
the Closing Date referred to in Section 4, the Notes at a purchase price of, in
the case of the (i) Class A-1 Notes, ____% of the principal amount thereof, (ii)
Class A-2 Notes, _____% of the principal amount thereof, (iii) Class A-3 Notes,
____% of the principal amount thereof and (iv) Class A-4 Notes, ____% of the
principal amount thereof.
3. Terms of Public Offering. WFSRC is advised by the Representative that
the Underwriters propose (i) to make a public offering of the Notes 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 upon the terms set
forth in the Prospectus.
4. Delivery and Payment. Delivery of the Notes shall be made at the
office of the Representative at Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
on or about 10:00 A.M., New York City time, on November __, 2002 (such time and
date are referred to herein as the "Closing Date"). Payment for the Notes shall
be made at the offices of WFSRC, 000 Xxxx Xxxx Xxxxxxx Xxxx #000, Xxx Xxxxx,
Xxxxxx 00000. The Closing Date and the location of the delivery of and payment
for the Notes may be varied by agreement between the Representative and WFSRC.
Each class of Notes 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., New York City time, on
the business day immediately preceding the Closing Date. The Notes shall be
delivered to the Underwriters on the Closing Date for their respective
securities 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 WFSRC or (ii) wire transfer (same day funds),
as the Representative and WFSRC 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 __, 2002.
5. Agreements of WFSRC. WFSRC agrees with each of 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).
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(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 Notes 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 WFSRC,
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, WFSRC 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 photocopies of the
manually executed 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 Notes by the Underwriters, and to use its best efforts to
cause the same to become promptly effective.
(e) Promptly after the Registration Statement became 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 of the Notes 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) any event
shall occur as a result of which, in the opinion of either WFSRC or
counsel to the Underwriters it 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
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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 Notes, to cooperate with
the Underwriters and counsel to the Underwriters in connection with the
registration or qualification of the Notes 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 Notes 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 WFSRC shall not be required
to register or qualify as a foreign corporation or to take any action
that would subject it to service of process in suits, other than as to
matters and transactions relating to the offer and sale of the Notes, in
any jurisdiction where WFSRC 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 Notes 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 and Rule 158 of the Commission.
(i) So long as any of the Notes 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 WFSRC or the Trust required to be distributed to
Noteholders or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder and (iii) such other information
concerning WFSRC, 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 WFSRC
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Notes. To the extent, if any, that the ratings provided
with respect to the Notes by Xxxxx'x Investors Service, Inc. ("Moody's")
or Standard & Poor's Rating Services, a Division of The XxXxxx-Xxxx
Companies, Inc. ("Standard & Poor's"), is conditional upon the
furnishing of documents or the taking of any other actions by WFSRC,
WFSRC shall furnish such documents and take such other actions.
(k) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Representative
pursuant to any of clauses (ii) through (vi) of the second paragraph of
Section 10) or if for any reason WFSRC shall be unable to perform its
obligations hereunder, to reimburse the Underwriters for all of their
6
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) WFSRC, during the period when the Prospectus is required to
be delivered under the Act or the Exchange Act (including the rules and
regulations under the Act (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 WFSRC and WFS.
(a) WFSRC represents and warrants to, and agrees with, each of 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 WFSRC 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 WFSRC, threatened by
the Commission. At the effective date 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, each Preliminary Prospectus, the
Prospectus and any amendment or supplement 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
WFSRC 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 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
7
Act and the Rules and Regulations, and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Notes 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 the 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 have been duly and validly authorized and (i) when
the Certificates have been executed, authenticated and delivered in
accordance with the Trust Agreement, they 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, they 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, 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 WFSRC of this Agreement and
the Basic Documents to which it is a party are within the corporate
power of WFSRC and have been duly authorized by all necessary corporate
action on the part of WFSRC and neither the issuance and sale of the
Notes to the Underwriters, nor the execution and delivery by WFSRC of
this Agreement and the Basic Documents to which it is a party, nor the
consummation by WFSRC of the transactions herein and therein
contemplated, nor compliance by WFSRC 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 WFSRC or any indenture, mortgage, deed of
trust or other agreement or instrument to which WFSRC 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 WFSRC was or is now a party
or by which it is bound.
(vii) WFSRC 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
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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
its business or properties; WFSRC holds all material licenses,
certificates and permits from all governmental authorities necessary for
the conduct of its business as described in the Prospectus; and WFSRC
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
WFSRC is a party, when executed and delivered as contemplated thereby,
will have been duly authorized, executed and delivered by such entity
and will constitute, when so executed and delivered, a legal, valid and
binding instrument enforceable against such entity 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 this Agreement and each Basic
Document conforms to the description thereof contained in the
Prospectus; and the Indenture has been duly qualified under the 1939
Act.
(ix) Neither the Trust nor WFSRC is now or, as a result of the
transactions contemplated by this Agreement, will be, 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 (the
"1940 Act").
(x) At the Closing Date, WFSRC 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
WFSRC'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).
(xi) 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 security
interest will be subject to the security interest afforded to Financial
Security under the Insurance Agreement.
(xii) The representations and warranties made by WFSRC in the
Sale and Servicing Agreement and in the Officers' Certificates delivered
pursuant to the Basic Documents to which WFSRC is a party will be true
and correct at the Closing Date.
(xiii) Since September 30, 2002, there has been no material
adverse change or development involving a prospective material adverse
change in or affecting particularly
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the condition, financial or otherwise, of WFSRC, or the earnings,
affairs or business prospects of WFSRC, 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 WFSRC 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 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 WFSRC from WFS on the Closing
Date will be 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).
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(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) The representations and warranties made by WFS in the Sale
and Servicing Agreement and in the Officers' Certificates delivered
pursuant to the Basic Documents to which WFS is a party will be true and
correct at the Closing Date.
(vii) Since September 30, 2002, 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. WFSRC 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), all Computational
Materials, each Structural Term Sheet, each Collateral Term Sheet, 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 and issuance of the
Securities and delivery of the Notes to the Underwriters, (iv) the fees and
disbursements of WFSRC's counsel and accountants, (v) the registration or
qualification of the Notes 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 the
Basic Documents, this Agreement, 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 Notes (including in each case the
disbursements of counsel to the Underwriters relating to such reproducing and
delivery), (vii) any fees paid to Xxxxx'x and Standard & Poor's in connection
with the rating of the Notes and (viii) any fees paid to Financial Security and
its counsel in connection with the issuance of the Note Policy.
8. Indemnification and Contribution.
(a) WFSRC 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,
each Preliminary Prospectus (if any), each Collateral Term Sheet (if any), each
Structural Term Sheet (if any), all Computational Materials (if any), the
Prospectus or any amendment or supplement 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 WFSRC and WFS
will reimburse each Underwriter for
11
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 WFSRC 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 WFSRC by the Underwriters through the Representative
specifically for use therein, it being understood that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of each Underwriter: under the caption
"Underwriting", the (i) concession and reallowance figures appearing in the
second table and (ii) information regarding discretionary sales contained in the
second, third and sixth paragraphs.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter of
Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the Public Securities
Association (which letter, and the Commission's response thereto, were publicly
available February 17, 1995). The term "Collateral Term Sheet" as used herein
includes any subsequent Collateral Term Sheet that reflects a substantive change
in the information presented. The term "Computational Materials" has the meaning
assigned to it in the May 17, 1994 letter of Xxxxx & Xxxx on behalf of Xxxxxx,
Xxxxxxx & Co., Inc. (which letter, and the Commission's response thereto, were
publicly available May 20, 1994).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless WFSRC and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFSRC 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 WFSRC or WFS by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by WFSRC 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 Supplement furnished on behalf of each Underwriter: under the caption
"Underwriting", the (i) concession and reallowance figures appearing in the
second table and (ii) information regarding discretionary sales contained in the
second, third and sixth paragraphs.
(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 to so notify the indemnifying party will
not relieve such indemnifying party from any liability that it may have to any
indemnified party
12
hereunder, except to the extent that such omission resulted in the incurrence of
additional liabilities or the loss of substantial defenses. 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 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 unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such proceeding
and (ii) does not include a statement as to, or admission of, fault, culpability
or a failure to act by or on behalf of any such indemnified party.
(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
WFSRC and WFS on the one hand and the Underwriters on the other from the
offering of the Notes 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 WFSRC and WFS on the one hand and the Underwriters 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 WFSRC and WFS on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by WFSRC and WFS and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Notes, in each case as set forth in the cover page of the
Prospectus Supplement. The relative fault of WFSRC, WFS and the Underwriters
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 WFSRC, WFS or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
13
WFSRC, 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
Notes) shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Notes 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.
(e) The obligations of WFSRC and WFS under this Section shall be in
addition to any liability any of WFSRC 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 WFSRC or WFS, to each officer of WFSRC
or WFS who has signed the Registration Statement and to each person, if any, who
controls WFSRC or WFS within the meaning of the Act.
9. Conditions. The several obligations of the Underwriters to purchase
the Notes under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of WFSRC 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) All actions required to be taken and all filings required to
be made by the Seller under the Act prior to the sale of the Notes shall
have been duly taken or made, the Registration Statement shall have
become effective not later than 5:30 P.M., New York City time, on the
date of this Agreement or at such later date and time as the
Representative may approve in writing, and as of 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 September 30, 2002, 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 WFSRC 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 WFSRC,
confirming the matters set forth in paragraphs (a), (b) and (c) of this
Section and (ii) a certificate dated the Closing Date,
14
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 WFSRC, dated the Closing
Date and satisfactory to counsel to the Underwriters, to the effect
that:
(i) WFSRC 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 business or properties of WFSRC.
(ii) The statements in each of the Base Prospectus and the
Prospectus Supplement set forth under the captions "Summary of
Terms", "The Notes", "The Contracts Pool" and "Certain
Information Regarding the Securities", insofar as such statements
purport to summarize certain provisions of the Notes or the Basic
Documents, provide a fair summary of such provisions, and the
statements in the Base Prospectus under the captions "Summary of
Terms--Tax Status" and "--ERISA Considerations", "Certain Legal
Aspects of the Contracts", "Federal and California Income Tax
Consequences" and "ERISA Considerations" and in the Prospectus
Supplement under the captions "Summary of Terms--Tax Status" 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
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, be subject to California
income, franchise, excise or similar taxes with respect to
interest on any Class of Notes 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
WFSRC.
(v) Each Basic Document to which WFSRC is a party has been
duly authorized, executed and delivered by WFSRC and, assuming
due authorization, execution and delivery by the parties thereto,
each Basic Document (other than
15
the Indemnification Agreement) constitutes a legal, valid and
binding agreement of WFSRC, enforceable against WFSRC 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.
(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 WFSRC and WFS) 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 enforceability thereof may be subject to or 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, authenticated and
delivered in accordance with the Trust 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
16
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 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 no other filings in any jurisdiction or any other
actions are necessary to perfect the ownership interest of the
Trust 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 Delaware, pursuant to the Uniform Commercial Code
as in effect in Delaware. 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) WFSRC's assignment and delivery of the Contracts to
the Trust will vest in the Trust a first priority perfected
security 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, except that such security interest will be
subject to the security interest afforded to Financial Security
under the Insurance Agreement.
17
(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 WFSRC of its obligations under
this Agreement or any of the Basic Documents to which it 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 Notes by the
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 any of the transactions
contemplated by this Agreement and each of the Basic Documents to
which WFSRC 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
WFSRC, or the terms of (A) any indenture or other agreement or
instrument known to such counsel and to which WFSRC 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 WFSRC or any of
its subsidiaries, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
WFSRC 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 an adverse material effect on WFSRC.
(xvii) To the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened to which
either of the Trust or WFSRC is, or is threatened to be, a party
or of which the business or property of the Trust or WFSRC is, or
is threatened to be, the subject that is material to the business
or financial condition of the Trust or WFSRC 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 WFSRC is an "investment
company" and neither is "controlled" by an "investment company",
as such terms are defined in the 1940 Act.
(xx) WFSRC 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
WFSRC is in all material respects complying therewith; and WFSRC
18
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 WFSRC.
(xxi) Except as to the financial statements and other
financial, numerical, statistical or quantitative data included
or incorporated by reference 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, numerical, statistical or quantitative data
included or incorporated by reference 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, numerical,
statistical or quantitative data included or incorporated by
reference therein, the information regarding 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, numerical, statistical or
quantitative data included or incorporated by reference 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") and General Counsel of WFS Financial Auto Loans 2,
Inc. ("WFAL 2"), dated the Closing Date and satisfactory to counsel to
the Underwriters, to the effect that:
(i) WFS 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
19
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.
(ii) This Agreement has been duly authorized, executed and
delivered by WFS.
(iii) Each Basic Document to which WFS is a party has been
duly authorized, executed and delivered by WFS, and each Basic
Document (other than the Indemnification Agreement) constitutes a
legal, valid and binding agreement of WFS, enforceable against
WFS 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.
(iv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
performance by WFS of its 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 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 WFS,
or the terms of (A) any indenture or other agreement or
instrument known to such counsel to be applicable WFS or any of
its subsidiaries or (B) any judgment, order or decree known to
such counsel to be applicable to WFS or any of its subsidiaries
of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over WFS 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 an adverse material effect on WFS.
(vi) To the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened to which
WFS 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 to perform
its obligations under any of the Basic Documents to which it is a
party.
(vii) WFS 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 WFS
is in all material respects complying therewith; and WFS is
20
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, 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
obligations under a reinvestment contract, dated as of November
1, 2002 (the "Reinvestment Contract"), among the Bank, WFAL 2 and
the Indenture Trustee.
(ix) The Reinvestment Contract 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 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 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
(A) 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 (B) 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 (A) and
(B), 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
21
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 Contract and a sale and assignment, dated as of
November __, 2002 (the "WFAL 2 Assignment" and, together with the
Reinvestment Contract, the "WFAL 2 Agreements"), from WFAL 2 to
WFS of the Contracts 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, 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.
22
(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 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 the opinion of Xxxxx
X. Xxxxxxxxx, Esq., Assistant General Counsel for Financial Security,
dated the Closing Date and satisfactory to counsel to the Underwriters.
(g) The Representative shall have received the opinion addressed
to the Underwriters and to WFS from Xxxxxxxx, Xxxxxx & Finger, P.A.,
counsel to the Owner Trustee, dated the Closing Date and satisfactory to
counsel to the Underwriters and to counsel to WFS, to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a national banking association in good
standing under the federal laws of the United States of America.
(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 constitutes a valid and binding
agreement of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its 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 Trust, 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
power of the Owner Trustee, other than those consents, approvals
or
23
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 bylaws of the Owner Trustee.
(h) The Representative shall have received an opinion addressed
to the Underwriters and to WFS, dated as of the Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, P.A, special Delaware counsel to the Trust,
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 the
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, 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 Trustee will be prior to all other
security interests of creditors of the Trust
24
perfected by filing, except that such security interest will be
subject to the security interest afforded to Financial Security
under the Insurance Agreement.
(v) No creditor of the Seller or any Certificateholder
shall have any right to obtain possession of, or other 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.
(i) The Representative shall have received an opinion addressed
to the Underwriters and to WFS from White & Case LLP, counsel to the
Indenture Trustee, dated the Closing Date and satisfactory to counsel to
the Underwriters and to 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 Indenture
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.
(j) The Representative shall have received the opinion of Xxxxxx
Xxxxxx Xxxxx & Xxxx 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 WFSRC and WFS
25
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.
(k) The Representative shall have received letters in form and
substance satisfactory to the Representative, addressed to the
Underwriters and dated the date hereof, from Ernst & Young LLP,
independent public accountants for WFSRC, substantially in the form
heretofore approved by the Representative.
(l) At the Closing Date, Xxxxx'x and Standard & Poor's shall have
rated the (i) Class A-1 Notes at least "Prime-1" and "A-1+",
respectively, and (ii) Class A-2 Notes, Class A-3 Notes and Class A-4
Notes "Aaa" and "AAA", respectively, and such ratings shall be in full
force and effect. 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 to WFSRC 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 WFSRC's securities
by either Xxxxx'x or Standard & Poor's.
(m) The Representative shall have received the Indemnification
Agreement executed by all parties thereto.
(n) Counsel to WFS and WFSRC shall provide reliance letters to
the Representative relating to each legal opinion relating to the
transaction contemplated hereby rendered by such counsel to any of the
Indenture Trustee, the Owner Trustee, Standard & Poor's or Xxxxx'x.
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 or
any post-effective amendments thereto by WFSRC or the Representative.
This Agreement may be terminated at any time prior to the Closing Date
by the Representative by written notice to WFSRC 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 WFSRC or WFS or the earnings, affairs or
business prospects of WFSRC 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
impracticable, (ii) any outbreak of hostilities or other national or
international calamity or crisis or act of terrorism or material change in
economic conditions, if the effect of such outbreak, calamity, crisis, act of
terrorism 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 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 governmental authority which in
the reasonable opinion of the Representative materially and adversely affects,
or will materially and
26
adversely affect, the business or operations of WFSRC or WFS, (v) declaration of
a banking moratorium by either federal or New York 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 either WFSRC or WFS, to Xxx Xx Xxxx, Esq. at his office at 00
Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000 or (ii) if to any Underwriter, through the
Representative at _______________________________, 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, WFSRC, 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 Notes, 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 WFSRC, its officers or directors or any controlling person of
WFSRC or WFS, (ii) acceptance of the Notes 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 WFSRC 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 WFSRC with respect to clauses
(ii) through (vi) of the second paragraph of Section 10), WFSRC 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 WFSRC, 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 Notes
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.
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.
27
If the foregoing is in accordance with your understanding of the
agreement among WFSRC, WFS and the Underwriters, kindly sign and return to us
the enclosed duplicate hereof, whereupon it will become a binding agreement
among WFSRC, WFS and the several Underwriters in accordance with its terms.
Very truly yours,
WFS RECEIVABLES CORPORATION
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:
________________________________________
as Representative of the several
Underwriters named on Schedule I hereto
By: ____________________________________
Name:
Title:
28
SCHEDULE I
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes
----------- --------------- --------------- --------------- ---------------
Credit Suisse First Boston
Corporation .............. $________ $________ $________ $________
Banc of America
Securities LLC............ _________ _________ _________ _________
Deutsche Bank Securities
Inc. ..................... _________ _________ _________ _________
Xxxxxxx Xxxxx Xxxxxx
Inc. ..................... _________ _________ _________ _________
Total $ $ $ $
