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EXHIBIT 1.1
WFS FINANCIAL 2001-C OWNER TRUST
$180,000,000
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-1
$300,000,000
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-2
$410,000,000
FLOATING RATE AUTO RECEIVABLE BACKED NOTES, CLASS A-3
$310,000,000
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-4
WFS RECEIVABLES CORPORATION,
as Seller,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
July 27, 2001
Credit Suisse First Boston Corporation
as Representative of the several Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
WFS Receivables Corporation, a California corporation ("WFSRC"), proposes
to sell to the several underwriters listed on Schedule I hereto (the
"Underwriters"), for whom Credit Suisse First Boston Corporation will be acting
as representative (the "Representative"), as provided in Section 2, $180,000,000
aggregate principal amount of ___% Auto Receivable Backed Notes, Class A-1 (the
"Class A-1 Notes"), $300,000,000 aggregate principal amount of ___% Auto
Receivable Backed Notes, Class A-2 (the "Class A-2 Notes"), $410,000,000
aggregate principal amount of Floating Rate Auto Receivable Backed Notes, Class
A-3 (the "Class A-3 Notes"), and $310,000,000 aggregate principal amount of ___%
Auto Receivable Backed Notes, Class A-4 (the "Class A-4 Notes" and, together
with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the
"Notes"). 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").
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Simultaneously with the issuance of the Notes, WFSRC will cause the Trust
to issue Auto Receivable Backed Certificates (the "Certificates" and, together
with the Notes, the "Securities") to WFSRC. The Notes will be issued pursuant to
an indenture, dated as of August 1, 2001 (the "Indenture"), between the WFS
Financial 2001-C Owner Trust (the "Trust") and Bankers Trust Company, 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 8, 2001 (the "Trust Agreement"), among WFSRC, Financial Security and
Chase Manhattan Bank USA, National Association, as trustee (the "Owner
Trustee"). Each Note will represent an obligation of, and each Certificate will
evidence a fractional undivided interest in, the Trust.
The assets of the Trust will include, among other things, (i) a pool of
retail installment sales contracts and installment loans (the "Contracts")
secured by new and used automobiles and light-duty trucks financed thereby (the
"Financed Vehicles"), (ii) certain monies due under the Contracts on and after
August 1, 2001, (iii) security interests in the Financed Vehicles, (iv) the Note
Policy, (v) amounts on deposit in certain accounts, (vi) any amount paid to the
Trust pursuant to the interest rate swap agreement, dated July 27, 2001 (the
"Interest Rate Swap Agreement"), between the Trust and Credit Suisse First
Boston International ("CSFBI"), as swap counterparty (the "Swap Counterparty"),
and (vii) certain rights under the sale and servicing agreement, dated as of
August 1, 2001 (the "Sale and Servicing Agreement"), among the Trust, WFSRC, as
seller (the "Seller"), and WFS Financial Inc ("WFS"), as master servicer (the
"Master Servicer"). Pursuant to the Indenture, the Trust property will be held
by the Indenture Trustee on behalf of the holders of the Notes. Pursuant to the
administration agreement, dated as of August 1, 2001 (the "Administration
Agreement"), among WFSRC, WFS, as administrator (in such capacity, the
"Administrator"), the Trust and the Indenture Trustee, the Administrator will
perform certain administrative obligations under the Indenture. The Indenture,
the Trust Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the indemnification agreement dated as of August 8, 2001 (the
"Indemnification Agreement"), among WFSRC, WFS, Financial Security and the
Representative, the insurance, indemnity and pledge agreement, dated as of
August 1, 2001 (the "Insurance Agreement"), among the Trust, WFSRC, 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 WFSRC has furnished to
the Underwriters.
1. Registration Statement and Prospectuses. WFSRC meets the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"),
and has prepared and filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (File No. 333-62784),
including a base prospectus and a form of preliminary prospectus supplement
relating to the offering of auto receivable backed notes, issued in series from
time to time in accordance with Rule 415 under the Act. Such registration
statement has been declared effective by the Commission. If any post-effective
amendment has been filed with respect thereto prior to the execution and
delivery of this Agreement, the most recent such amendment has been declared
effective by the Commission. The Seller will file a final base prospectus and a
final prospectus supplement relating to the Notes in accordance with Rules 415
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and 424(b) under the Act. The Seller has included in such registration
statement, as amended at the Effective Date (as hereinafter defined), all
information required by the Act and the rules thereunder to be included in the
prospectus with respect to the Notes and the offering thereof. As filed, the
final prospectus and the final prospectus supplement shall include all required
information, with respect to the Notes and the offering thereof and shall be in
all substantive respects in the form furnished to the Representative prior to
the Execution Time 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). "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 such 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. Such
registration statement, as amended at the Effective Date, 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". "Base Prospectus" means the base
prospectus included in the Registration Statement, as amended at the time of the
filing of the Prospectus. "Preliminary Prospectus" means the preliminary
prospectus supplement to the Base Prospectus and the Base Prospectus which
describes the Notes and the offering thereof and is used prior to the filing of
the Prospectus. "Prospectus" means the supplement to the Base Prospectus that is
first filed after the Execution Date pursuant to Rule 424(b), together with the
Base Prospectus, as amended at the time of such filing; provided, however, that
a supplement to the Base Prospectus shall be deemed to have supplemented the
Base Prospectus only with respect to the offering of the series of securities to
which it relates. "Prospectus Supplement" means the supplement to the Base
Prospectus included in the Prospectus.
To the extent that WFSRC has prepared (i) Collateral Term Sheets (as
defined in Section 8) that the Underwriters, WFSRC or WFS have provided to a
prospective investor, WFSRC has filed such Collateral Term Sheets as an exhibit
to a report on Form 8-K within two business days of its receipt thereof, or (ii)
Structural Term Sheets or Computational Materials (each as defined in Section
8), WFSRC will file or cause to be filed with the Commission a report on Form
8-K containing such Structural Term Sheet and Computational Materials, as soon
as reasonably practicable after the date of this Agreement, but in any event,
not later than the date on which the Prospectus is made available to the
Representative in final form.
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement, Base Prospectus, Preliminary Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are or are deemed to be incorporated by reference in the Registration Statement,
Preliminary Prospectus or the Prospectus, as the case may be. All references in
this
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Agreement to the terms "amend", "amendments" or "supplements" with respect to
the Registration Statement, Base Prospectus, Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the filing of any documents under
the Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, Preliminary Prospectus or the Prospectus, as
the case may be, which are or are deemed to be incorporated by reference
therein.
2. Agreements to Sell and Purchase. WFSRC agrees to sell to the
Underwriters and, upon the basis of the representations, warranties and
agreements of WFSRC and WFS herein contained and subject to all the terms and
conditions of this Agreement, the Underwriters agree to purchase from WFSRC, on
the Closing Date referred to in Section 4, the Notes at a purchase price of, in
the case of the (i) Class A-1 Notes, ___% of the principal amount thereof, (ii)
Class A-2 Notes, ___% of the principal amount thereof, (iii) Class A-3 Notes,
___% of the principal amount thereof, and (iv) Class A-4 Notes, ___% of the
principal amount thereof.
3. Terms of Public Offering. WFSRC is advised by the Representative that
the Underwriters propose (i) to make a public offering of the Notes as soon
after the execution of this Agreement as in the judgment of the Representative
is advisable and (ii) initially to offer each class of Notes upon the terms set
forth in the Prospectus.
4. Delivery and Payment. Delivery of the Notes shall be made at the office
of the Representative at Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on or about 10:00 A.M., New York City time, on
August 8, 2001 (such time and date are referred to herein as the "Closing
Date"). Payment for the Notes shall be made at the offices of WFSRC, 0000 Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000. The Closing Date and the location of the
delivery of and payment for the Notes may be varied by agreement between the
Representative and WFSRC.
Each class of Notes will be initially represented by one or more
certificates in definitive form registered in the name of Cede & Co., the
nominee of The Depository Trust Company ("DTC") (the "DTC Certificates"). The
certificates evidencing the DTC Certificates shall be made available to the
Representative for inspection not later than 10:00 A.M., New York City time, on
the business day immediately preceding the Closing Date. The Notes shall be
delivered to the Underwriters on the Closing Date for their respective accounts
against payment of the purchase price therefor by either (i) certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the order of WFSRC or (ii) wire transfer (same day funds), as the
Representative and WFSRC shall agree.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto have
agreed that the Closing Date will be not later than August 8, 2001.
5. Agreements of WFSRC. WFSRC agrees with each of the Underwriters:
(a) To transmit the Prospectus to the Commission pursuant to Rule
424(b) by a means reasonably calculated to result in the timely filing of
such Prospectus with the Commission pursuant to Rule 424(b).
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(b) To advise the Representative promptly and, if requested by the
Representative, to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, (ii) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of any of the
Notes for offering or sale in any jurisdiction, or the initiation of any
proceeding for either such purpose, and (iv) of the happening of any event
during the period referred to in paragraph (e) below which, in the judgment
of WFSRC, makes the Registration Statement or the Prospectus contain an
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, WFSRC will make
every reasonable effort to obtain the withdrawal or lifting of such order
at the earliest possible time.
(c) To furnish to the Representative two signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to the Underwriters
such number of conformed copies of the Registration Statement as so filed
and of each amendment to it, without exhibits, as the Underwriters may
reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object and to prepare and file with the
Commission promptly upon the request of the Representative, any amendment
to the Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of any of the
Notes by the Underwriters, and to use its best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the opinion of counsel
to the Underwriters a prospectus is required by law to be delivered in
connection with sales of the Notes by the Underwriters or such dealers as
the Representative shall specify, to furnish to the Underwriters and each
such dealer as many copies of the Prospectus (and of each amendment or
supplement to the Prospectus) as the Underwriters or such dealer may
reasonably request.
(f) If during the period specified in Section 5(e) any event shall
occur as a result of which, in the opinion of either WFSRC or counsel to
the Underwriters it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented, will not, in the light of the circumstances
when it is so
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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 WFSRC shall not be required to register or
qualify as a foreign corporation or to take any action that would subject
it to service of process in suits, other than as to matters and
transactions relating to the offer and sale of the Notes, in any
jurisdiction where WFSRC it is not now so subject.
(h) As soon as practicable, but not later than 16 months after the
Effective Date of the Registration Statement, to cause the Trust to make
generally available to holders of the Notes an earnings statement of the
Trust covering a 12 month period beginning not later than the first day of
the Trust's fiscal quarter next following the Effective Date of the
Registration Statement. Such statement shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the Commission.
(i) So long as any of the Notes remain outstanding, promptly to
furnish to the Underwriters (i) the annual statements of compliance, annual
independent certified public accountants' reports and annual opinions of
counsel furnished to the Indenture Trustee or the Owner Trustee pursuant to
the Sale and Servicing Agreement, the Indenture and the Trust Agreement, as
soon as such statements, reports and opinions are furnished to the
Indenture Trustee or the Owner Trustee, (ii) all documents of WFSRC or the
Trust required to be distributed to Noteholders or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (iii) such other information concerning WFSRC, the Trust or
WFS as the Underwriters may reasonably request.
(j) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by WFSRC prior to
the Closing Date and to satisfy all conditions precedent to the delivery of
the Notes. To the extent, if any, that the ratings provided with respect to
the Notes by Xxxxx'x Investors Service, Inc. ("Moody's") or Standard &
Poor's (as such terms are defined in Section 7) Rating Services, a Division
of the Xxxxxx-Xxxx Companies, Inc. ("Standard & Poor's"), that initially
rates the Notes is conditional upon the furnishing of documents or the
taking of any other actions by WFSRC, WFSRC shall furnish such documents
and take such other actions.
(k) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Representative
pursuant to Section 10) or if for any reason WFSRC 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
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of counsel to the Underwriters) reasonably incurred by the Underwriters in
connection herewith.
(l) To apply the net proceeds from the offering in the manner set
forth under the caption "Use of Proceeds" in the Prospectus.
(m) WFSRC, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act (including the rules and
regulations under the Act (the "Rules and Regulations") and the rules and
regulations of the Commission under the Exchange Act (the "Exchange Act
Regulations")), will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the Exchange Act Regulations.
6. Representations and Warranties of WFSRC and WFS.
(a) WFSRC represents and warrants to, and agrees with, each of the
Underwriters that:
(i) The conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, have
been satisfied with respect to WFSRC and the Registration Statement and the
Prospectus fully comply, and any supplements or amendments thereto will
fully comply, in all material respects with the provisions of the Act.
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of WFSRC, threatened by the Commission. At
the effective date, respectively, of the Registration Statement and any
post-effective amendments thereto, at the date of this Agreement and the
Closing Date, the Registration Statement and any post-effective amendments
or supplements thereto, each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, complied or will comply in all respects
with the requirements of the Act and the Rules and Regulations, and did not
and will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading and on the date of filing the
Prospectus pursuant to Rule 424(b), the date of this Agreement and the
Closing Date, neither the Prospectus nor any amendments or supplements
thereto contained or will contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
representations and warranties in this subparagraph shall not apply to
statements or omissions in the Registration Statement or the Prospectus or
any Preliminary Prospectus made in reliance upon information furnished to
WFSRC in writing by the Underwriters through the Representative expressly
for use therein or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of the Indenture
Trustee on Form T-1 (the "Form T-1") under the Trust Indenture Act of 1939,
as amended (the "1939 Act").
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(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 Exchange Act Regulations, and, when read together with the other
information in the Prospectus, at the date of this Agreement and at the
Closing Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(v) The Securities conform to the description thereof contained in the
Prospectus and are have been duly and validly authorized and (i) when the
Certificates have been executed, authenticated and delivered in accordance
with the Trust Agreement, they will be entitled to the benefits and
security afforded by the Trust Agreement and will constitute legal, valid
and binding obligations of the Trust enforceable in accordance with their
terms and the terms of the Trust Agreement and (ii) when the Notes have
been executed, authenticated and delivered in accordance with the Indenture
and delivered to and paid for by the Underwriters as provided herein, they
will be entitled to the benefits and security afforded by the Indenture and
will constitute legal, valid and binding obligations of the Trust
enforceable in accordance with their terms and the terms of the Indenture,
subject to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally, and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(vi) The execution and delivery by WFSRC of this Agreement and the
Basic Documents to which it is a party are within the corporate power of
WFSRC and have been duly authorized by all necessary corporate action on
the part of WFSRC and neither the issuance and sale of the Notes to the
Underwriters, nor the execution and delivery by WFSRC of this Agreement and
the Basic Documents to which it is a party, nor the consummation by WFSRC
of the transactions herein and therein contemplated, nor compliance by
WFSRC with the provisions hereof or thereof, will conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or bylaws of WFSRC or any indenture,
mortgage, deed of trust or other agreement or instrument to which WFSRC is
now a party or by which it is bound, or any order of any court or
government agency or authority entered in any proceeding to which WFSRC was
or is now a party or by which it is bound.
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(vii) WFSRC has been duly incorporated and is validly existing in good
standing under the laws of the State of California and is duly qualified to
do business as a foreign corporation and is in good standing under the laws
of each jurisdiction where the character of its properties or the nature of
its activities makes such qualification necessary, except such
jurisdictions, if any, in which the failure to be so qualified will not
have a material adverse effect on its business or properties; WFSRC holds
all material licenses, certificates and permits from all governmental
authorities necessary for the conduct of its business as described in the
Prospectus; and WFSRC has the corporate power and authority to own its
properties and conduct its business as described in the Prospectus.
(viii) Each of this Agreement and the Basic Documents to which WFSRC
is a party, when executed and delivered as contemplated thereby, will have
been duly authorized, executed and delivered by such entity and will
constitute, when so executed and delivered, a legal, valid and binding
instrument enforceable against such entity in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally, subject to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and, in the case of this Agreement and
the Indemnification Agreement, except as rights to indemnity and
contribution hereunder and thereunder may be limited by applicable law;
each of this agreement and the Basic Documents conforms to the description
thereof contained in the Prospectus; and the Indenture has been duly
qualified under the 1939 Act.
(ix) Neither the Trust nor WFSRC is now or, as a result of the
transactions contemplated by this Agreement, will be, an "investment
company" and neither is "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(x) At the Closing Date, WFSRC will have good and marketable title to
the Contracts listed in Schedule A to the Sale and Servicing Agreement,
free and clear of any lien, mortgage, pledge, charge, security interest or
other encumbrance (subject to the security interest afforded to Financial
Security under the Insurance Agreement); and WFSRC's assignment and
delivery of the Contract Documents to the Trust will vest in the Trust the
good and marketable title purported to be conveyed thereby (subject to the
security interest afforded to Financial Security under the Insurance
Agreement).
(xi) The Trust's assignment of the Trust Estate to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee, for
the benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior lien, mortgage, pledge, charge,
security interest or other encumbrance, except that such security interest
will be subject to the security interest afforded to Financial Security
under the Insurance Agreement.
(xii) The representations and warranties made by WFSRC in the Sale and
Servicing Agreement and in the Officers' Certificates delivered pursuant to
the Basic Documents to which WFSRC is a party will be true and correct at
the Closing Date.
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(xiii) Since March 31, 2001, 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 WFSRC, or
the earnings, affairs or business prospects of WFSRC, whether or not
arising in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(b) WFS represents and warrants to the Underwriters that the
representations and warranties of WFSRC set forth in paragraph (a) above are
true and correct, and to the further effect that:
(i) WFS has been duly incorporated and is validly existing in good
standing under the laws of the State of California and is duly qualified to
do business as a foreign corporation and is in good standing under the laws
of each jurisdiction where the character of its properties or the nature of
its activities makes such qualification necessary, except such
jurisdictions, if any, in which the failure to be so qualified will not
have a material adverse effect on either the business or properties of WFS;
WFS holds all material licenses, certificates and permits from all
governmental authorities necessary for the conduct of its business as
described in the Prospectus; and WFS has the corporate power and authority
to own its properties and conduct its business as described in the
Prospectus.
(ii) The execution and delivery by WFS of this Agreement and the Basic
Documents to which it is a party are within the corporate power of WFS and
have been duly authorized by all necessary action on the part of WFS; and
neither the execution and delivery by WFS of this Agreement and the Basic
Documents to which it is a party, nor the consummation by WFS of the
transactions herein and therein contemplated, nor compliance by WFS with
the provisions hereof and thereof, will conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, the
articles of incorporation or bylaws of WFS or any indenture, mortgage, deed
of trust or other agreement or instrument to which WFS is now a party or by
which it is bound, or any order of any court or government agency or
authority entered in any proceeding to which WFS was or is now a party or
by which it is bound.
(iii) Each of this Agreement and each Basic Document to which WFS is a
party has been duly authorized, executed and delivered by WFS and
constitutes a valid and binding agreement of WFS, enforceable against WFS
in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and, in the case of this Agreement and the Indemnification
Agreement, except as rights to indemnity and contribution hereunder and
thereunder may be limited by applicable law.
(iv) The Contracts transferred to WFSRC from WFS on the Closing Date
were WILL BE free and clear of all liens (including tax liens), mortgages,
pledges, charges, security interests and other encumbrances at the time of
such transfer (subject to the security interest afforded to Financial
Security under the Insurance Agreement).
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(v) WFS has the power and authority to own its properties, to conduct
its business as described in the Prospectus and to enter into and perform
its obligations under each of the Basic Documents to which it is a party.
(vi) The representations and warranties made by WFS in the Sale and
Servicing Agreement and in the Officers' Certificates delivered pursuant to
the Basic Documents to which WFS is a party will be true and correct at the
Closing Date.
(vii) Since March 31, 2001, there has been no material adverse change
or development involving a prospective material adverse change in or
affecting particularly the condition, financial or otherwise, of WFS, or
the earnings, affairs or business prospects of WFS, whether or not arising
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus.
7. Payment of Expenses. WFSRC will pay all costs, expenses, fees and taxes
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing, filing and distribution under the Act of the
Registration Statement as first filed (including all financial statements,
exhibits and documents incorporated by reference), all Computational Materials,
each Structural Term Sheet, each Collateral Term Sheet, each Preliminary
Prospectus and all amendments and supplements to any of them (including the
delivery to the Underwriters of copies thereof), (ii) the preparation of this
Agreement, (iii) the preparation and issuance of the Securities and delivery of
the Notes to the Underwriters, (iv) the fees and disbursements to of WFSRC's
counsel and accountants, (v) the registration or qualification of the Notes for
offer and sale under the securities or Blue Sky laws of the jurisdictions
referenced in Section 5(g) hereof (including in each case the filing fees and
the fees and disbursements of counsel to the Underwriters relating to such
registration or qualification and in connection with the preparation of any Blue
Sky or legal investment survey relating thereto), (vi) the printing or copying
and delivery to the Underwriters of the Basic Documents, this Agreement, any
dealer agreement, Preliminary and Supplemental Blue Sky Memoranda, legal
investment memoranda and all other agreements, memoranda, correspondence and
other documents printed and delivered in connection with the offering of the
Notes (including in each case the disbursements of counsel to the Underwriters
relating to such reproducing and delivery), (vii) any fees paid to Xxxxx'x and
Standard & Poor's in connection with the rating of the Notes and (viii) any fees
paid to Financial Security and its counsel in connection with the issuance of
the Note Policy.
8. Indemnification and Contribution.
(a) WFSRC and WFS jointly and severally agree to indemnify and hold
harmless each Underwriter from and against any and all losses, claims, damages,
liabilities and judgments, joint or several, to which such Underwriter may
become subject under the Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
each Preliminary Prospectus (if any), each Collateral Term Sheet (if any), each
Structural Term Sheet (if any), all Computational Materials (if any), the
Prospectus or any amendment or supplement thereto or (ii)
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any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
WFSRC and WFS will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability, judgment or action as such
expenses are incurred; provided, however, that neither WFSRC nor WFS will be
liable in any such case to the extent that any such loss, claim, damage,
liability or judgment arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any such
document in reliance upon and in conformity with written information furnished
to WFSRC by the Underwriters through the Representative specifically for use
therein.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter of
Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the Public Securities
Association (which letter, and the Commission's response thereto, were publicly
available February 17, 1995). The term "Collateral Term Sheet" as used herein
includes any subsequent Collateral Term Sheet that reflects a substantive change
in the information presented. The term "Computational Materials" has the meaning
assigned to it in the May 17, 1994 letter of Xxxxx & Xxxx on behalf of Xxxxxx,
Xxxxxxx & Co., Inc. (which letter, and the Commission's response thereto, were
publicly available May 20, 1994).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless WFSRC and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFSRC and WFS may
become subject under the Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
(ii) any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information relating to such Underwriter
furnished to WFSRC or WFS by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by WFSRC or WFS in connection with investigating or
defending any such loss, claim, damage, liability, judgment or action as such
expenses are incurred, it being understood that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of each Underwriter under the caption
"Underwriting", the (i) concession and reallowance figures appearing in the
second table and (ii) information regarding discretionary sales contained in the
second, third and sixth paragraphs under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
Section 8(a) or 8(b), notify the indemnifying party in writing of the
commencement thereof; but the omission 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
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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 an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments referred to in subsection (a) or (b) above: (i) in
such proportion as is appropriate to reflect the relative benefits received by
WFSRC and WFS on the one hand and such Underwriter(s) on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of WFSRC and WFS on the one hand and such Underwriter(s) on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by WFSRC and WFS on the
one hand and such Underwriter(s) on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by WFSRC and WFS and the total underwriting
discounts and commissions received by such Underwriter(s), bear to the total
price to the public of the Notes, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of WFSRC, WFS and the relevant
Underwriter(s) shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
WFSRC, WFS or the relevant Underwriter(s) and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
WFSRC, WFS and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a
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result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section, no Underwriter
(except as may be provided in the agreement among underwriters relating to the
offering of the Notes) shall be required to contribute any amount in excess of
the underwriting discount or commission applicable to the Notes purchased by
such Underwriter hereunder. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of WFSRC and WFS under this Section shall be in
addition to any liability any of WFSRC or WFS may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any of the Underwriters within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of WFSRC or WFS, to each officer of WFSRC
or WFS who has signed the Registration Statement and to each person, if any, who
controls WFSRC or WFS within the meaning of the Act.
9. Conditions. The several obligations of the Underwriters to purchase the
Notes under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of WFSRC and WFS contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date.
(b) All actions required to be taken and all filings required to be
made by the Seller under the Act prior to the sale of the Notes shall have
been duly taken or made, the Registration Statement shall have become
effective not later than 5:30 P.M., New York City time, on the date of this
Agreement or at such later date and time as the Representative may approve
in writing, and as of the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) Since March 31, 2001, there shall not have been any material
adverse change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
affairs or business prospects, whether or not arising in the ordinary
course of business, of WFSRC or WFS. On the Closing Date, the
Representative shall have received (i) a certificate dated the Closing
Date, signed by the President or a Vice President of WFSRC, confirming the
matters set forth in paragraphs (a), (b) and (c) of this Section and (ii) a
certificate dated the Closing Date, signed by the President or a Vice
President of WFS, confirming the matters set forth in paragraphs (a) and
(c) of this Section. Such officers may in each certificate rely upon the
best of their information and belief as to proceedings contemplated.
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(d) The Representative shall have received the opinion of Xxxxxxxx,
Xxxxxxxxxx & Xxxxx LLP, counsel for WFSRC, dated the Closing Date and
satisfactory to counsel to the Underwriters, to the effect that:
(i) WFSRC has been duly incorporated and is validly existing and
in good standing under the laws of the State of California, with
corporate power and authority to own its properties, to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement and each of the Basic Documents
to which it is a party, and is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the location of
its properties or the character of its operations makes such
qualification necessary, except such jurisdictions, if any, in which
the failure to be so qualified will not have a material adverse effect
on either business or properties of WFSRC.
(ii) The statements in each of the Base Prospectus and the
Prospectus Supplement set forth under the captions "Summary of Terms",
"The Notes", "The Contracts Pool" and "Certain Information Regarding
the Securities", insofar as such statements purport to summarize
certain provisions of the Notes or the Basic Documents, provide a fair
summary of such provisions, and the statements in the Base Prospectus
under the captions "Summary of Terms--Tax Status" and "--ERISA
Considerations", "Certain Legal Aspects of the Contracts", "Federal
and California Income Tax Consequences" and "ERISA Considerations" and
in the Prospectus Supplement under the captions "Summary of Terms
--Tax Status" and "--ERISA Considerations", to the extent such
statements constitute matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(iii) For federal income tax purposes, the Notes will be
considered debt, the Trust will not be an association taxable as a
corporation and the Trust will not be a publicly traded partnership
taxable as a corporation. The trust fund created by the Trust
Agreement will not, for California income tax purposes, be classified
as an association taxable as a corporation, and Noteholders who are
not residents of or otherwise subject to tax in California will not,
solely by reason of their acquisition of an interest in any Class of
Notes, be subject to California income, franchise, excise or similar
taxes with respect to interest on any Class of Notes or with respect
to any of the other Trust property.
(iv) Each of this Agreement and the Indemnification Agreement has
been duly authorized, executed and delivered by WFSRC.
(v) Each Basic Document to which WFSRC is a party has been duly
authorized, executed and delivered by WFSRC and, assuming due
authorization, execution and delivery by the parties thereto, each
Basic Document (other than the Indemnification Agreement) constitutes
a legal, valid and binding agreement of WFSRC, enforceable against
WFSRC in accordance with its terms, except as enforceability thereof
may be subject to or limited by bankruptcy, insolvency, reorganization
or other laws,
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provisions or principles now or hereafter in effect affecting the
enforcement of creditors' rights generally, except that no opinion is
expressed as to the availability of remedies of specific performance,
injunction or other forms of equitable relief, all of which may be
subject to certain tests of equity jurisdiction, equitable defenses
and the discretion of the court before which any proceeding therefor
may be brought.
(vi) Assuming the due authorization, execution and delivery of
each Basic Document to which the Trust is a party by the Owner
Trustee, on behalf of the Trust, and by each other party thereto
(other than WFSRC and WFS) each such Basic Document constitutes the
valid, legal and binding obligation of the Trust enforceable against
the Trust in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
other laws now or hereafter in effect affecting the enforcement of
creditors' rights generally, and except that no opinion is expressed
as to the availability of remedies of specific performance, injunction
or other forms of equitable relief, all of which may be subject to
certain tests of equity jurisdiction, equitable defenses and the
discretion of the court before which any proceeding therefor may be
brought.
(vii) The Certificates, when executed, authenticated and
delivered in accordance with the Trust Agreement, will be validly
issued and outstanding and entitled to the benefits of the Trust
Agreement.
(viii) The Notes, when executed and authenticated in accordance
with the Indenture and delivered and paid for pursuant to this
Agreement, will be entitled to the benefits of the Indenture and will
constitute legal, valid and binding obligations of the Trust, entitled
to the benefits of the Indenture, and enforceable in accordance with
their terms and the terms of the Indenture (subject to the security
interest afforded to Financial Security under the Insurance
Agreement), subject, with respect to each of the Indenture and the
Notes, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights
generally, and except that no opinion is expressed as to the
availability of remedies of specific performance, injunction or other
forms of equitable relief, all of which may be subject to certain
tests of equity jurisdiction, equitable defenses and the discretion of
the court before which any proceeding therefor may be brought.
(ix) As to each security interest in a Financed Vehicle created
by a Contract, no filing or other action is necessary to perfect or
continue the perfected status of such security interest as against
creditors of or transferees from the obligor under such Contract, so
long as such Financed Vehicle is not removed from the State of
California for a period longer than four months, or before the end of
such four-month period, WFS perfects such security interest under
applicable law; provided that (A) no opinion is rendered as to a
security interest in a Financed Vehicle as to which neither a properly
endorsed certificate of title naming WFS or an affiliate or
predecessor of WFS as legal owner nor an
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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, and no other filings in any
jurisdiction or any other actions are necessary to perfect the
ownership interest of the Trustee in the Contracts against any third
parties.
(xi) The Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Contracts, the
security interests in the Financed Vehicles securing the Contracts and
the proceeds of each of the foregoing (subject to the security
interest afforded to Financial Security under the Insurance
Agreement), which security interest has been perfected by the filing
of financing statements with the Secretary of State of the State of
California as referenced in Section 9(d)(x) and the Secretary of State
of the State of Delaware, each as pursuant to the Uniform Commercial
Code as in effect in such state. No filing or other action, other than
the filing of the financing statements referred to above, is necessary
to perfect and maintain the interest or the security interest of the
Indenture Trustee in the Contracts, the security interests in the
Financed Vehicles securing the Contracts and the proceeds of each of
the foregoing against third parties (subject to the security interest
afforded to Financial Security under the Insurance Agreement).
(xii) WFSRC's assignment and delivery of the Contracts to the
Trust will vest in the Trust a first priority perfected security
interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance, except
that such security interest will be subject to the security interest
afforded to Financial Security under the Insurance Agreement.
(xiii) The Trust's assignment of the Contracts to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
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(xiv) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Commission, pursuant to
Rule 424(b) and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated.
(xv) No order, consent or other authorization or approval of any
court, public board or governmental body is legally required for the
performance by WFSRC of its obligations under this Agreement or any of
the Basic Documents to which it is a party, except such as have been
obtained under the Act, such as may be required under the Blue Sky
laws of any jurisdiction in connection with the purchase and
distribution of the Notes by the Underwriters, such as have been
obtained from the Office of Thrift Supervision and such other
approvals (specified in such opinion) as have been obtained.
(xvi) Neither the consummation of any of the transactions
contemplated by this Agreement and each of the Basic Documents to
which WFSRC is a party nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach of, or constitute a
default under, the articles of incorporation or bylaws of WFSRC, or
the terms of (A) any indenture or other agreement or instrument known
to such counsel and to which WFSRC or any of its subsidiaries is a
party or is bound or (B) any judgment, order or decree known to such
counsel to be applicable to WFSRC or any of its subsidiaries, of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over WFSRC or any of its subsidiaries,
except, in the case of clauses (A) and (B), for defaults, breaches or
violations that do not, in the aggregate, have an adverse material
effect on WFSRC.
(xvii) To the best knowledge of such counsel, there is no legal
or governmental proceeding pending or threatened to which either of
the Trust or WFSRC is, or is threatened to be, a party or of which the
business or property of the Trust or WFSRC is, or is threatened to be,
the subject that is material to the business or financial condition of
the Trust or WFSRC and is not disclosed in the Prospectus.
(xviii) There is no contract or other document known to such
counsel of a character required to be described in the Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xix) Neither the Trust nor WFSRC is an "investment company" and
neither is "controlled" by an "investment company", as such terms are
defined in the 1940 Act.
(xx) WFSRC has obtained all material licenses, permits and other
governmental authorizations which are necessary to the conduct of its
business; such licenses, permits and other governmental authorizations
are in full force and
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effect, and WFSRC is in all material respects complying therewith; and
WFSRC is otherwise in compliance with all laws, rules, regulations and
statutes of any jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on WFSRC.
(xxi) Except as to the financial statements and other financial
and statistical data included therein, as to which such counsel need
not express any opinion, such counsel (A) is of the opinion the
Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and other
financial or statistical data included therein and the Form T-1)
comply as to form in all material respects with the Act and the 1939
Act and (B) believes that the Registration Statement (except for the
financial statements and other financial or statistical data included
therein, the information regarding Financial Security included therein
and the Form T-1), at the time the Registration Statement became
effective, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus (except for the financial statements and other financial or
statistical data included therein and the information regarding
Financial Security included therein) at the date hereof and at the
Closing Date did not and does not contain any untrue statement of a
material fact and did not and does not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xxii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial statements,
supporting schedules and other financial data therein, as to which no
opinion need be rendered), when they were filed with the Commission,
complied as to form in all material respects with the applicable
requirements of the Exchange Act and the Exchange Act Regulations.
(xxiii) The Indenture has been duly qualified under the 1939 Act
and the Trust Agreement is not required to be qualified under the 1939
Act.
(e) The Representative shall have received the opinion of Xxx Xx Xxxx,
Esq., General Counsel of WFS, General Counsel of Western Financial Bank
(the "Bank") 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
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will not have a material adverse effect on either the business or
properties of WFS or WII, as the case may be.
(ii) This Agreement has been duly authorized, executed and
delivered by WFS.
(iii) Each Basic Document to which WFS is a party has been duly
authorized, executed and delivered by WFS, and each Basic Document
(other than the Indemnification Agreement) constitutes a legal, valid
and binding agreement of WFS, enforceable against WFS in accordance
with its terms, except as enforceability thereof may be subject to or
limited by bankruptcy, insolvency, reorganization or other laws,
provisions or principles now or hereafter in effect affecting the
enforcement of creditors' rights generally except that no opinion is
expressed as to the availability of remedies of specific performance,
injunction or other forms of equitable relief, all of which may be
subject to certain tests of equity jurisdiction, equitable defenses
and the discretion of the court before which any proceeding therefor
may be brought.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the performance by WFS of
its obligations under this Agreement and any of the Basic Documents to
which it is a party, except such as have been obtained.
(v) Neither the consummation of any of the transactions
contemplated by this Agreement and each of the Basic Documents to
which WFS is a party nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach of, or constitute a
default under, the articles of incorporation or bylaws of WFS, or the
terms of (A) any indenture or other agreement or instrument known to
such counsel and to which WFS or any of its subsidiaries is a party or
is bound or (B) any judgment, order or decree known to such counsel to
be applicable to WFS or any of its subsidiaries 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
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material adverse effect on WFS, or, in the case of the Contracts,
would not cause the Contracts to be unenforceable.
(viii) The Bank has been duly organized and is validly existing
and in good standing as a Federal association pursuant to the laws of
the United States of America, with the authority within its charter to
own its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Reinvestment Contract dated as of August 1, 2001 (the "Reinvestment
Contract"), among the Bank, WFAL 2 and the Indenture Trustee, and the
Sale and Assignment dated as of August 8, 2001 (the "Bank Assignment"
and, together with the Reinvestment Contract, the "Bank Agreements"),
from the Bank to WFS of the Contracts.
(ix) Each of the Bank Agreements has been duly authorized,
executed and delivered by the Bank and constitutes a legal, valid and
binding instrument enforceable against the Bank in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other laws, provisions or principles now
or hereafter in effect affecting the enforcement of creditors' rights
generally or the rights of creditors of savings banks the accounts of
which are insured by the Federal Deposit Insurance Corporation and
except that no opinion is expressed as to the availability of remedies
of specific performance, injunction or other forms of equitable
relief, all of which may be subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the court
before which any proceeding therefor may be brought.
(x) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by the Bank Agreements except such as have
been obtained under the Act and such as have been obtained from the
Office of Thrift Supervision.
(xi) Neither the consummation of any of the transactions
contemplated by the Bank Agreements, nor the fulfillment of the terms
thereof, will conflict with, result in a breach of, or constitute a
default under the Charter or bylaws of the Bank or (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
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with which would not materially affect its ability to perform its
obligations under the Bank Agreements or, in the case of the
origination of the Contracts, would not cause the Contracts to be
unenforceable.
(xiii) WFAL 2 has been duly incorporated and is validly existing
and in good standing under the laws of the State of California, with
corporate power and authority to own its properties, to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under the Reinvestment Contract and the Sale and
Assignment, dated as of August 8, 2001 (the "WFAL 2 Assignment" and,
together with the Reinvestment Contract, the "WFAL 2 Agreements"),
from WFAL 2 to WFS of the Contracts and is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
location of its properties or the character of its operations makes
such qualification necessary, except such jurisdictions, if any, in
which the failure to be so qualified will not have a material adverse
effect on either the business or properties of WFAL 2, as the case may
be.
(xiv) Each of the WFAL 2 Agreements has been duly authorized,
executed and delivered by WFAL 2, and constitutes a legal, valid and
binding agreement of WFAL 2, enforceable against WFAL 2, in accordance
with its terms, except as enforceability thereof may be subject to or
limited by bankruptcy, insolvency, reorganization or other laws,
provisions or principles now or hereafter in effect affecting the
enforcement of creditors' rights generally except that no opinion is
expressed as to the availability of remedies of specific performance,
injunction or other forms of equitable relief, all of which may be
subject to certain tests of equity jurisdiction, equitable defenses
and the discretion of the court before which any proceeding therefor
may be brought.
(xv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the performance by WFAL 2
of its obligations under the WFAL 2 Agreements, except such as have
been obtained.
(xvi) Neither the consummation of any of the transactions
contemplated by the WFAL 2 Agreements nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach of, or
constitute a default under, the articles of incorporation or bylaws of
WFAL 2, or the terms of (A) any indenture or other agreement or
instrument known to such counsel and to which WFAL 2 is a party or is
bound or (B) any judgment, order or decree known to such counsel to be
applicable to WFAL 2, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over WFAL
2, except, in the case of clauses (A) and (B), for defaults, breaches
or violations that do not, in the aggregate, have an adverse material
effect on WFAL 2.
(xvii) To the best knowledge of such counsel, there is no legal
or governmental proceeding pending or threatened to which WFAL 2, 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
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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.
(f) The Representative shall have received from Xxxxxxxx, Xxxxxxxxxx &
Xxxxx LLP, counsel for WFS and WFSRC, a letter dated the Closing Date to
the effect that the Underwriters may rely upon each opinion rendered by
such counsel to either Standard & Poor's or Xxxxx'x in connection with the
rating of any of the Notes, as if each such opinion were addressed to the
Underwriters.
(g) The Representative shall have received the opinion of Xxxxx X.
Xxxxxxxxx, Esq., Assistant General Counsel for Financial Security, dated
the Closing Date and satisfactory to counsel to the Underwriters.
(h) The Representative shall have received the opinion addressed to
the Underwriters and to WFS from Xxxxxxxx, Xxxxxx & Finger, P.A., counsel
to the Owner Trustee, dated the Closing Date and satisfactory to counsel to
the Underwriters and to counsel to WFS, to the effect that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the State of Delaware.
(ii) The Owner Trustee has full corporate trustee power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Trust, under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, of the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Certificates and the
Notes and the performance by the Owner Trustee of its obligations
under the Trust Agreement, the Indenture, the Sale and Servicing
Agreement and the Administration Agreement have been duly authorized
by all necessary corporate action of the Owner Trustee and each has
been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement, the
Indenture, the Administration Agreement and the Interest Rate Swap
Agreement constitute valid and binding agreements of the Owner
Trustee, enforceable against the Owner Trustee in accordance with
their terms, subject, as to enforcement of remedies, (A) to applicable
bankruptcy, insolvency and reorganization, generally,
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and (B) to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trustee, of the Indenture, the Sale
and Servicing Agreement, the Administration Agreement and the Interest
Rate Swap Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any Delaware or
United States Federal governmental authority having jurisdiction over
the trust power of the Owner Trustee, other than those consents,
approvals or authorizations as have been obtained and the filing of
the Certificate of Trust with the Secretary of State of the State of
Delaware.
(vi) The Notes have been duly authorized, executed and issued by
the Trust.
(vii) The Certificates have been duly authorized, executed and
issued by the Trust.
(viii) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, the Sale and Servicing
Agreement, the Indenture, the Administration Agreement and the
Interest Rate Swap Agreement, and the performance by the Owner Trustee
of its obligations thereunder do not conflict with, result in a breach
or violation of or constitute a default under, the Articles of
Association or By-laws of the Owner Trustee.
(i) The Representative shall have received an opinion addressed to the
Underwriters and to WFS, dated as of the Closing Date, of Xxxxxxxx, Xxxxxx
& Finger, P.A, special Delaware counsel to the Trust, satisfactory to
counsel to the Underwriters and counsel to WFS, to the effect that:
(i) The Trust has been duly formed and is validly existing as a
business trust pursuant to the laws of the State of Delaware, 12 Del.
C. Section 3801, et seq.
(ii) The Trust Agreement authorizes the Trust to execute and
deliver the Indenture, the Sale and Servicing Agreement and the
Administration Agreement, to issue the Certificates and the Notes and
to grant the Trust Estate to the Indenture Trustee as security for the
Notes.
(iii) Assuming that the Certificates have been duly authorized,
executed and issued by the Trust, the Certificates have been validly
issued and are entitled to the benefits of the Trust Agreement.
(iv) Except for the timely filing in the future of continuation
statements with respect to the financing statements, no other filing
is required in the State of Delaware in order to make effective the
lien of the Indenture. Insofar as the Delaware Uniform Commercial
Code, 6 Del. C. Section 9-101 et seq. (the "UCC"), applies (without
regard to conflict of laws principles) and, assuming that the
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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 the security interest of all
other creditors, except that such security interest will be subject to
the security interest afforded to Financial Security under the
Insurance Agreement, and excluding purchase money security interests
under Section 9-324 of the UCC, and temporarily perfected security
interests pursuant to Section 9-315 of the UCC (as to the priority of
temporarily unrecorded security interests in proceeds), subject to
customary and usual exceptions.
(v) No creditor of the Seller or any Certificateholder shall have
any right to obtain possession or, or otherwise legal or equitable
remedies with respect to, the property of the Trust.
(vi) Assuming that the Sale and Servicing Agreement conveys good
title to the Trust Property referred to therein to the Trust as a true
sale and not as a security arrangement, the Trust rather than the
Seller is the owner of the Trust Property.
(j) The Representative shall have received an opinion addressed to the
Underwriters and to WFS from White & Case LLP, counsel to the Indenture
Trustee, dated the Closing Date and satisfactory to counsel to the
Underwriters and to counsel to WFS to the effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a banking corporation under the laws of the State
of New York.
(ii) The Indenture Trustee, at the time of its execution and
delivery of the Indenture, had full power and authority to execute and
deliver the Indenture and has full power and authority to perform its
obligations thereunder.
(iii) The Indenture has been duly and validly authorized,
executed and delivered by the Indenture Trustee and, assuming due
authorization, execution and delivery thereof by the 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
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adversely affect the ability of the Indenture Trustee to carry out the
transactions contemplated in the Indenture.
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the United States of America or any state thereof was or is
required for the execution, delivery or performance by the Indenture
Trustee of the Indenture.
(k) The Representative shall have received an opinion addressed to the
Underwriters and to WFS from CSFBI's in-house counsel, dated the Closing
Date and satisfactory to counsel to the Underwriters and to counsel to WFS,
with respect to the organization of CSFBI, the authorization and
enforceability of the Interest Rate Swap Agreement and any other related
matters as the Representative may reasonably require.
(l) The Representative shall have received the opinion of Xxxxxx
Xxxxxx Xxxxx & Xxxx LLP, counsel to the Underwriters, dated the Closing
Date, with respect to the issuance and sale of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may reasonably require, and WFSRC and WFS 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.
(m) The Representative shall have received letters in form and
substance satisfactory to the Representative, addressed to the Underwriters
and dated the date hereof, from Ernst & Young LLP, independent public
accountants for WFSRC, substantially in the form heretofore approved by the
Representative.
(n) At the Closing Date Xxxxx'x and Standard and Poor's shall have
rated (i) the Class A-1 Notes at least "Prime-1" and "A-1+", respectively
and, (ii) the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes "Aaa"
and "AAA", respectively. Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been any
downgrading, nor any notice given to WFSRC of any intended or potential
downgrading or of a possible change that does not indicate the direction of
the possible change, in the rating accorded any of WFSRC's securities by
either Xxxxx'x or Standard & Poor's.
(o) The Representative shall have received the Indemnification
Agreement executed by all parties thereto.
(p) At the Closing Date, the Interest Rate Swap Agreement between the
Trust and the Swap Counterparty for the Class A-3 Notes acceptable to
Financial Security shall be in effect.
(q) CSFBI shall provide a certificate on the Closing Date,
satisfactory to counsel to the Underwriters and counsel to WFS and WFSRC,
regarding the information furnished by CSFBI in its capacity as swap
counterparty for use in the Prospectus Supplement.
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10. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii)
receipt of notification of the effectiveness of the Registration Statement by
WFSRC or the Representative.
This Agreement may be terminated at any time prior to the Closing Date by
the Representative by written notice to WFSRC if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in or affecting particularly the
condition, financial or otherwise, of WFSRC or WFS or the earnings, affairs or
business prospects of WFSRC or WFS, whether or not arising in the ordinary
course of business, which would, in the reasonable judgment of the
Representative, make the offering or delivery of any class of Notes
impracticable, (ii) any outbreak of hostilities or other national or
international calamity or crisis or material change in economic conditions, if
the effect of such outbreak, calamity, crisis or change on the financial markets
of the United States or elsewhere would, in the reasonable judgment of the
Representative, make the offering or delivery of any class of Notes
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 WFSRC or WFS, (v) declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in the reasonable opinion the Representative has a
material adverse effect on the financial markets in the United States.
11. Miscellaneous. All communications hereunder will be in writing and
notices given pursuant to any provision of this Agreement shall be addressed as
follows: (i) if to either WFSRC or WFS, to Xxx Xx Xxxx, Esq. at his office at 00
Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000 or (ii) if to any Underwriter, through the
Representative at Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or in any case to such other address as the person to
be notified may have requested in writing; provided, however, that any notice to
an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed
and confirmed to such Underwriter. Any such notice will take effect at the time
of receipt.
The respective indemnities, contribution agreements, representations,
warranties and other statements of WFS, WFSRC, their respective officers and
directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriters or
by or on behalf of WFSRC, its officers or directors or any controlling person of
WFSRC or WFS, (ii) acceptance of the Notes and payment for them hereunder and
(iii) termination of this Agreement.
If this Agreement shall be terminated by the Representative because of any
failure or refusal on the part of WFSRC or WFS to comply with the terms or to
fulfill any of the conditions of this Agreement, or pursuant to any other
provision hereof (other than by notice given to
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WFSRC with respect to clauses (ii) through (vi) of the second paragraph of
Section 10), WFSRC and WFS agree to reimburse the Underwriters for all of their
out-of-pocket expenses (including the fees and disbursements of counsel to the
Underwriters) reasonably incurred by the Underwriters.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon WFSRC, WFS and the Underwriters,
any controlling persons referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Notes
from the Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
The Representative will act for the several Underwriters in connection with
the transactions described in this Agreement and any action taken by the
Representative under this Agreement will be binding upon all of the
Underwriters.
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If the foregoing is in accordance with your understanding of the agreement
among WFSRC, WFS and the Underwriters, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement among WFSRC, WFS
and the several Underwriters in accordance with its terms.
Very truly yours,
WFS RECEIVABLES CORPORATION
By:
-------------------------------------
Name:
Title:
WFS FINANCIAL INC
By:
-------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
CREDIT SUISSE FIRST BOSTON CORPORATION
as Representative of the several
Underwriters named on Schedule I hereto
By:
-------------------------------------
Name:
Title:
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SCHEDULE I
Amount of Amount of Class A-2 Amount of Class A-3 Amount of
Underwriter Class A-1 Notes Notes Notes Class A-4 Notes
----------- --------------- ------------------- ------------------- ---------------
Credit Suisse First Boston
Corporation ............. $ $ $ $
Banc of America
Securities LLC...........
Deutsche Banc Xxxx.
Xxxxx Inc................
Xxxxxxx Xxxxx Xxxxxx Inc.....
------------ ------------ ------------ ------------
Total $180,000,000 $300,000,000 $410,000,000 $310,000,000
============ ============ ============ ============
