EXHIBIT 1.1
WFS FINANCIAL 2003- OWNER TRUST
CLASS A-1 NOTES
CLASS A-2 NOTES
CLASS A-3 NOTES
CLASS A-4 NOTES
CLASS B NOTES
CLASS C NOTES
CLASS D NOTES
WFS RECEIVABLES CORPORATION 3,
as Seller,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
, 200
Dear Sirs:
WFS Receivables Corporation 3, a California corporation ("WFSRC3"),
proposes to sell to the several underwriters listed on Schedule I hereto (the
"Underwriters"), for whom Xxxxxxx Xxxxx Xxxxxx Inc. will be acting as
representative (the "Representative"), as provided in
Section 2, of Auto Receivable Backed Notes consisting of $ aggregate
principal amount of % Class A-1 Notes (the "Class A-1 Notes"), $
aggregate principal amount of % Class A-2 Notes (the "Class A-2 Notes"),
$ aggregate principal amount of % Class A-3 Notes (the "Class A-3
Notes"), $ aggregate principal amount of % Class A-4 Notes (the "Class
A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes"), $ aggregate principal amount of
% Class B Notes (the "Class B Notes"), $ aggregate principal amount of
% Class C Notes (the "Class C Notes") and $ aggregate principal amount
of % Class D Notes (the "Class D Notes" and, together with the Class A Notes,
the Class B Notes and the Class C Notes, the "Notes") that will be issued by WFS
Financial 2003- Owner Trust (the "Trust"). The Notes will be issued pursuant to
an indenture, dated as of , 200 (the "Indenture"), between the Trust
and , as trustee (the "Indenture Trustee").
Simultaneously with the issuance of the Notes, WFSRC3 will cause the Trust
to issue certificates (the "Certificates" and, together with the Notes, the
"Securities") to WFSRC3. The Trust will be created and the Certificates will be
issued pursuant to an amended and restated trust agreement, dated as of ,
200 (the "Trust Agreement"), between WFSRC3 and , , 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 the new and pre-owned automobiles and light-duty trucks financed
thereby (the "Financed Vehicles"), (ii) certain monies received under the
Contracts after , 200 , (iii) security interests in the Financed
Vehicles, (iv) amounts on deposit in certain accounts, and (v) certain rights
under a sale and servicing agreement, dated as of , 200 (the "Sale
and Servicing Agreement"), among the Trust, WFSRC3, as seller (the "Seller"),
and WFS Financial Inc ("WFS"), as master servicer (the "Master Servicer").
Pursuant to the Indenture, the Trust property will be held by the Indenture
Trustee on behalf of the holders of the Notes. Pursuant to an administration
agreement, dated as of , 200 (the "Administration Agreement"), among
WFSRC3, 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 and the Administration 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 WFSRC3 has furnished to the Underwriters.
1. Registration Statement and Prospectuses. WFSRC3 meets the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"),
and has prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333- ),
including a base prospectus and a form of preliminary prospectus supplement
relating to the offering of auto receivable backed notes, issued in series from
time to time in accordance with Rule 415 under the Act. Such registration
statement has
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been declared effective by the Commission. Such registration statement, as
amended at the Effective Date (as hereinafter defined), including the exhibits
thereto and any material incorporated by reference therein pursuant to the Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is
referred to as the "Registration Statement". As used herein, the term
"Incorporated Documents", when used with respect to the Registration Statement
as of any date, means the documents incorporated or deemed to be incorporated by
reference in the Registration Statement as of such date pursuant to Item 12 of
Form S-3 or pursuant to a no-action letter of the Commission. If any
post-effective amendment has been filed with respect to the Registration
Statement prior to the execution and delivery of this Agreement, the most recent
such amendment has been declared effective by the Commission. The Seller will
file a final base prospectus and a final prospectus supplement relating to the
Notes in accordance with Rules 415 and 424(b) under the Act. The Seller has
included in the Registration Statement all information required by the Act and
the rules thereunder to be included in a prospectus with respect to the Notes
and the offering thereof. As filed, the final prospectus and the final
prospectus supplement shall include all required information with respect to the
Notes and the offering thereof, and shall be in all substantive respects in the
form furnished to the Representative prior to the Execution Time (as hereinafter
defined) or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest preliminary base prospectus and preliminary prospectus
supplement, if any, that have been previously furnished to the Representative)
as the Seller has advised the Representative, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act. "Rule 415",
"Rule 424" and "Regulation S-K" refer to such rules or regulations under the
Act.
As used herein, "Execution Time" means the date and time this Agreement is
executed and delivered to the parties hereto and "Effective Date" means the date
and time as of which the Registration Statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission. "Base
Prospectus" means the prospectus dated , 200 . "Preliminary
Prospectus" means the preliminary prospectus supplement to the Base Prospectus
dated , 200 , together with such Base Prospectus, that describes the
Notes and the offering thereof and is used prior to the filing of the Prospectus
with the Commission. "Prospectus" means the supplement to the Base Prospectus
dated , 200 that is first filed with the Commission after the
Execution Time, together with such Base Prospectus, as amended at the time of
such filing, pursuant to Rule 424(b); provided, however, that a supplement to
the Base Prospectus shall be deemed to have supplemented the Base Prospectus
only with respect to the offering of the series of securities to which it
relates. "Prospectus Supplement" means the supplement to the Base Prospectus
included in the Prospectus.
To the extent that WFSRC3 has prepared (i) Collateral Term Sheets (as
defined in Section 8) that the Underwriters, WFSRC3 or WFS have provided to a
prospective investor, WFSRC3 has filed with the Commission such Collateral Term
Sheets as an exhibit to a report on Form 8-K within two business days of its
receipt thereof or (ii) Structural Term Sheets or Computational Materials (each
as defined in Section 8), WFSRC3 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
3
in any event, not later than the date on which the Prospectus is made available
to the Representative in final form.
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement, Base Prospectus, Preliminary Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are or are deemed to be incorporated by reference in the Registration Statement,
Preliminary Prospectus or the Prospectus, as the case may be. All references in
this Agreement to the terms "amend", "amendments" or "supplements" with respect
to the Registration Statement, Base Prospectus, Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the filing of any documents under
the Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, Preliminary Prospectus or the Prospectus, as
the case may be, which are or are deemed to be incorporated by reference
therein.
2. Agreements to Sell and Purchase. WFSRC3 agrees to sell to the
Underwriters and, upon the basis of the representations, warranties and
agreements of WFSRC3 and WFS herein contained and subject to all the terms and
conditions of this Agreement, the Underwriters agree, severally, to purchase
from WFSRC3, 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, (iv) Class A-4 Notes, % of the principal amount thereof, (v)
Class B Notes, % of the principal amount thereof, (vi) Class C Notes,
% of the principal amount thereof and (vii) Class D Notes, % of
the principal amount thereof.
3. Terms of Public Offering. WFSRC3 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 , on or about 10:00 A.M., New York City time,
on , 200 (such time and date are referred to herein as the "Closing
Date"). Payment for the Notes shall be made at the offices of WFSRC3, 000 Xxxx
Xxxx Xxxxxxx Xxxx #000, Xxx Xxxxx, Xxxxxx 00000. The Closing Date and the
location of the delivery of and payment for the Notes may be varied by agreement
between the Representative and WFSRC3.
Each class of Notes will be initially represented by one or more
certificates in definitive form registered in the name of Cede & Co., the
nominee of The Depository Trust Company ("DTC") (the "DTC Certificates"). The
certificates evidencing the DTC Certificates shall be made available to the
Representative for inspection not later than 10:00 A.M., New York City time, on
the business day immediately preceding the Closing Date. The Notes shall be
delivered to the Underwriters on the Closing Date for their respective
securities accounts against payment of the purchase price therefor by either (i)
certified or official bank check or checks payable in
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New York Clearing House (next day) funds to the order of WFSRC3 or (ii) wire
transfer (same day funds), as the Representative and WFSRC3 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 , 200 .
5. Agreements of WFSRC3. WFSRC3 agrees with each of the Underwriters:
(a) To transmit the Prospectus to the Commission pursuant to Rule
424(b) by a means reasonably calculated to result in the timely filing of
such Prospectus with the Commission pursuant to Rule 424(b).
(b) To advise the Representative promptly and, if requested by the
Representative, to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, (ii) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of any of the
Notes for offering or sale in any jurisdiction, or the initiation of any
proceeding for either such purpose and (iv) of the happening of any event
during the period referred to in paragraph (e) below which, in the
judgment of WFSRC3, 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, WFSRC3
will make every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(c) To furnish to the Representative two photocopies of the manually
executed Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits filed therewith or
incorporated by reference therein and all documents and information
incorporated or deemed to be incorporated by reference therein, and to
furnish to the Underwriters such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as the Underwriters may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object and to prepare and file with the
Commission promptly upon the request of the Representative, any amendment
to the Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of any of the
Notes by the Underwriters and to use its best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement became effective, and
from time to time thereafter for such period as in the opinion of counsel
to the Underwriters a
5
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 WFSRC3 or counsel to
the Underwriters it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with any law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not, in
the light of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with law, and to furnish to the
Underwriters and to such dealers as the Representative shall specify, such
number of copies thereof as the Underwriters or such dealers may
reasonably request.
(g) Prior to any public offering of the Notes, to cooperate with the
Underwriters and counsel to the Underwriters in connection with the
registration or qualification of the Notes for offer and sale by the
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may reasonably request, to continue such
qualification in effect so long as reasonably required for distribution of
the Notes and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided that WFSRC3 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 WFSRC3 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 WFSRC3 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
WFSRC3, the Trust or WFS as the Underwriters may reasonably request.
6
(j) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by WFSRC3 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"),
Standard & Poor's Rating Services, a Division of The XxXxxx-Xxxx
Companies, Inc. ("Standard & Poor's") or Fitch Ratings ("Fitch"), is
conditional upon the furnishing of documents or the taking of any other
actions by WFSRC3 or an affiliate thereof, WFSRC3 shall furnish such
documents and take such other actions.
(k) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Representative
pursuant to any of clauses (ii) through (vii) of the second paragraph of
Section 10) or if for any reason WFSRC3 shall be unable to perform its
obligations hereunder, to reimburse the Underwriters for all of their
out-of-pocket expenses (including the fees and expenses of counsel to the
Underwriters) reasonably incurred by the Underwriters in connection
herewith.
(l) To apply the net proceeds from the offering in the manner set
forth under the caption "Use of Proceeds" in the Prospectus.
(m) WFSRC3, 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 WFSRC3 and WFS.
(a) WFSRC3 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 WFSRC3 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 WFSRC3, threatened by the Commission.
At the effective date of the Registration Statement and any post-effective
amendments thereto, at the date of this Agreement and the Closing Date,
the Registration Statement and any post-effective amendments or
supplements thereto, each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, complied or will comply in all respects
with the requirements of the Act and the Rules and Regulations, and did
not and will not include any untrue statement of a material fact or omit
to state any material fact required to be
7
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 WFSRC3 in writing by the
Underwriters through the Representative expressly for use therein or to
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Indenture Trustee on
Form T-1 (the "Form T-1") under the Trust Indenture Act of 1939, as
amended (the "1939 Act").
(iii) Each Preliminary Prospectus, the Prospectus and any amendment
or supplement thereto, complied or will comply when so filed with the
requirements of the Act and the Rules and Regulations, and the Prospectus
delivered to the Underwriters for use in connection with the offering of
the Notes was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system, except to the extent permitted by
Regulation S-T.
(iv) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act
and the Exchange Act Regulations, and, when read together with the other
information in the Prospectus, at the date of this Agreement and at the
Closing Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(v) The Securities conform to the description thereof contained in
the Prospectus and have been duly and validly authorized and (i) when the
Certificates have been executed, authenticated and delivered in accordance
with the Trust Agreement, they will be entitled to the benefits and
security afforded by the Trust Agreement and will constitute legal, valid
and binding obligations of the Trust enforceable in accordance with their
terms and the terms of the Trust Agreement and (ii) when the Notes have
been executed, authenticated and delivered in accordance with the
Indenture and delivered to and paid for by the Underwriters as provided
herein, they will be entitled to the benefits and security afforded by the
Indenture and will constitute legal, valid and binding obligations of the
Trust enforceable in accordance with their terms and the terms of the
Indenture, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
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(vi) The execution and delivery by WFSRC3 of this Agreement and the
Basic Documents to which it is a party are within the corporate power of
WFSRC3 and have been duly authorized by all necessary corporate action on
the part of WFSRC3 and neither the issuance and sale of the Notes to the
Underwriters, nor the execution and delivery by WFSRC3 of this Agreement
and the Basic Documents to which it is a party, nor the consummation by
WFSRC3 of the transactions herein and therein contemplated, nor compliance
by WFSRC3 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 WFSRC3 or any
indenture, mortgage, deed of trust or other agreement or instrument to
which WFSRC3 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
WFSRC3 was or is now a party or by which it is bound.
(vii) WFSRC3 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; WFSRC3
holds all material licenses, certificates and permits from all
governmental authorities necessary for the conduct of its business as
described in the Prospectus; and WFSRC3 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
WFSRC3 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, 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,
except as rights to indemnity and contribution hereunder may be limited by
applicable law; each of this Agreement and each Basic Document conforms to
the description thereof contained in the Prospectus; and the Indenture has
been duly qualified under the 1939 Act.
(ix) Neither the Trust nor WFSRC3 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, WFSRC3 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; and WFSRC3'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.
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(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.
(xii) The representations and warranties made by WFSRC3 in the Sale
and Servicing Agreement and in the Officers' Certificates of WFSRC3
delivered pursuant to the Basic Documents will be true and correct at the
Closing Date.
(xiii) Since , 200 , 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
WFSRC3, or the earnings, affairs or business prospects of WFSRC3, whether
or not arising in the ordinary course of business, except as set forth in
or contemplated in the Prospectus.
(b) WFS represents and warrants to, and agrees with, each of the
Underwriters that the representations and warranties of WFSRC3 set forth in
Section 6(a) are true and correct and further represents and warrants to, and
agrees with, each of the Underwriters that:
(i) WFS has been duly incorporated and is validly existing in good
standing under the laws of the State of California and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction where the character of its properties or the
nature of its activities makes such qualification necessary, except such
jurisdictions, if any, in which the failure to be so qualified will not
have a material adverse effect on either the business or properties of
WFS; WFS holds all material licenses, certificates and permits from all
governmental authorities necessary for the conduct of its business as
described in the Prospectus; and WFS has the corporate power and authority
to own its properties and conduct its business as described in the
Prospectus.
(ii) The execution and delivery by WFS of this Agreement and the
Basic Documents to which it is a party are within the corporate power of
WFS and have been duly authorized by all necessary action on the part of
WFS; and neither the execution and delivery by WFS of this Agreement and
the Basic Documents to which it is a party, nor the consummation by WFS of
the transactions herein and therein contemplated, nor compliance by WFS
with the provisions hereof and thereof, will conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or bylaws of WFS or any indenture,
mortgage, deed of trust or other agreement or instrument to which WFS is
now a party or by which it is bound, or any order of any court or
government agency or authority entered in any proceeding to which WFS was
or is now a party or by which it is bound.
(iii) Each of this Agreement and each Basic Document to which WFS is
a party has been duly authorized, executed and delivered by WFS and
constitutes a valid and binding agreement of WFS, enforceable against WFS
in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, subject to general principles of equity
10
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and, in the case of this Agreement, except as rights to indemnity
and contribution hereunder may be limited by applicable law.
(iv) The Contracts transferred to WFSRC3 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.
(v) WFS has the power and authority to own its properties, to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under each of the Basic Documents to which it is a
party.
(vi) The representations and warranties made by WFS in the Sale and
Servicing Agreement and in the Officers' Certificates of WFS delivered
pursuant to the Basic Documents will be true and correct at the Closing
Date.
(vii) Since , 200 , 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. WFSRC3 will pay all costs, expenses, fees and
taxes incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, filing and distribution under the Act
of the Registration Statement as first filed, all Computational Materials, each
Structural Term Sheet, each Collateral Term Sheet, each Preliminary Prospectus,
the Prospectus and all amendments and supplements to any of them (including the
delivery to the Underwriters of copies thereof and, in the case of the
Registration Statement and the Prospectus, copies of all financial statements,
exhibits and documents incorporated by reference), (ii) the preparation of this
Agreement, (iii) the preparation and issuance of the Securities and delivery of
the Notes to the Underwriters, (iv) the fees and disbursements of WFSRC3's
counsel and accountants, (v) the registration or qualification of the Notes for
offer and sale under the securities or Blue Sky laws of the jurisdictions
referenced in Section 5(g) (including in each case the filing fees and the fees
and disbursements of counsel to the Underwriters relating to such registration
or qualification and in connection with the preparation of any Blue Sky or legal
investment survey relating thereto), (vi) the printing or copying and delivery
to the Underwriters of the Basic Documents, this Agreement, any dealer
agreement, Preliminary and Supplemental Blue Sky Memoranda, legal investment
memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the Notes
(including in each case the disbursements of counsel to the Underwriters
relating to such reproducing and delivery) and (vii) any fees paid to Xxxxx'x,
Standard & Poor's and Fitch in connection with the rating of the Notes.
8. Indemnification and Contribution.
(a) WFSRC3 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,
11
joint or several, to which such Underwriter may become subject under the Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or judgments (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, each Preliminary Prospectus (if
any), each Collateral Term Sheet (if any), each Structural Term Sheet (if any),
all Computational Materials (if any), the Prospectus or any amendment or
supplement thereto or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and WFSRC3 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 WFSRC3 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 WFSRC3 by the Underwriters through the Representative
specifically for use therein, it being understood that the only such information
furnished by the Underwriters consists of the following information in the
Prospectus Supplement under the caption "Underwriting", the (i) concession and
reallowance figures appearing in the second table and (ii) information regarding
discretionary sales contained in the second, third and sixth paragraphs.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter of
Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the Public Securities
Association (which letter, and the Commission's response thereto, were publicly
available February 17, 1995). The term "Collateral Term Sheet" as used herein
includes any subsequent Collateral Term Sheet that reflects a substantive change
in the information presented. The term "Computational Materials" has the meaning
assigned to it in the May 17, 1994 letter of Xxxxx & Xxxx on behalf of Xxxxxx,
Xxxxxxx & Co., Inc. (which letter, and the Commission's response thereto, were
publicly available May 20, 1994).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless WFSRC3 and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFSRC3 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 WFSRC3 or WFS by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by WFSRC3 or WFS in connection with investigating or
defending any such loss, claim, damage, liability, judgment or action as such
expenses are incurred, it being understood that the only such information
furnished by the Underwriters consists of the following information in the
Prospectus Supplement under the caption "Underwriting", the (i) concession and
reallowance figures
12
appearing in the second table and (ii) information regarding discretionary sales
contained in the second, third and sixth paragraphs.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
Section 8(a) or 8(b), notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve such indemnifying party from any liability that it may have to any
indemnified party hereunder, except to the extent that such omission resulted in
the incurrence of additional liabilities or the loss of substantial defenses. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof and approval by the indemnified
party of the counsel appointed by the indemnifying party, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. The
indemnifying party shall not be liable for any settlement of any such action
effected without the written consent of the indemnifying party but, if settled
with the written consent of the indemnifying party, the indemnifying party
agrees that each person so consenting agrees to indemnify and hold harmless each
such indemnified party from and against any loss or liability by reason of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such
proceeding and (ii) does not include a statement as to, or admission of, fault,
culpability or a failure to act by or on behalf of any such indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or 8(b),
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities
and judgments referred to in Section 8(a) or 8(b): (i) in such proportion as is
appropriate to reflect the relative benefits received by WFSRC3 and WFS on the
one hand and the Underwriters on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
WFSRC3 and WFS on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by WFSRC3 and WFS on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes (before deducting
expenses) received by WFSRC3 and WFS and the total underwriting discounts and
commissions received by the Underwriters bear to the total price to the public
of the Notes,
13
in each case as set forth in the cover page of the Prospectus Supplement. The
relative fault of WFSRC3, WFS and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by WFSRC3, WFS or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
WFSRC3, WFS and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, no Underwriter (except as may be
provided in the agreement among underwriters relating to the offering of the
Notes) shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Notes purchased by such Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of WFSRC3 and WFS under this Section shall be in
addition to any liability any of WFSRC3 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 WFSRC3 or WFS, to each officer of
WFSRC3 or WFS who has signed the Registration Statement and to each person, if
any, who controls WFSRC3 or WFS within the meaning of the Act.
9. Conditions. The several obligations of the Underwriters to purchase the
Notes under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of each of WFSRC3 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.
14
(c) Since , 200 , 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 WFSRC3 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 WFSRC3, confirming
the matters set forth in subsections (a), (b) and (c) of this Section and
(ii) a certificate dated the Closing Date, signed by the President or a
Vice President of WFS, confirming the matters set forth in subsections (a)
and (c) of this Section. Such officers may in each certificate rely upon
the best of their information and belief as to proceedings contemplated.
(d) The Representative shall have received the opinion of Xxxxxxxx,
Xxxxxxxxxx & Xxxxx LLP, counsel for WFSRC3, dated the Closing Date and
satisfactory to counsel to the Underwriters, to the effect that:
(i) WFSRC3 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 WFSRC3.
(ii) The statements in each of the Base Prospectus and the
Prospectus Supplement set forth under the captions "Summary of
Terms", "The Notes", "The Contracts Pool" and "Certain Information
Regarding the Securities", insofar as such statements purport to
summarize certain provisions of the Notes or the Basic Documents,
provide a fair summary of such provisions, and the statements in the
Base Prospectus under the captions "Summary of Terms--Tax Status"
and "--ERISA Considerations", "Certain Legal Aspects of the
Contracts", "Federal and California Income Tax Consequences" and
"ERISA Considerations" and in the Prospectus Supplement under the
captions "Summary of Terms--Tax Status" and "--ERISA Considerations"
and "ERISA Considerations", to the extent such statements constitute
matters of law or legal conclusions with respect thereto, 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,
15
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) This Agreement has been duly authorized, executed and
delivered by WFSRC3.
(v) Each Basic Document to which WFSRC3 is a party has been
duly authorized, executed and delivered by WFSRC3 and, assuming due
authorization, execution and delivery by the parties thereto, each
such Basic Document constitutes a legal, valid and binding agreement
of WFSRC3, enforceable against WFSRC3 in accordance with its terms,
except as enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization or other laws, provisions or
principles now or hereafter in effect affecting the enforcement of
creditors' rights generally, except that no opinion need be
expressed as to the availability of remedies of specific
performance, injunction or other forms of equitable relief, all of
which may be subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before which any
proceeding therefor may be brought.
(vi) Assuming the due authorization, execution and delivery of
each Basic Document to which the Trust is a party by the Owner
Trustee, on behalf of the Trust, and by each other party thereto
(other than WFSRC3 and WFS) each such Basic Document constitutes the
valid, legal and binding obligation of the Trust enforceable against
the Trust in accordance with its terms, except as enforceability
thereof may be subject to or limited by bankruptcy, insolvency,
reorganization or other laws now or hereafter in effect affecting
the enforcement of creditors' rights generally, and except that no
opinion need be expressed as to the availability of remedies of
specific performance, injunction or other forms of equitable relief,
all of which may be subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before which any
proceeding therefor may be brought.
(vii) The Certificates, when executed, authenticated and
delivered in accordance with the Trust Agreement, will be validly
issued and outstanding and entitled to the benefits of the Trust
Agreement.
(viii) The Notes, when executed and authenticated in
accordance with the Indenture and delivered and paid for pursuant to
this Agreement, will be entitled to the benefits of the Indenture
and will constitute legal, valid and binding obligations of the
Trust, entitled to the benefits of the Indenture, and enforceable in
accordance with their terms and the terms of the Indenture, subject,
with respect to each of the Indenture and the Notes, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, and except that no
opinion need be expressed as to the availability of remedies of
specific performance, injunction or other forms of equitable relief,
all of which may be subject to certain tests of equity jurisdiction,
16
equitable defenses and the discretion of the court before which any
proceeding therefor may be brought.
(ix) As to each security interest in a Financed Vehicle
created by a Contract, no filing or other action is necessary to
perfect or continue the perfected status of such security interest
as against creditors of or transferees from the obligor under such
Contract, so long as such Financed Vehicle is not removed from the
State of California for a period longer than four months, or before
the end of such four-month period, WFS perfects such security
interest under applicable law; provided that (A) no opinion need be
rendered as to a security interest in a Financed Vehicle as to which
neither a properly endorsed certificate of title naming WFS or an
affiliate or predecessor of WFS as legal owner nor an application
for an original registration together with an application for
registration of WFS or an affiliate or predecessor of WFS as legal
owner, has been deposited with the California Department of Motor
Vehicles and (B) no opinion is given as to the enforceability of the
security interest in a Financed Vehicle as against a subsequent
owner of a Financed Vehicle or a holder or assignee of a certificate
of title relating to such Financed Vehicle through fraudulent or
negligent transfer of such certificate of title.
(x) The Sale and Servicing Agreement, together with the filing
referred to in this subsection, creates and perfects the ownership
interest of the Trust in the Contracts which is a valid first
priority ownership interest; 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 Collateral.
Such security interest, as it relates to the Financed Vehicles
securing the Contracts and the proceeds of the foregoing has been
perfected by the filing of financing statements with the Secretary
of State of the State of Delaware, pursuant to the Uniform
Commercial Code as in effect in Delaware. No filing or other action,
other than the filing of the financing statements referred to above,
is necessary to perfect and maintain the interest or the security
interest of the Indenture Trustee in the Contracts, the security
interests in the Financed Vehicles securing the Contracts and the
proceeds of each of the foregoing against third parties.
(xii) The Indenture Trustee will have, upon assignment of the
Trust's rights under the financing statement from WFSRC3, the
Trust's filing of such financing statement in favor of the Indenture
Trustee and execution and delivery of a depository account control
agreement, dated as of February 1, 2003, among WFSRC3, the Trust,
the Bank and the Indenture Trustee, regarding the Indenture
Trustee's security interest in each of the Collection Account, the
Note Distribution Account and the Spread Account, a first priority
perfected security
17
interest in all of the Contracts and in the proceeds of the
Contracts and other Net Collections which are held in the Collection
Account, the Note Distribution Account and the Spread Account.
(xiii) WFSRC3'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.
(xiv) The Trust's assignment of the Contracts to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority
perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(xv) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Commission pursuant
to Rule 424(b) and to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated.
(xvi) No order, consent or other authorization or approval of
any court, public board or governmental body is legally required for
the performance by WFSRC3 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.
(xvii) Neither the consummation of any of the transactions
contemplated by this Agreement and each of the Basic Documents to
which WFSRC3 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 WFSRC3, or
the terms of (A) any indenture or other agreement or instrument
known to such counsel and to which WFSRC3 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 WFSRC3 or any of its subsidiaries,
of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over WFSRC3 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 WFSRC3.
(xviii) To the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened to which
either of the Trust or WFSRC3 is, or is threatened to be, a party or
of which the business or property of the Trust or WFSRC3 is, or is
threatened to be, the subject that is material to the
18
business or financial condition of the Trust or WFSRC3 and is not
disclosed in the Prospectus.
(xix) There is no contract or other document known to such
counsel of a character required to be described in the Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xx) Neither the Trust nor WFSRC3 is an "investment company"
and neither is "controlled" by an "investment company", as such
terms are defined in the 1940 Act.
(xxi) WFSRC3 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 WFSRC3 is in all
material respects complying therewith; and WFSRC3 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 WFSRC3.
(xxii) Except as to the financial statements and other
financial, numerical, statistical or quantitative data included or
incorporated by reference therein, as to which such counsel need not
express any opinion, such counsel (A) is of the opinion the
Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and other
financial, numerical, statistical or quantitative data included or
incorporated by reference therein and the Form T-1) comply as to
form in all material respects with the Act and the 1939 Act and (B)
believes that the Registration Statement (except for the financial
statements and other financial, numerical, statistical or
quantitative data included or incorporated by reference therein and
the Form T-1), at the time the Registration Statement became
effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus (except for the financial statements and other financial,
numerical, statistical or quantitative data included or incorporated
by reference therein) at the date hereof and at the Closing Date did
not and does not contain any untrue statement of a material fact and
did not and does not omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xxiii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the
financial statements, supporting schedules and other financial data
therein, as to which no opinion need be rendered), when they were
filed with the Commission, complied as to form in all material
respects with the applicable requirements of the Exchange Act and
the Exchange Act Regulations.
19
(xxiv) The Indenture has been duly qualified under the 1939
Act and the Trust Agreement is not required to be qualified under
the 1939 Act.
(e) The Representative shall have received the opinion of Xxx Xx
Xxxx, Esq., General Counsel of WFS, General Counsel of Western Financial
Bank (the "Bank") and General Counsel of WFS Financial Auto Loans 2, Inc.
("WFAL 2"), dated the Closing Date and satisfactory to counsel to the
Underwriters, to the effect that:
(i) WFS has been duly incorporated and is validly existing and
in good standing under the laws of the State of California, with
corporate power and authority to own its properties, to conduct its
business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and each of the Basic
Documents to which it is a party, and is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
location of its properties or the character of its operations makes
such qualification necessary, except such jurisdictions, if any, in
which the failure to be so qualified will not have a material
adverse effect on either the business or properties of WFS.
(ii) This Agreement has been duly authorized, executed and
delivered by WFS.
(iii) Each Basic Document to which WFS is a party has been
duly authorized, executed and delivered by WFS, and each such Basic
Document 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 need be expressed as to the
availability of remedies of specific performance, injunction or
other forms of equitable relief, all of which may be subject to
certain tests of equity jurisdiction, equitable defenses and the
discretion of the court before which any proceeding therefor may be
brought.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the performance by
WFS of its obligations under this Agreement and any of the Basic
Documents to which it is a party, except such as have been obtained.
(v) Neither the consummation of any of the transactions
contemplated by this Agreement and each of the Basic Documents to
which WFS is a party nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach of, or constitute a
default under, the articles of incorporation or bylaws of WFS, or
the terms of (A) any indenture or other agreement or instrument
known to such counsel to be applicable WFS or any of its
subsidiaries or (B) any judgment, order or decree known to such
counsel to be applicable to WFS or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
20
body or arbitrator having jurisdiction over WFS or any of its
subsidiaries, except, in the case of clauses (A) and (B), for
defaults, breaches or violations that do not, in the aggregate, have
an adverse material effect on WFS.
(vi) To the best knowledge of such counsel, there is no legal
or governmental proceeding pending or threatened to which WFS is, or
is threatened to be, a party or of which its business or property
is, or is threatened to be, the subject that would have a material
adverse effect on the ability of WFS to perform its obligations
under any of the Basic Documents to which it is a party.
(vii) WFS has obtained all material licenses, permits and
other governmental authorizations which are necessary to the conduct
of its business; such licenses, permits and other governmental
authorizations are in full force and effect, and WFS is in all
material respects complying therewith; and WFS is otherwise in
compliance with all laws, rules, regulations and statutes of any
jurisdiction to which it is subject, except where non-compliance
would not have a material adverse effect on WFS, or, in the case of
the Contracts, would not cause the Contracts to be unenforceable.
(viii) The Bank has been duly organized and is validly
existing and in good standing as a federal association pursuant to
the laws of the United States, with the authority within its charter
to own its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
reinvestment contract, dated as of , 200 (the
"Reinvestment Contract"), among the Bank, WFAL 2 and the Indenture
Trustee.
(ix) The Reinvestment Contract has been duly authorized,
executed and delivered by the Bank and constitutes a legal, valid
and binding instrument enforceable against the Bank in accordance
with its terms, except as enforceability thereof may be subject to
or limited by bankruptcy, insolvency, reorganization or other laws,
provisions or principles now or hereafter in effect affecting the
enforcement of creditors' rights generally or the rights of
creditors of savings banks the accounts of which are insured by the
Federal Deposit Insurance Corporation and except that no opinion
need be expressed as to the availability of remedies of specific
performance, injunction or other forms of equitable relief, all of
which may be subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before which any
proceeding therefor may be brought.
(x) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated by the Reinvestment Contract except
such as have been obtained under the Act and such as have been
obtained from the Office of Thrift Supervision.
(xi) Neither the consummation of any of the transactions
contemplated by the Reinvestment Contract, nor the fulfillment of
the terms thereof, will
21
conflict with, result in a breach of, or constitute a default under
the Charter or bylaws of the Bank or (A) the terms of any indenture
or other agreement or instrument known to such counsel to be
applicable to the Bank or any of its subsidiaries or (B) any
judgment, order or decree known to such counsel to be applicable to
the Bank or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Bank or any of its subsidiaries, except in the
case of clauses (A) and (B), for defaults, breaches or violations
that do not in the aggregate, have a material adverse effect on the
Bank.
(xii) The Bank is in compliance with all applicable state and
federal laws regarding its continued operation, including those
pertaining to the origination of the Contracts, other than those
laws the Bank's non-compliance with which would not materially
affect its ability to perform its obligations under the Reinvestment
Contract or, in the case of the origination of the Contracts, would
not cause the Contracts to be unenforceable.
(xiii) WFAL 2 has been duly incorporated and is validly
existing and in good standing under the laws of the State of
California, with corporate power and authority to own its
properties, to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the Reinvestment
Contract and the sale and assignment, dated as of , 200
(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 need be expressed as to the availability of remedies of
specific performance, injunction or other forms of equitable relief,
all of which may be subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before which any
proceeding therefor may be brought.
(xv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the performance by
WFAL 2 of its obligations under the WFAL 2 Agreements, except such
as have been obtained.
(xvi) Neither the consummation of any of the transactions
contemplated by the WFAL 2 Agreements nor the fulfillment of the
terms hereof or thereof will
22
conflict with, result in a breach of, or constitute a default under,
the articles of incorporation or bylaws of WFAL 2, or the terms of
(A) any indenture or other agreement or instrument known to such
counsel and to which WFAL 2 is a party or is bound or (B) any
judgment, order or decree known to such counsel to be applicable to
WFAL 2, of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over WFAL 2,
except, in the case of clauses (A) and (B), for defaults, breaches
or violations that do not, in the aggregate, have an adverse
material effect on WFAL 2.
(xvii) To the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened to which WFAL
2 is, or is threatened to be, a party or of which its business or
property is, or is threatened to be, the subject that would have a
material adverse effect on the ability of WFAL 2, to perform its
obligations under any of the WFAL 2 Agreements.
(xviii) WFAL 2 has obtained all material licenses, permits and
other governmental authorizations which are necessary to the conduct
of its business; such licenses, permits and other governmental
authorizations are in full force and effect, and is in all material
respects complying therewith; and WFAL 2 is otherwise in compliance
with all laws, rules, regulations and statutes of any jurisdiction
to which it is subject, except where non-compliance would not have a
material adverse effect on WFAL 2.
(f) The Representative shall have received the opinion addressed to
the Underwriters and to WFS from Xxxxxxxx, Xxxxxx & Finger, P.A., counsel
to the Owner Trustee, dated the Closing Date and satisfactory to counsel
to the Underwriters, to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a national banking association in good standing
under the federal laws of the United States.
(ii) The Owner Trustee has full corporate trustee power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Trust, under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and,
on behalf of the Trust, of the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Certificates and the
Notes and the performance by the Owner Trustee of its obligations
under the Trust Agreement, the Indenture, the Sale and Servicing
Agreement and the Administration Agreement have been duly authorized
by all necessary corporate action of the Owner Trustee and each has
been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement constitutes a valid and binding
agreement of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its
23
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 State of Delaware or United States
federal governmental authority having jurisdiction over the trust
power of the Owner Trustee, other than those consents, approvals or
authorizations as have been obtained and the filing of the
Certificate of Trust with the Secretary of State of the State of
Delaware.
(vi) The Notes have been duly authorized, executed and issued
by the Trust.
(vii) The Certificates have been duly authorized, executed and
issued by the Trust.
(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.
(g) The Representative shall have received an opinion addressed to
the Underwriters and to WFS, dated the Closing Date, of Xxxxxxxx, Xxxxxx &
Finger, P.A, special Delaware counsel to the Trust, satisfactory to
counsel to the Underwriters, to the effect that:
(i) The Trust has been duly formed and is validly existing as
a statutory trust pursuant to the laws of the State of Delaware, 12
Del. C. Section 3801, et seq.
(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 any
continuation statements with respect to the financing statements, no
other filing is required in the State of Delaware in order to make
effective the lien of the Indenture. Insofar
24
as the Delaware Uniform Commercial Code, 6 Del. C. Section 9-101 et
seq. (the "UCC"), applies (without regard to conflict of laws
principles) and, assuming that the security interests in that
portion of the Trust Estate that consists of general intangibles,
accounts or chattel paper, as defined under the UCC, have been duly
created and have attached, the Indenture Trustee has a perfected
security interest in such general intangibles, accounts or chattel
paper and, assuming that the UCC search accurately lists all the
financing statements filed naming the Trust as debtor and describing
any portion of the Trust Estate consisting of such general
intangibles, accounts or chattel paper, the security interest of the
Indenture Trustee will be prior to all other security interests of
creditors of the Trust perfected by filing.
(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.
(h) The Representative shall have received an opinion addressed to
the Underwriters and to WFS from White & Case LLP, counsel to the
Indenture Trustee, dated the Closing Date and satisfactory to counsel to
the Underwriters to the effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a banking corporation under the laws of the
State of New York.
(ii) The Indenture Trustee, at the time of its execution and
delivery of the Indenture, had full power and authority to execute
and deliver the Indenture and has full power and authority to
perform its obligations thereunder.
(iii) The Indenture has been duly and validly authorized,
executed and delivered by the Indenture Trustee and, assuming due
authorization, execution and delivery thereof by the Indenture
Trustee, constitutes the valid and binding obligation of the
Indenture Trustee enforceable against the Indenture Trustee in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or
affecting creditors' rights or by general principles of equity.
(iv) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened against
or affecting the Indenture Trustee before or by any court,
arbitrator, administrative agency or other governmental authority
which, if adversely decided, would materially and adversely affect
the ability of the Indenture Trustee to carry out the transactions
contemplated in the Indenture.
25
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the United States or any State thereof was or is required for the
execution, delivery or performance by the Indenture Trustee of the
Indenture.
(i) 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 WFSRC3 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.
(j) 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 WFSRC3, substantially in the form
heretofore approved by the Representative.
(k) At the Closing Date, Xxxxx'x, Standard & Poor's and Fitch shall
have rated the (i) Class A-1 Notes at least "Prime-1", "A-1+" and "F1+",
respectively, (ii) Class A-2 Notes, Class A-3 Notes and Class A-4 Notes
"Aaa", "AAA" and "AAA", respectively, (iii) Class B Notes "Aa2", "AA" and
"AA", respectively, (iv) Class C Notes "A2", "A" and "A", respectively,
and (v) Class D Notes "Baa2", "BBB" and "BBB", 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 WFSRC3 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
WFSRC3's securities by either Xxxxx'x, Standard & Poor's or Fitch.
(l) Counsel to WFS or WFSRC3 shall provide reliance letters to the
Representative relating to each legal opinion relating to the transaction
contemplated hereby rendered by such counsel to any of the Indenture
Trustee, the Owner Trustee, Xxxxx'x, Standard & Poor's or Fitch.
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 WFSRC3 to the Representative.
This Agreement may be terminated at any time prior to the Closing Date by
the Representative by written notice to WFSRC3 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 WFSRC3 or WFS or the earnings, affairs or
business prospects of WFSRC3 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
26
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 WFSRC3 or
WFS, (v) a material disruption in securities settlement, payment or clearance
services in the United States, (vi) declaration of a banking moratorium by
either federal or New York State authorities or (vii) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in the reasonable opinion 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 WFSRC3 or WFS, to Xxx Xx Xxxx, Esq. at his office at
00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000 or (ii) if to any Underwriter, through the
Representative at , or in any case to such other address as the person
to be notified may have requested in writing; provided, however, that any notice
to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed
and confirmed to such Underwriter. Any such notice will take effect at the time
of receipt.
The respective indemnities, contribution agreements, representations,
warranties and other statements of WFS, WFSRC3, 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 WFSRC3, its officers or directors or any controlling person
of WFSRC3 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 WFSRC3 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 WFSRC3 with respect to clauses
(ii) through (vii) of the second paragraph of Section 10), WFSRC3 and WFS hereby
agree to reimburse the Underwriters for all of their out-of-pocket expenses
(including the fees and disbursements of counsel to the Underwriters) reasonably
incurred by the Underwriters.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon WFSRC3, 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
27
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.
28
If the foregoing is in accordance with your understanding of the agreement
among WFSRC3, WFS and the Underwriters, kindly sign and return to us the
enclosed duplicate hereof, whereupon it will become a binding agreement among
WFSRC3, WFS and the several Underwriters in accordance with its terms.
Very truly yours,
WFS RECEIVABLES CORPORATION 3
By: ___________________________________
Name:
Title:
WFS FINANCIAL INC
By: ___________________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
as Representative of the several
Underwriters named on Schedule I hereto
By: ___________________________________
Name:
Title:
Underwriting Agreement
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes of Class A-3 Notes Class A-4 Notes
------------------- ------------------- ------------------ -------------------
Total
============ ============ ============ ============
Principal Amount of Principal Amount Principal Amount of
Underwriter Class B Notes of Class C Notes Class D Notes
------------------- ---------------- -------------------
Total
=========== =========== ===========
