EXHIBIT 1.1
WFS FINANCIAL 2002-2 OWNER TRUST
$___,000,000
____% AUTO RECEIVABLE BACKED NOTES, CLASS A-1
$___,000,000
____% AUTO RECEIVABLE BACKED NOTES, CLASS A-2
$___,000,000
____% AUTO RECEIVABLE BACKED NOTES, CLASS A-3
$___,000,000
____% AUTO RECEIVABLE BACKED NOTES, CLASS A-4
WFS RECEIVABLES CORPORATION,
as Seller,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
May __, 2002
Deutsche Bank Securities Inc.,
as Representative of the several Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
WFS Receivables Corporation, a California corporation ("WFSRC"),
proposes to sell to the several underwriters listed on Schedule I hereto (the
"Underwriters"), for whom Deutsche Bank Securities Inc. will be acting as
representative (the "Representative"), as provided in Section 2, $___________
aggregate principal amount of ____% Auto Receivable Backed Notes, Class A-1 (the
"Class A-1 Notes"), $___________ aggregate principal amount of ____% Auto
Receivable Backed Notes, Class A-2 (the "Class A-2 Notes"), $___________
aggregate principal amount of ____% Auto Receivable Backed Notes, Class A-3 (the
"Class A-3 Notes"), $___________ 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").
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 May 1, 2002 (the "Indenture"), between the
WFS Financial 2002-2 Owner Trust (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 May __, 2002 (the "Trust Agreement"), among WFSRC,
Financial Security and Chase Manhattan Bank USA, National Association, as
trustee (the "Owner Trustee"). Each Note will represent an obligation of, and
each Certificate will evidence a fractional undivided interest in, the Trust.
The assets of the Trust will include, among other things, (i) a pool of
retail installment sales contracts and installment loans (the "Contracts")
secured by new and used automobiles and light-duty trucks financed thereby (the
"Financed Vehicles"), (ii) certain monies due under the Contracts on and after
May 30, 2002, (iii) security interests in the Financed Vehicles, (iv) the Note
Policy, (v) amounts on deposit in certain accounts and (vi) certain rights under
the sale and servicing agreement, dated as of May 1, 2002 (the "Sale and
Servicing Agreement"), among the Trust, WFSRC, as seller (the "Seller"), and WFS
Financial Inc ("WFS"), as master servicer (the "Master Servicer"). Pursuant to
the Indenture, the Trust property will be held by the Indenture Trustee on
behalf of the holders of the Notes. Pursuant to the administration agreement,
dated as of May 1, 2002 (the "Administration Agreement"), among WFSRC, WFS, as
administrator (in such capacity, the "Administrator"), the Trust and the
Indenture Trustee, the Administrator will perform certain administrative
obligations under the Indenture. The Indenture, the Trust Agreement, the Sale
and Servicing Agreement, the Administration Agreement, the indemnification
agreement dated as of May 1, 2002 (the "Indemnification Agreement"), among
WFSRC, WFS, Financial Security and the Representative, and the insurance,
indemnity and pledge agreement, dated as of May 1, 2002 (the "Insurance
Agreement"), among the Trust, WFSRC, WFS, Financial Security and the Indenture
Trustee, are referred to herein collectively as the "Basic Documents."
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Indenture or the Sale and Servicing Agreement,
as the case may be. The Notes are more fully described in a Registration
Statement (as such term is defined in Section 1) which WFSRC has furnished to
the Underwriters.
1. Registration Statement and Prospectuses. WFSRC meets the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"),
and has prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-82650),
including a base prospectus and a form of preliminary prospectus supplement
relating to the offering of auto receivable backed notes, issued in series from
time to time in accordance with Rule 415 under the Act. Such registration
statement has been declared effective by the Commission. Such registration
statement, as amended at the Effective Date (as hereinafter defined), including
the exhibits thereto and any material incorporated by reference therein pursuant
to the Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), is referred to as the "Registration Statement". If any post-effective
amendment has been filed with respect to the Registration Statement prior to the
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execution and delivery of this Agreement, the most recent such amendment has
been declared effective by the Commission. The Seller will file a final base
prospectus and a final prospectus supplement relating to the Notes in accordance
with Rules 415 and 424(b) under the Act. The Seller has included in the
Registration Statement all information required by the Act and the rules
thereunder to be included in the prospectus with respect to the Notes and the
offering thereof. As filed, the final prospectus and the final prospectus
supplement shall include all required information, with respect to the Notes and
the offering thereof and shall be in all substantive respects in the form
furnished to the Representative prior to the Execution Time (as hereinafter
defined) or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest preliminary base prospectus and preliminary prospectus
supplement, if any, that have been previously furnished to the Representative)
as the Seller has advised the Representative, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act. "Rule 415",
"Rule 424" and "Regulation S-K" refer to such rules or regulations under the
Act.
As used herein, "Execution Time" means the date and time this Agreement
is executed and delivered to the parties hereto and "Effective Date" means the
date and time as of which the Registration Statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission. "Base
Prospectus" means the 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 Agreement to the terms "amend", "amendments" or "supplements" with respect
to the
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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 Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
17th Floor, New York, New York 10019, on or about 10:00 A.M., New York City
time, on May __, 2002 (such time and date are referred to herein as the "Closing
Date"). Payment for the Notes shall be made at the offices of WFSRC, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇. 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 May __, 2002.
5. Agreements of WFSRC. WFSRC agrees with each of the Underwriters:
(a) To transmit the Prospectus to the Commission pursuant to
Rule 424(b) by a means reasonably calculated to result in the timely
filing of such Prospectus with the Commission pursuant to Rule 424(b).
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(b) To advise the Representative promptly and, if requested by
the Representative, to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, (ii) of any request by the Commission
for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of any of the Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for either such
purpose, and (iv) of the happening of any event during the period
referred to in paragraph (e) below which, in the judgment of WFSRC,
makes the Registration Statement or the Prospectus contain an untrue
statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, WFSRC will
make every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to the Representative two 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 became effective,
and from time to time thereafter for such period as in the opinion of
counsel to the Underwriters a prospectus is required by law to be
delivered in connection with sales of the Notes by the Underwriters or
such dealers as the Representative shall specify, to furnish to the
Underwriters and each such dealer as many copies of the Prospectus (and
of each amendment or supplement to the Prospectus) as the Underwriters
or such dealer may reasonably request.
(f) If during the period specified in Section 5(e) any event
shall occur as a result of which, in the opinion of either WFSRC or
counsel to the Underwriters it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not, in the light of the circumstances when it is so
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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 ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or Standard & Poor's Rating Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's"), is conditional upon
the furnishing of documents or the taking of any other actions by WFSRC,
WFSRC shall furnish such documents and take such other actions.
(k) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Representative
pursuant to 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
6
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 dates 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 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, 2002, there has been no material adverse
change or development involving a prospective material adverse change in
or affecting particularly the condition, financial or otherwise, of
WFSRC, or the earnings, affairs or business prospects of WFSRC, whether
or not arising in the ordinary course of business, except as set forth
in or contemplated in the Prospectus.
(b) WFS represents and warrants to the Underwriters that the
representations and warranties of WFSRC set forth in paragraph (a) above are
true and correct, and to the further effect that:
(i) WFS has been duly incorporated and is validly existing in
good standing under the laws of the State of California and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary, except such jurisdictions, if any, in which the failure to be
so qualified will not have a material adverse effect on either the
business or properties of WFS; WFS holds all material licenses,
certificates and permits from all governmental authorities necessary for
the conduct of its business as described in the Prospectus; and WFS has
the corporate power and authority to own its properties and conduct its
business as described in the Prospectus.
(ii) The execution and delivery by WFS of this Agreement and the
Basic Documents to which it is a party are within the corporate power of
WFS and have been duly authorized by all necessary action on the part of
WFS; and neither the execution and delivery by WFS of this Agreement and
the Basic Documents to which it is a party, nor the consummation by WFS
of the transactions herein and therein contemplated, nor compliance by
WFS with the provisions hereof and thereof, will conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or bylaws of WFS or any
indenture, mortgage, deed of trust or other agreement or instrument to
which WFS is now a party or by which it is bound, or any order of any
court or government agency or authority entered in any proceeding to
which WFS was or is now a party or by which it is bound.
(iii) Each of this Agreement and each Basic Document to which
WFS is a party has been duly authorized, executed and delivered by WFS
and constitutes a valid and binding agreement of WFS, enforceable
against WFS in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and, in the case of this Agreement and the
Indemnification Agreement, except as rights to indemnity and
contribution hereunder and thereunder may be limited by applicable law.
(iv) The Contracts transferred to WFSRC from WFS on the Closing
Date will be free and clear of all liens (including tax liens),
mortgages, pledges, charges, security interests and other encumbrances
at the time of such transfer (subject to the security interest afforded
to Financial Security under the Insurance Agreement).
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(v) WFS has the power and authority to own its properties, to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under each of the Basic Documents to which
it is a party.
(vi) The representations and warranties made by WFS in the Sale
and Servicing Agreement and in the Officers' Certificates delivered
pursuant to the Basic Documents to which WFS is a party will be true and
correct at the Closing Date.
(vii) Since March 31, 2002, there has been no material adverse
change or development involving a prospective material adverse change in
or affecting particularly the condition, financial or otherwise, of WFS,
or the earnings, affairs or business prospects of WFS, whether or not
arising in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
7. Payment of Expenses. WFSRC will pay all costs, expenses, fees and
taxes incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, filing and distribution under the Act
of the Registration Statement as first filed (including all financial
statements, exhibits and documents incorporated by reference), all Computational
Materials, each Structural Term Sheet, each Collateral Term Sheet, each
Preliminary Prospectus and all amendments and supplements to any of them
(including the delivery to the Underwriters of copies thereof), (ii) the
preparation of this Agreement, (iii) the preparation and issuance of the
Securities and delivery of the Notes to the Underwriters, (iv) the fees and
disbursements of WFSRC's counsel and accountants, (v) the registration or
qualification of the Notes for offer and sale under the securities or Blue Sky
laws of the jurisdictions referenced in Section 5(g) hereof (including in each
case the filing fees and the fees and disbursements of counsel to the
Underwriters relating to such registration or qualification and in connection
with the preparation of any Blue Sky or legal investment survey relating
thereto), (vi) the printing or copying and delivery to the Underwriters of the
Basic Documents, this Agreement, any dealer agreement, Preliminary and
Supplemental Blue Sky Memoranda, legal investment memoranda and all other
agreements, memoranda, correspondence and other documents printed and delivered
in connection with the offering of the Notes (including in each case the
disbursements of counsel to the Underwriters relating to such reproducing and
delivery), (vii) any fees paid to ▇▇▇▇▇'▇ and Standard & Poor's in connection
with the rating of the Notes and (viii) any fees paid to Financial Security and
its counsel in connection with the issuance of the Note Policy.
8. Indemnification and Contribution.
(a) WFSRC and WFS jointly and severally agree to indemnify and hold
harmless each Underwriter from and against any and all losses, claims, damages,
liabilities and judgments, joint or several, to which such Underwriter may
become subject under the Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
each Preliminary Prospectus (if any), each Collateral Term Sheet (if any), each
Structural Term Sheet (if any), all Computational Materials (if any), the
Prospectus or any amendment or supplement thereto or (ii) any omission or
alleged omission to state therein a material fact required to be stated therein
or
11
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
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Co., Inc. (which letter, and the Commission's response thereto, were
publicly available May 20, 1994).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless WFSRC and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFSRC and WFS may
become subject under the Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
(ii) any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information relating to such Underwriter
furnished to WFSRC or WFS by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by WFSRC or WFS in connection with investigating or
defending any such loss, claim, damage, liability, judgment or action as such
expenses are incurred, it being understood that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of each Underwriter: under the caption
"Underwriting", the (i) concession and reallowance figures appearing in the
second table and (ii) information regarding discretionary sales contained in the
second, third and sixth paragraphs.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
Section 8(a) or 8(b), notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve such indemnifying party from any liability that it may have to any
indemnified party 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
12
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 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
13
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 either of 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, 2002, there shall not have been any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or not arising in the
ordinary course of business, of WFSRC or WFS. On the Closing Date, the
Representative shall have received (i) a certificate dated the Closing
Date, signed by the President or a Vice President of WFSRC, confirming
the matters set forth in paragraphs (a), (b) and (c) of this Section and
(ii) a certificate dated the Closing Date, 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.
14
(d) The Representative shall have received the opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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, provisions or principles now or
hereafter in effect
15
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 application for an original
registration together with an application for registration
16
of WFS or an affiliate or predecessor of WFS as legal owner, has
been deposited with the California Department of Motor Vehicles,
and (B) no opinion is given as to the enforceability of the
security interest in a Financed Vehicle as against a subsequent
owner of a Financed Vehicle or a holder or assignee of a
certificate of title relating to such Financed Vehicle through
fraudulent or negligent transfer of such certificate of title.
(x) The Sale and Servicing Agreement, together with the
filing referred to in this subsection, creates and perfects the
ownership interest of the Trust in the Contracts which is a
valid first priority ownership interest (subject to the security
interest afforded to Financial Security under the Insurance
Agreement); a financing statement with respect to the Contracts
has been filed with the Secretary of State of the State of
California pursuant to the California Uniform Commercial Code,
as amended; and no other filings in any jurisdiction or any
other actions are necessary to perfect the ownership interest of
the Trust in the Contracts against any third parties.
(xi) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid security interest in the
Contracts, the security interests in the Financed Vehicles
securing the Contracts and the proceeds of each of the foregoing
(subject to the security interest afforded to Financial Security
under the Insurance Agreement), which security interest has been
perfected by the filing of financing statements with the
Secretary of State of the State of 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.
(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
17
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or contemplated.
(xv) No order, consent or other authorization or
approval of any court, public board or governmental body is
legally required for the performance by WFSRC of its obligations
under this Agreement or any of the Basic Documents to which it
is a party, except such as have been obtained under the Act,
such as may be required under the Blue Sky laws of any
jurisdiction in connection with the purchase and distribution of
the Notes by the Underwriters, such as have been obtained from
the Office of Thrift Supervision and such other approvals
(specified in such opinion) as have been obtained.
(xvi) Neither the consummation of any of the
transactions contemplated by this Agreement and each of the
Basic Documents to which WFSRC is a party nor the fulfillment of
the terms hereof or thereof will conflict with, result in a
breach of, or constitute a default under, the articles of
incorporation or bylaws of WFSRC, or the terms of (A) any
indenture or other agreement or instrument known to such counsel
and to which WFSRC or any of its subsidiaries is a party or is
bound or (B) any judgment, order or decree known to such counsel
to be applicable to WFSRC or any of its subsidiaries, of any
court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over WFSRC or any of its
subsidiaries, except, in the case of clauses (A) and (B), for
defaults, breaches or violations that do not, in the aggregate,
have an adverse material effect on WFSRC.
(xvii) To the best knowledge of such counsel, there is
no legal or governmental proceeding pending or threatened to
which either of the Trust or WFSRC is, or is threatened to be, a
party or of which the business or property of the Trust or WFSRC
is, or is threatened to be, the subject that is material to the
business or financial condition of the Trust or WFSRC and is not
disclosed in the Prospectus.
(xviii) There is no contract or other document known to
such counsel of a character required to be described in the
Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
(xix) Neither the Trust nor WFSRC is an "investment
company" and neither is "controlled" by an "investment company",
as such terms are defined in the 1940 Act.
(xx) WFSRC has obtained all material licenses, permits
and other governmental authorizations which are necessary to the
conduct of its business; such licenses, permits and other
governmental authorizations are in full force and effect, and
WFSRC is in all material respects complying therewith; and WFSRC
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.
18
(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 ▇▇▇ ▇▇
▇▇▇▇, 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 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.
19
(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 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
20
business as described in the Prospectus and to enter into and
perform its obligations under the Reinvestment Contract, dated
as of May 1, 2002 (the "Reinvestment Contract"), among the Bank,
WFAL 2 and the Indenture Trustee, and the Sale and Assignment,
dated as of May __, 2002 (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 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
21
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 May __, 2002 (the "WFAL 2 Assignment"
and, together with the Reinvestment Contract, the "WFAL 2
Agreements"), from WFAL 2 to WFS of the Contracts and is duly
qualified and in good standing as a foreign corporation in each
jurisdiction in which the location of its properties or the
character of its operations makes such qualification necessary,
except such jurisdictions, if any, in which the failure to be so
qualified will not have a material adverse effect on either the
business or properties of WFAL 2, as the case may be.
(xiv) Each of the WFAL 2 Agreements has been duly
authorized, executed and delivered by WFAL 2, and constitutes a
legal, valid and binding agreement of WFAL 2, enforceable
against WFAL 2, in accordance with its terms, except as
enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization or other laws, provisions
or principles now or hereafter in effect affecting the
enforcement of creditors' rights generally except that no
opinion is expressed as to the availability of remedies of
specific performance, injunction or other forms of equitable
relief, all of which may be subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the court
before which any proceeding therefor may be brought.
(xv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
performance by WFAL 2 of its obligations under the WFAL 2
Agreements, except such as have been obtained.
(xvi) Neither the consummation of any of the
transactions contemplated by the WFAL 2 Agreements nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach of, or constitute a default under, the
articles of incorporation or bylaws of WFAL 2, or the terms of
(A) any indenture or other agreement or instrument known to such
counsel and to which WFAL 2 is a party or is bound or (B) any
judgment, order or decree known to such counsel to be applicable
to WFAL 2, of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over WFAL 2,
except, in the case of clauses (A) and (B), for defaults,
breaches or violations that do not, in the aggregate, have an
adverse material effect on WFAL 2.
(xvii) To the best knowledge of such counsel, there is
no legal or governmental proceeding pending or threatened to
which WFAL 2, is, or is threatened to be, a party or of which
its business or property is, or is threatened to be, the subject
that would have a material adverse effect on the ability of WFAL
2, to perform its obligations under any of the WFAL 2
Agreements.
(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
22
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 ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇'▇
in connection with the rating of the Notes, as if each such opinion were
addressed to the Underwriters.
(g) The Representative shall have received the opinion of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.,
counsel to the Owner Trustee, dated the Closing Date and satisfactory to
counsel to the Underwriters and to counsel to WFS, to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a national banking association in good
standing under the federal laws of the United States of America.
(ii) The Owner Trustee has full corporate trustee power
and authority to enter into and perform its obligations under
the Trust Agreement and, on behalf of the Trust, under the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
(iii) The execution and delivery of the Trust Agreement
and, on behalf of the Trust, of the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the
Certificates and the Notes and the performance by the Owner
Trustee of its obligations under the Trust Agreement, the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by all
necessary corporate action of the Owner Trustee and each has
been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing
Agreement, the Indenture and the Administration Agreement
constitute valid and binding agreements of the Owner Trustee,
enforceable against the Owner Trustee in accordance with their
terms, subject, as to enforcement of remedies, (A) to applicable
bankruptcy, insolvency and reorganization, generally, and (B) to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Trust, of the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any
Delaware or
23
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 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.
(i) The Representative shall have received an opinion addressed
to the Underwriters and to WFS, dated as of the Closing Date, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A, special Delaware counsel to the Trust,
satisfactory to counsel to the Underwriters and counsel to WFS, to the
effect that:
(i) The Trust has been duly formed and is validly
existing as a business trust pursuant to the laws of the State
of Delaware, 12 Del. C.Section 3801, et seq.
(ii) The Trust Agreement authorizes the Trust to execute
and deliver the Indenture, the Sale and Servicing Agreement and
the Administration Agreement, to issue the Certificates and the
Notes and to grant the Trust Estate to the Indenture Trustee as
security for the Notes.
(iii) Assuming that the Certificates have been duly
authorized, executed and issued by the Trust, the Certificates
have been validly issued and are entitled to the benefits of the
Trust Agreement.
(iv) Except for the timely filing in the future of
continuation statements with respect to the financing
statements, no other filing is required in the State of Delaware
in order to make effective the lien of the Indenture. Insofar as
the Delaware Uniform Commercial Code, 6 Del. C. Section 9-101 et
seq. (the "UCC"), applies (without regard to conflict of laws
principles) and, assuming that the security interests in that
portion of the Trust Estate that consists of general
intangibles, accounts or chattel paper, as defined under the
UCC, have been duly created and have attached, the Indenture
Trustee has a perfected security interest in such general
intangibles, accounts or chattel paper and, assuming that the
UCC search accurately lists all the financing statements filed
naming the Trust as debtor and describing any portion of the
Trust Estate consisting of such general intangibles, accounts or
chattel paper, the security interest of the Indenture
24
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 of, or other legal or
equitable remedies with respect to, the property of the Trust.
(vi) Assuming that the Sale and Servicing Agreement
conveys good title to the Trust Property referred to therein to
the Trust as a true sale and not as a security arrangement, the
Trust rather than the Seller is the owner of the Trust Property.
(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
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.
25
(k) The Representative shall have received the opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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.
(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 WFSRC,
substantially in the form heretofore approved by the
Representative.
(m) At the Closing Date, ▇▇▇▇▇'▇ and Standard & Poor's
shall have rated the (i) Class A-1 Notes at least "Prime-1" and
"A-1+", respectively, and (ii) Class A-2 Notes, Class A-3 Notes
and Class A-4 Notes "Aaa" and "AAA", respectively, and such
ratings shall be in full force and effect. Subsequent to the
execution and delivery of this Agreement and prior to the
Closing Date, there shall not have been any downgrading, nor any
notice given to WFSRC of any intended or potential downgrading
or of a possible change that does not indicate the direction of
the possible change, in the rating accorded any of WFSRC's
securities by either ▇▇▇▇▇'▇ or Standard & Poor's.
(n) The Representative shall have received the
Indemnification Agreement executed by all parties thereto.
10. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii)
receipt of notification of the effectiveness of the Registration Statement or
any post-effective amendments thereto by WFSRC or the Representative.
This Agreement may be terminated at any time prior to the Closing Date
by the Representative by written notice to WFSRC if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in or affecting particularly the
condition, financial or otherwise, of WFSRC or WFS or the earnings, affairs or
business prospects of WFSRC or WFS, whether or not arising in the ordinary
course of business, which would, in the reasonable judgment of the
Representative, make the offering or delivery of any class of Notes
impracticable, (ii) any outbreak of hostilities or other national or
international calamity or crisis or act of terrorism or material change in
economic conditions, if the effect of such outbreak, calamity, crisis, act of
terrorism or change on the financial markets of the United States or elsewhere
would, in the reasonable judgment of the Representative, make the offering or
delivery of any class of Notes impracticable, (iii) suspension of trading in
securities on the New York Stock Exchange or the American Stock Exchange or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
the reasonable opinion of the Representative materially and adversely affects,
or will materially and adversely affect, the business or operations of WFSRC or
WFS, (v) declaration of a banking
26
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 ▇▇▇ ▇▇ ▇▇▇▇, Esq. at his office at ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or (ii) if to any Underwriter, through the
Representative at Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇. 17th
Floor, New York, New York 10019, or in any case to such other address as the
person to be notified may have requested in writing; provided, however, that any
notice to an Underwriter pursuant to Section 8 will be mailed, delivered or
telegraphed and confirmed to such Underwriter. Any such notice will take effect
at the time of receipt.
The respective indemnities, contribution agreements, representations,
warranties and other statements of WFS, WFSRC, their respective officers and
directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriters or
by or on behalf of WFSRC, its officers or directors or any controlling person of
WFSRC or WFS, (ii) acceptance of the Notes and payment for them hereunder and
(iii) termination of this Agreement.
If this Agreement shall be terminated by the Representative because of
any failure or refusal on the part of WFSRC or WFS to comply with the terms or
to fulfill any of the conditions of this Agreement, or pursuant to any other
provision hereof (other than by notice given to WFSRC with respect to clauses
(ii) through (vi) of the second paragraph of Section 10), WFSRC and WFS agree to
reimburse the Underwriters for all of their out-of-pocket expenses (including
the fees and disbursements of counsel to the Underwriters) reasonably incurred
by the Underwriters.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon WFSRC, WFS and the Underwriters,
any controlling persons referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Notes
from the Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
The Representative will act for the several Underwriters in connection
with the transactions described in this Agreement and any action taken by the
Representative under this Agreement will be binding upon all of the
Underwriters.
27
If the foregoing is in accordance with your understanding of the
agreement among WFSRC, WFS and the Underwriters, kindly sign and return to us
the enclosed duplicate hereof, whereupon it will become a binding agreement
among WFSRC, WFS and the several Underwriters in accordance with its terms.
28
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:
DEUTSCHE BANK SECURITIES INC.
as Representative of the several
Underwriters named on Schedule I hereto
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
29
SCHEDULE I
Principal Amount Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3 of Class A-4
Underwriter Notes Notes Notes Notes
----------- ---------------- ---------------- ---------------- ----------------
Deutsche Bank Securities Inc. ............
Banc of America Securities LLC............
Credit Suisse First Boston Corporation ...
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ................
Barclays Capital Inc. ....................
Total