EXHIBIT 1.1
EXECUTION COPY
WFS FINANCIAL 2003-3 OWNER TRUST
$275,000,000
1.12875% CLASS A-1 NOTES
$370,000,000
1.58% CLASS A-2 NOTES
$203,000,000
2.29% CLASS A-3A NOTES
$367,000,000
FLOATING RATE CLASS A-3B NOTES
$435,000,000
3.25% CLASS A-4 NOTES
WFS RECEIVABLES CORPORATION 2,
as Seller,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
August 5, 2003
Credit Suisse First Boston LLC,
as Representative of the several Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
WFS Receivables Corporation 2, a Nevada corporation ("WFSRC2"),
proposes to sell to the several underwriters listed on Schedule I hereto (the
"Underwriters"), for whom Credit Suisse First Boston LLC will be acting as
representative (the "Representative"), as provided in Section 2, $275,000,000
aggregate principal amount of 1.12875% Class A-1 Notes (the "Class A-1 Notes"),
$370,000,000 aggregate principal amount of 1.58% Class A-2 Notes (the "Class A-2
Notes"), $203,000,000 aggregate principal amount of 2.29% Class A-3A Notes (the
"Class A-3A Notes"), $367,000,000 aggregate principal amount of Floating Rate
Class A-3B Notes (the "Class A-3B Notes") and $435,000,000 aggregate principal
amount of 3.25% Class A-4 Notes (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-
3A Notes and the Class A-3B Notes, the "Notes") that will be issued by WFS
Financial 2003-3 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, WFSRC2 will cause the
Trust to issue Auto Receivable Backed Certificates (the "Certificates" and,
together with the Notes, the "Securities") to WFSRC2. The Notes will be issued
pursuant to an indenture, dated as of August 1, 2003 (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 August 28, 2003
(the "Trust Agreement"), among WFSRC2, 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
after August 27, 2003, (iii) security interests in the Financed Vehicles, (iv)
the Note Policy, (v) amounts on deposit in certain accounts, (vi) any amounts
paid to the Trust pursuant to the interest rate swap agreement with respect to
the Class A-3B Notes, dated as of August 1, 2003 (the "Interest Rate Swap
Agreement"), between the Trust and Bank of America, N.A. (the "Swap
Counterparty"), and (vii) certain rights under a sale and servicing agreement,
dated as of August 1, 2003 (the "Sale and Servicing Agreement"), among the
Trust, WFSRC2, as seller (the "Seller"), Westcorp 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 August 1, 2003 (the
"Administration Agreement"), among WFSRC2, Westcorp, 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 August 1,
2003 (the "Indemnification Agreement"), among WFSRC2, WFS, Financial Security
and the Representative, the insurance, indemnity and pledge agreement, dated as
of August 1, 2003(the "Insurance Agreement"), among the Trust, WFSRC2, WFS,
Financial Security and the Indenture Trustee and the Interest Rate Swap
Agreement 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 WFSRC2 has furnished to
the Underwriters.
1. Registration Statement and Prospectuses. WFSRC2 meets the
requirements for use of Form S-3 under the Securities Act of 1933, as amended
(the "Act"), for investment grade asset-backed securities and has prepared and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 333-106649), 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
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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 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 a 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 July 31, 2003. "Preliminary Prospectus"
means the preliminary prospectus supplement to the Base Prospectus dated July
31, 2003, together with such Base Prospectus, that describes the Notes and the
offering thereof and is used prior to the filing of the Prospectus with the
Commission. "Prospectus" means the supplement to the Base Prospectus dated
August 5, 2003 that is first filed with the Commission after the Execution Time,
together with such Base Prospectus, as amended at the time of such filing,
pursuant to Rule 424(b); 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 WFSRC2 has prepared (i) Collateral Term Sheets (as
defined in Section 8) that the Underwriters, WFSRC2 or WFS have provided to a
prospective investor, WFSRC2 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 Sheet or Computational Materials (each
as defined in Section 8), WFSRC2 will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term Sheets and
Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but
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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 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. WFSRC2 agrees to sell to the
Underwriters and, upon the basis of the representations, warranties and
agreements of WFSRC2 and WFS herein contained and subject to all the terms and
conditions of this Agreement, the Underwriters agree, severally, to purchase
from WFSRC2, 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, 99.87% of the
principal amount thereof, (ii) Class A-2 Notes, 99.8292% of the principal amount
thereof, (iii) Class A-3A Notes, 99.77183% of the principal amount thereof, (iv)
Class A-3B Notes, 99.79% of the principal amount thereof and (v) Class A-4
Notes, 99.74519% of the principal amount thereof.
3. Terms of Public Offering. WFSRC2 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 August 28, 2003 (such time and
date are referred to herein as the "Closing Date"). Payment for the Notes shall
be made at the offices of WFSRC2, 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 WFSRC2.
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 WFSRC2 or (ii) wire transfer (same day funds),
as the Representative and WFSRC2 shall agree.
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Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than August 28, 2003.
5. Agreements of WFSRC2. WFSRC2 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).
(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 WFSRC2,
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, WFSRC2 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 filed
therewith or incorporated by reference therein and all documents and
information incorporated or deemed to be incorporated by reference
therein, 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
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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 WFSRC2 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
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 WFSRC2 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 WFSRC2 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 WFSRC2 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 WFSRC2, 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
WFSRC2 prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Notes. To the extent, if any, that the
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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 WFSRC2 or an affiliate thereof, WFSRC2 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 (vii) of the
second paragraph of Section 10) or if for any reason WFSRC2 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) WFSRC2, 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 WFSRC2 and WFS.
(a) WFSRC2 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 WFSRC2 and the Notes 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 WFSRC2, 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
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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 WFSRC2 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 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 WFSRC2 of this
Agreement and the Basic Documents to which it is a party are within the
corporate power of WFSRC2 and have been duly authorized by all
necessary corporate action on the part of WFSRC2 and neither the
issuance and sale of the Notes to the Underwriters, nor the execution
and delivery by WFSRC2 of this Agreement and the Basic Documents to
which it is a party, nor the consummation by WFSRC2 of the transactions
herein and therein contemplated,
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nor compliance by WFSRC2 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 WFSRC2 or any indenture, mortgage, deed of trust or other
agreement or instrument to which WFSRC2 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 WFSRC2 was or is now a party or by
which it is bound.
(vii) WFSRC2 has been duly incorporated and is validly
existing in good standing under the laws of the State of Nevada 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 its business
or properties; WFSRC2 holds all material licenses, certificates and
permits from all governmental authorities necessary for the conduct of
its business as described in the Prospectus; and WFSRC2 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 WFSRC2 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 WFSRC2 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, WFSRC2 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 WFSRC2'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,
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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 WFSRC2 in
the Sale and Servicing Agreement and in the Officers' Certificates of
WFSRC2 delivered pursuant to the Basic Documents will be true and
correct at the Closing Date.
(xiii) Since March 31, 2003, 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 WFSRC2, or the earnings, affairs or business prospects of
WFSRC2, 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, and agrees with, each of the
Underwriters that the representations and warranties of WFSRC2 set forth in
Section 6(a) are true and correct, and further represents and warrants to, and
agrees with, each of the Underwriters 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 WFSRC2 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).
(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 of WFS
delivered pursuant to the Basic Documents will be true and correct at
the Closing Date.
(vii) Since March 31, 2003, 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. WFSRC2 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, all Computational Materials, each
Structural Term Sheet, each Collateral Term Sheet, each Preliminary Prospectus,
the Prospectus and all amendments and supplements to any of them (including in
each case the delivery to the Underwriters of copies thereof and, in the case of
the Registration Statement and the Prospectus and all amendments and supplements
thereto, copies of all financial statements, exhibits and documents incorporated
by reference), (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 WFSRC2'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)
(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.
11
8. Indemnification and Contribution.
(a) WFSRC2 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 (other than the hard
copy of the Intex Solutions, Inc. DealMaker program ("DealMaker") filed by
WFSRC2 with the Commission on August 4, 2003, except to the extent that any
untrue statement or alleged untrue statement of a material fact therein or
omission thereof results or is alleged to have resulted from an error in the
information furnished by WFS or WFSRC2 to the Underwriters for use in the
preparation of DealMaker), 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 misleading,
and WFSRC2 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 WFSRC2 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 WFSRC2 by the Underwriters through the Representative specifically for use
therein, it being understood that the only such information furnished by the
Underwriters consists of the following information in the Prospectus Supplement
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 WFSRC2 and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFSRC2 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
12
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 WFSRC2 or WFS by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by WFSRC2 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 the Underwriters consists of the following information
in the Prospectus Supplement 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 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 (i) an 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 Section 8(a) or
8(b), 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 Section 8(a) or 8(b): (i) in such
proportion as is appropriate to reflect the relative benefits received by WFSRC2
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
13
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of WFSRC2 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
WFSRC2 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 WFSRC2 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 WFSRC2, 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
WFSRC2, WFS or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
WFSRC2, 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
discounts or commissions 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 WFSRC2 and WFS under this Section shall be in
addition to any liability any of WFSRC2 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 WFSRC2 or WFS, to each officer of
WFSRC2 or WFS who has signed the Registration Statement and to each person, if
any, who controls WFSRC2 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 each of WFSRC2
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.
14
(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 March 31, 2003, 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 WFSRC2 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
WFSRC2, confirming the matters set forth in subsections (a), (b) and
(c) of this Section and (ii) a certificate dated the Closing Date,
signed by the President or a Vice President of WFS, confirming the
matters set forth in subsections (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 WFSRC2, dated the Closing
Date and satisfactory to counsel to the Underwriters, to the effect
that:
(i) WFSRC2 has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Nevada, 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
WFSRC2.
(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" and "ERISA Considerations", to the extent such
statements constitute matters of law or legal conclusions with
respect thereto,
15
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 WFSRC2.
(v) Each Basic Document to which WFSRC2 is a
party has been duly authorized, executed and delivered by
WFSRC2 and, assuming due authorization, execution and delivery
by the parties thereto, each such Basic Document (other than
the Indemnification Agreement) constitutes a legal, valid and
binding agreement of WFSRC2, enforceable against WFSRC2 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 need be 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 WFSRC2 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 need be 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.
16
(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, 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 need be 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 need be 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, with the Secretary of State of
the State of Nevada pursuant to the Nevada 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 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 Collateral. Such security interest, as it relates to the
Financed Vehicles securing the Contracts and the proceeds of
the foregoing has been perfected by the filing of financing
statements with the
17
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) The Indenture Trustee will have, upon
assignment of the Trust's rights under the financing statement
from WFSRC2, the Trust's filing of such financing statement in
favor of the Indenture Trustee and execution and delivery of a
depository account control agreement, dated as of August 1,
2003, among WFSRC2, the Trust, the Bank and the Indenture
Trustee, regarding the Indenture Trustee's security interest
in each of the Collection Account, the Note Distribution
Account and the Spread Account, a first priority perfected
security interest in all of the Contracts and in the proceeds
of the Contracts and other Net Collections which are held in
the Collection Account, the Note Distribution Account and the
Spread Account.
(xiii) WFSRC2'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.
(xiv) 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.
(xv) 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.
(xvi) No order, consent or other authorization or
approval of any court, public board or governmental body is
legally required for the performance by WFSRC2 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.
18
(xvii) Neither the consummation of any of the
transactions contemplated by this Agreement and each of the
Basic Documents to which WFSRC2 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 WFSRC2, or the terms of (A) any
indenture or other agreement or instrument known to such
counsel and to which WFSRC2 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 WFSRC2 or any of its
subsidiaries, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over WFSRC2 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
WFSRC2.
(xviii) To the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
to which either of the Trust or WFSRC2 is, or is threatened to
be, a party or of which the business or property of the Trust
or WFSRC2 is, or is threatened to be, the subject that is
material to the business or financial condition of the Trust
or WFSRC2 and is not disclosed in the Prospectus.
(xix) 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.
(xx) Neither the Trust nor WFSRC2 is an
"investment company" and neither is "controlled" by an
"investment company", as such terms are defined in the 1940
Act.
(xxi) WFSRC2 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 WFSRC2 is in all material respects
complying therewith; and WFSRC2 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
WFSRC2.
(xxii) 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
19
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.
(xxiii) 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.
(xxiv) 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 Westcorp,
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
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 such 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
20
affecting the enforcement of creditors' rights generally
except that no opinion need be 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 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, 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 the reinvestment contract, dated
as of August 1, 2003 (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
21
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 need be 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
Reinvestment Contract 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 Reinvestment Contract, 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 the Reinvestment Contract 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 the sale and assignment, dated
as of August 1, 2003 (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
22
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 need be 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.
(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.
(xix) Westcorp 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 Basic
23
Documents to which it is a party (collectively, the "Westcorp
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 Westcorp, as the case may be.
(xx) Each of the Westcorp Agreements has been
duly authorized, executed and delivered by Westcorp, and
constitutes a legal, valid and binding agreement of Westcorp,
enforceable against Westcorp, 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.
(xxi) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the performance by Westcorp of its obligations under the
Westcorp Agreements, except such as have been obtained.
(xxii) Neither the consummation of any of the
transactions contemplated by the Westcorp 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 Westcorp, or the terms
of (A) any indenture or other agreement or instrument known to
such counsel and to which Westcorp is a party or is bound or
(B) any judgment, order or decree known to such counsel to be
applicable to Westcorp, of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over Westcorp, 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 Westcorp.
(xxiii) To the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
to which Westcorp, 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 Westcorp, to perform its
obligations under any of the Westcorp Agreements.
(xxiv) Westcorp 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 Westcorp 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 Westcorp.
24
(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, 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.
(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 Interest Rate Swap 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, the Interest Rate Swap 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, the Interest
Rate Swap Agreement and the Administration Agreement do not
require any consent, approval or authorization of, or any
registration or filing with, any State of Delaware or United
States federal governmental authority having jurisdiction over
the trust 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.
25
(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, the Interest
Rate Swap Agreement 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 the Closing Date, of
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A, special Delaware counsel to the Trust,
satisfactory to counsel to the Underwriters, to the effect that:
(i) The Trust has been duly formed and is
validly existing as a statutory trust pursuant to the laws of
the State of Delaware, 12 Del. C. Section 3801, et seq. (the
"Act").
(ii) The Trust has the power and authority,
pursuant to the Trust Agreement and the Act, 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 any 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 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.
26
(vi) Under the Act, the Trust is a separate legal
entity and, 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 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, the Administration
Agreement and the Reinvestment Contract and its
acknowledgement and acceptance of the Sale and Servicing
Agreement (collectively, the "Indenture Trustee Agreements"),
had full power and authority to execute and deliver the
Indenture Trustee Agreements and has full power and authority
to perform its obligations thereunder.
(iii) Each of the Indenture Trustee Agreements 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 Trustee Agreements.
(v) The execution and delivery of each of the
Indenture Trustee Agreements by the Indenture Trustee, in its
respective capacities, and the performance by the Indenture
Trustee, in its respective capacities, of its terms, do not
conflict with or result in a violation of any law or
regulation of the United States or the State of New York
governing the banking or trust powers of the Indenture Trustee
or the organization certificate or by-laws of the Indenture
Trustee.
(vi) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the United States or any the
State of New York was or is required for the execution,
delivery or performance by the Indenture Trustee, in its
respective capacities, of the Indenture Trustee Agreements.
27
(j) The Representative shall have received an opinion
addressed to the Underwriters and to WFS from Xxxxx, Day Xxxxxx &
Xxxxx, special counsel to the Swap Counterparty, dated the Closing Date
and satisfactory to counsel to the Underwriters, with respect to the
organization of the Swap Counterparty, the authorization and
enforceability of the Interest Rate Swap Agreement and any other
related matters as the Representative may reasonably require.
(k) 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 WFSRC2 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, from Ernst & Young LLP,
independent public accountants for WFSRC2, substantially in the form
heretofore approved by the Representative.
(m) 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-3A Notes, Class A-3B
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 WFSRC2 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 WFSRC2's securities by either Xxxxx'x or Standard &
Poor's.
(n) The Representative shall have received the Indemnification
Agreement executed by all parties thereto.
(o) At the Closing Date, the Interest Rate Swap Agreement
shall be in effect.
(p) Bank of America, N.A. shall provide a certificate on the
Closing Date, satisfactory to counsel to the Underwriters, regarding
the information furnished by Bank of America, N.A. in its capacity as
swap counterparty for use in the Prospectus Supplement.
(q) Counsel to WFS and WFSRC2 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 WFSRC2 to the Representative.
28
This Agreement may be terminated at any time prior to the Closing Date
by the Representative by written notice to WFSRC2 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 WFSRC2 or WFS or the earnings, affairs or
business prospects of WFSRC2 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 adversely affect, the business or operations of WFSRC2 or
WFS, (v) a material disruption in securities settlement, payment or clearance
services in the United States, (vi) declaration of a banking moratorium by
either federal or New York State authorities or (vii) 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 of the Representative has a
material adverse effect on the financial markets in the United States.
11. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter agreed but failed to
purchase does not exceed 10% of the total principal amount of Notes that the
Underwriters are obligated to purchase on the Closing Date, the Representative
may make arrangements satisfactory to the Seller for the purchase of such Notes
by other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Notes that such defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date. If any Underwriter so defaults and the aggregate
principal amount of Notes with respect to which such default exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on the Closing Date and arrangements satisfactory to the Representative and the
Seller for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or WFS or the Seller except as provided
in the second and third paragraphs of Section 12. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
12. 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 WFSRC2 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 Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or in any case to such other address as the
29
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, WFSRC2, 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 WFSRC2, its officers or directors or any controlling person
of WFSRC2 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 pursuant to
Section 11 or because of any failure or refusal on the part of WFSRC2 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 WFSRC2
with respect to clauses (ii) through (vii) of the second paragraph of Section
10), WFSRC2 and WFS hereby 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 WFSRC2, 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. The Underwriters have agreed to reimburse WFSRC2 for a substantial
portion of the expenses incurred by WFSRC2 in connection with the public
offering of the Notes.
30
If the foregoing is in accordance with your understanding of the
agreement among WFSRC2, WFS and the Underwriters, kindly sign and return to us
the enclosed duplicate hereof, whereupon it will become a binding agreement
among WFSRC2, WFS and the several Underwriters in accordance with its terms.
Very truly yours,
WFS RECEIVABLES CORPORATION 2
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:
CREDIT SUISSE FIRST BOSTON LLC
as Representative of the several
Underwriters named on Schedule I hereto
By: __________________________
Name:
Title:
31
SCHEDULE I
Principal Amount Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3A of Class A-3B
Underwriter Notes Notes Notes Notes
----------- ---------------- ---------------- ---------------- -----------------
Credit Suisse First Boston LLC .. $ 96,000,000 $ 122,000,000 $ 57,000,000 $ 107,000,000
Banc of America Securities LLC .. 58,000,000 81,000,000 47,000,000 85,000,000
Barclays Capital Inc. ........... 5,000,000 5,000,000 5,000,000 5,000,000
Citigroup Global Markets Inc. ... 58,000,000 81,000,000 47,000,000 85,000,000
Deutsche Bank Securities Inc. ... 58,000,000 81,000,000 47,000,000 85,000,000
---------------- ---------------- ---------------- -----------------
Total $ 275,000,000 $ 370,000,000 $ 203,000,000 $ 367,000,000
================ ================ ================ =================
Principal Amount
of Class A-A
Underwriter Notes
----------- ----------------
Credit Suisse First Boston LLC .. $ 133,000,000
Banc of America Securities LLC .. 99,000,000
Barclays Capital Inc. ........... 5,000,000
Citigroup Global Markets Inc. ... 99,000,000
Deutsche Bank Securities Inc. ... 99,000,000
---------------
Total $ 435,000,000
===============
