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EXHIBIT 1.1
WFS FINANCIAL 2000- OWNER TRUST
$__________
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-1
$__________
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-2
$__________
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-3
$__________
___% AUTO RECEIVABLE BACKED NOTES, CLASS A-4
WFS RECEIVABLES CORPORATION 2,
as Seller,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
----------------------
_____________, 2000
Deutsche Bank Securities Inc
as Representative of the several Underwriters
31 West 52nd Street
17th Floor
New York, New York 10019
Dear Sirs:
WFS Receivables Corporation 2, a California corporation ("WFSRC2", the
"Seller"), 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 hereof,
$__________ 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") and $__________ aggregate principal amount of ___% Auto
Receivable
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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, WFSRC2 will cause the
Trust to issue Auto Receivable Backed Certificates (the "Certificates", and
together with the Notes, the "Securities") to WFSRC2. The Notes will be issued
pursuant to an indenture dated as of August 1, 2000 (the "Indenture"), between
the WFS Financial 2000- Owner Trust (the "Trust") and Bankers Trust Company, as
trustee (the "Indenture Trustee"). The Trust will be created and the
Certificates will be issued pursuant to a trust agreement, dated August __,
2000, as amended and restated as of August __, 2000 (the "Trust Agreement"),
among WFSRC2, Financial Security and Chase Manhattan Bank USA, N.A., as Owner
Trustee. Each Note will represent an obligation of, and Certificate will
evidence a fractional undivided interest in, the Trust.
The assets of the Trust will include, among other things, (i) a pool of
retail installment sales contracts and installment loans (the "Contracts")
secured by new and used automobiles and light-duty trucks financed thereby (the
"Financed Vehicles"), (ii) certain monies due under the Contracts on and after
August 1, 2000, (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 August 1, 2000 (the "Sale and
Servicing Agreement"), among the Trust, WFSRC2 and WFS Financial Inc ("WFS"), as
Master Servicer. Pursuant to the Indenture, the Trust property will be held by
the Indenture Trustee on behalf of the holders of the Notes. Pursuant to the
administration agreement, dated as of August 1, 2000 (the "Administration
Agreement"), among WFSRC2, WFS, as administrator (in such capacity, the
"Administrator"), the Trust and the Indenture Trustee, the Administrator will
perform certain administrative obligations under the Indenture. 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 hereof) which WFSRC2 has furnished to the
Underwriters.
1. Registration Statement and Prospectuses. WFSRC2 meets the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"),
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 preliminary base prospectus and two preliminary prospectus
supplements relating to the offering of auto receivable backed notes, issued in
series from time to time in accordance with Rule 415 under the Act. Such
registration statement has been declared effective by the Commission. If any
post-effective amendment has been filed with respect thereto, prior to the
execution and delivery of this Agreement, the most recent such amendment has
been declared effective by the Commission. The Seller will file a final base
prospectus and a final prospectus supplement relating to the Notes in accordance
with Rules 415 and 424(b)(2) or (5). The Seller has included in such
registration statement, as amended at the Effective Date (as hereinafter
defined), all information required by the Act and the rules thereunder to be
included in the prospectus with respect to the Notes and the offering thereof.
As filed, the final prospectus supplement shall include all required
information, with respect to the Notes and the offering thereof and, be in all
substantive respects in the form furnished to the
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Representative prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest preliminary base prospectus
and preliminary prospectus supplement, if any, that have been previously been
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 Execution Time, meets the requirements set forth in Rule
415(a)(1)(x). "Rule 415", "Rule 424" and "Regulation S-K" refer to such rules or
regulations under the Act.
As used herein, "Execution Time" means the date and time this Agreement
is executed and delivered to the parties hereto. "Effective Date" means the date
and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission and such
registration statement, as amended at the Effective Date including the exhibits
thereto and any material incorporated by reference therein pursuant to the Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is
referred to as the "Registration Statement". "Base Prospectus" means the base
prospectus included in the Registration Statement. "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" shall mean 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 WFSRC2 has prepared (i) Collateral Term Sheets (as
defined in Section 8) that the Underwriters have provided to a prospective
investor, WFSRC2 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), WFSRC2
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 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 of 1934, as amended after the Effective Date of the
Registration Statement or the issue date of Base Prospectus, Preliminary
Prospectus or the Prospectus, as the case may be, which are or are deemed to be
incorporated by reference therein.
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2. Agreements to Sell and Purchase. WFSRC2 agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of WFSRC2 and WFS herein contained and subject to all the terms and
conditions of this Agreement, the Underwriters agree to purchase from WFSRC2, on
the Closing Date referred to in Section 4 hereof, the Notes at a purchase price
of, in the case of (i) the Class A-1 Notes, ___% of the principal amount
thereof, (ii) the Class A-2 Notes, ___% of the principal amount thereof, (iii)
the Class A-3 Notes, ___% of the principal amount thereof and (iv) the Class A-4
Notes, ___% of the principal amount thereof.
3. Terms of Public Offering. WFSRC2 is advised by the Representative that
the Underwriters propose (i) to make a public offering of the Notes as soon
after the execution of this Agreement as in the judgment of the Representative
is advisable and (ii) initially to offer each class of Notes upon the terms set
forth in the Prospectus.
4. Delivery and Payment. Delivery of the Notes shall be made at the
office of the Representative at Deutsche Bank Securities Inc , 31 West 52nd
Street 17th Floor, New York, New York 10019 on or about 10:00 A.M., New York
City time, on August __, 2000 (such time and date are referred to herein as the
"Closing Date"). Payment for the Notes shall be made at the offices of WFS
Financial Inc, 23 Pasteur, Irvine, California 92618. The Closing Date and the
location of the delivery of and payment for the Notes may be varied by agreement
between the Representative and WFSRC2.
Each class of Notes will be initially represented by one or more
certificates in definitive form registered in the name of Cede & Co., the
nominee of The Depository Trust Company ("DTC") (the "DTC Certificates"). The
certificates evidencing the DTC Certificates shall be made available to the
Representative for inspection not later than 10:00 A.M., New York City time, on
the business day immediately preceding the Closing Date. The Notes shall be
delivered to the Underwriters on the Closing Date for their respective accounts
against payment of the purchase price therefor by either (i) certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the order of WFSRC2 or (ii) wire transfer (same day funds), as the
Representative and WFSRC2 shall agree.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than _____________, 2000.
5. Agreements of WFSRC2. WFSRC2 agrees with each of the Underwriters:
(a) To transmit the Prospectus to the Commission pursuant to Rule
424(b) by a means reasonably calculated to result in the timely filing of
such Prospectus with the Commission pursuant to Rule 424(b).
(b) To advise the Representative promptly and, if requested by the
Representative, to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, (ii) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
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Registration Statement or of the suspension of qualification of any of
the Notes for offering or sale in any jurisdiction, or the initiation of
any proceeding for either such purpose, and (iv) of the happening of any
event during the period referred to in paragraph (e) below which, in the
judgment of WFSRC2, makes the Registration Statement or the Prospectus
contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
WFSRC2 will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) To furnish to the Representative two signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to the
Underwriters such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits, as
the Underwriters may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object and to prepare and file with the
Commission promptly upon the request of the Representative, any amendment
to the Registration Statement or supplement to the Prospectus which may
be necessary or advisable in connection with the distribution of any of
the Notes by the Underwriters, and to use its best efforts to cause the
same to become promptly effective.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel to the Underwriters a prospectus is required by law to be
delivered in connection with sales 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) hereof any
event shall occur as a result of which, in the opinion of either WFSRC2
or counsel to the Underwriters it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus
so that the statements in the Prospectus, as so amended or supplemented,
will not, in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law, and to
furnish to the Underwriters and to such dealers as the Representative
shall specify, such number of copies thereof as the Underwriters or such
dealers may reasonably request.
(g) Prior to any public offering of the Notes, to cooperate with
the Underwriters and counsel to the Underwriters in connection with the
registration or
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qualification of the Notes for offer and sale by the Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as
the Underwriters may reasonably request, to continue such qualification
in effect so long as reasonably required for distribution of the Notes
and to file such consents to service of process or other documents as may
be necessary in order to effect such registration or qualification;
provided that WFSRC2 shall not be required to register or qualify as a
foreign corporation or to take any action which would subject it to
service of process in suits, other than as to matters and transactions
relating to the offer and sale of the Notes, in any jurisdiction where
WFSRC2 it is not now so subject.
(h) As soon as practicable, but not later than 16 months after the
"effective date" of the Registration Statement, to cause the Trust to
make generally available to holders of the Notes an earnings statement of
the Trust covering a 12 month period beginning not later than the first
day of the Trust's fiscal quarter next following the "effective date" of
the Registration Statement. Such statement shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 of the Commission.
(i) So long as any of the Notes remain outstanding, promptly to
furnish to the Underwriters (i) the annual statements of compliance,
annual independent certified public accountants' reports and annual
opinions of counsel furnished to the Indenture Trustee or the Owner
Trustee pursuant to the Sale and Servicing Agreement, the Indenture and
the Trust Agreement, as soon as such statements, reports and opinions are
furnished to the Indenture Trustee or the Owner Trustee, (ii) all
documents of WFSRC2 or the Trust required to be distributed to
Noteholders or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder and (iii) such other information
concerning WFSRC2, the Trust or WFS as the Underwriters may reasonably
request.
(j) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by WFSRC2
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Notes. To the extent, if any, that the ratings provided
with respect to the Notes by any Rating Agency (as such term is defined
in Section 9(m) hereof) that initially rates the Notes is conditional
upon the furnishing of documents or the taking of any other actions by
WFSRC2, WFSRC2 shall furnish such documents and take such other actions.
(k) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Representative
pursuant to Section 10 hereof) or if for any reason either WFSRC2 shall
be unable to perform its obligations hereunder, to reimburse the
Underwriters for all of their out-of-pocket expenses (including the fees
and expenses of counsel to the Underwriters) reasonably incurred by the
Underwriters in connection herewith.
(l) To apply the net proceeds from the offering in the manner set
forth under the caption "Use of Proceeds" in the Prospectus.
(m) WFSRC2, during the period when the Prospectus is required to
be delivered under the Act or the Exchange Act (including the rules and
regulations under
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the Act ("Rules and Regulations") and the rules and regulations of the
Commission under the Exchange Act (the "Exchange Act Regulations")), will
file all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods required
by the Exchange Act and the Exchange Act Regulations.
6. Representations and Warranties of WFSRC2 and WFS.
(a) WFSRC2 represents and warrants to, and agrees with, each of the
Underwriters that:
(i) The conditions to the use of a registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to WFSRC2 and the Registration Statement
and the Prospectus fully comply, and any supplements or amendments
thereto will fully comply, in all material respects with the provisions
of the Act.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of WFSRC2, threatened by the
Commission. At the effective date, respectively, of the Registration
Statement and any post-effective amendments thereto, at the date of this
Agreement and the Closing Date, the Registration Statement and any
post-effective amendments or supplements thereto, each Preliminary
Prospectus, the Prospectus and any amendment or supplement thereto,
complied or will comply in all respects with the requirements of the Act
and the Rules and Regulations, and did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and on the date of filing the Prospectus pursuant to Rule
424(b), the date of this Agreement and the Closing Date, neither the
Prospectus nor any amendments or supplements thereto contained or will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the representations and
warranties in this subparagraph shall not apply to statements or
omissions in the Registration Statement or the Prospectus or any
Preliminary Prospectus made in reliance upon information furnished to
WFSRC2 in writing by the Underwriters through the Representative
expressly for use therein or to that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification of
the Indenture Trustee on Form T-1 (the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
(iii) Each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, complied or will comply when so filed
with the requirements of the Act and the Rules and Regulations, and the
Prospectus delivered to the Underwriters for use in connection with the
offering of the Notes was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system, except to the extent permitted
by Regulation S-T.
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(iv) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act
and Exchange Act Regulations, and, when read together with the other
information in the Prospectus, at the date of this Agreement and at the
Closing Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(v) The Securities conform to the description thereof contained in
the Prospectus and are duly and validly authorized and (i) when the
Certificates have been executed, authenticated and delivered in
accordance with the Trust Agreement, such Certificates 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, such Notes will be entitled to the
benefits and security afforded by the Indenture and will constitute
legal, valid and binding obligations of the Trust enforceable in
accordance with their terms and the terms of the Indenture, subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(vi) The execution and delivery by WFSRC2 of the Administration
Agreement, the Indenture, the Sale and Servicing Agreement, the Trust
Agreement, the indemnification agreement dated as of August 1, 2000 (the
"Indemnification Agreement"), among WFSRC2, WFS, Financial Security and
the Representative, the insurance, indemnity and pledge agreement dated
as of August 1, 2000 (the "Insurance Agreement" and, together with the
Administration Agreement, the Indemnification Agreement, the Indenture,
the Sale and Servicing Agreement and the Trust Agreement, the "Basic
Documents"), among the Trust, WFSRC2, WFS, Financial Security and the
Indenture Trustee, and this Agreement are within the corporate power of
WFSRC2 and have been duly authorized by all necessary corporate action on
the part of WFSRC2 and neither the issuance and sale of the Notes to the
Underwriters, nor the execution and delivery by WFSRC2 of this Agreement
and the Basic Documents to which each of them is a party, nor the
consummation by WFSRC2 of the transactions herein and therein
contemplated, nor compliance by WFSRC2 with the provisions hereof or
thereof, will conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the articles of
incorporation or bylaws of WFSRC2 or any indenture, mortgage, deed of
trust or other agreement or instrument to which WFSRC2 is now a party or
by which it is bound, or any order of any court or government agency or
authority entered in any proceeding to which WFSRC2 was or is now a party
or by which it is bound.
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(vii) WFSRC2 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; WFSRC2 holds all material licenses, certificates and permits
from all governmental authorities necessary for the conduct of its
business as described in the Prospectus; and WFSRC2 has the corporate
power and authority to own its properties and conduct its business as
described in the Prospectus.
(viii) Each of this Agreement and the Basic Documents to which
WFSRC2 is a party, when executed and delivered as contemplated thereby,
will have been duly authorized, executed and delivered by such entity and
will constitute, when so executed and delivered, a legal, valid and
binding instrument enforceable against such entity in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally,
subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and, in the
case of this Agreement and the Indemnification Agreement, except as
rights to indemnity and contribution hereunder and thereunder may be
limited by applicable law; each of the Basic Documents conforms to the
description thereof contained in the Prospectus; and the Indenture has
been duly qualified under the 1939 Act.
(ix) At the Closing Date, WFSRC2 will have good and marketable
title to the Contracts listed in Schedule A to the Sale and Servicing
Agreement, free and clear of any lien, mortgage, pledge, charge, security
interest or other encumbrance (subject to the security interest afforded
to Financial Security under the Insurance Agreement); and WFSRC2's
assignment and delivery of the Contract Documents to the Trust will vest
in the Trust the good and marketable title purported to be conveyed
thereby (subject to the security interest afforded to Financial Security
under the Insurance Agreement).
(x) 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.
(xi) The representations and warranties made by WFSRC2 in the Sale
and Servicing Agreement and in the Officers' Certificates delivered
pursuant to the Basic Documents to which WFSRC2 is a party will be true
and correct at the Closing Date.
(xii) Since ____________, 2000, there has been no material adverse
change or development involving a prospective material adverse change in
or affecting particularly the condition, financial or otherwise, of
WFSRC2, or the earnings, affairs or business
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prospects of WFSRC2, whether or not arising in the ordinary course of
business, except as set forth in or contemplated in the Prospectus.
(b) WFS represents and warrants to the Underwriters that the
representations and warranties of WFSRC2 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 WFSRC2 from WFS on the Closing
Date were free and clear of all liens (including tax liens), mortgages,
pledges, charges, security interests and other encumbrances at the time
of such transfer (subject to the security interest afforded to Financial
Security under the Insurance Agreement).
(v) WFS has the power and authority to own its properties, to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under each of the Basic Documents to which it is
a party.
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(vi) Since June 30, 2000, there has been no material adverse
change or development involving a prospective material adverse change in
or affecting particularly the condition, financial or otherwise, of WFS,
or the earnings, affairs or business prospects of WFS, whether or not
arising in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
7. Payment of Expenses. WFSRC2 will pay all costs, expenses, fees and
taxes incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, filing and distribution under the Act
of the Registration Statement as first filed (including all financial
statements, exhibits and documents incorporated by reference), all Computational
Materials, each Structural Term Sheet, each Collateral Term Sheet, each
Preliminary Prospectus and all amendments and supplements to any of them
(including the delivery to the Underwriters of copies thereof), (ii) the
preparation of this Agreement, (iii) the preparation and issuance of the
Securities and delivery of the Notes to the Underwriters, (iv) the fees and
disbursements to WFSRC2's counsel and accountants, (v) the registration or
qualification of the Notes for offer and sale under the securities or Blue Sky
laws of the jurisdictions referenced in Section 5(g) 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 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 Moody's
Investors Service, Inc. ("Moody's") and Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies, Inc. ("Standard & Poor's") in connection
with the rating of the Notes and (viii) any fees paid to Financial Security in
connection with the issuance of the Note Policy.
8. Indemnification and Contribution.
(a) WFSRC2, and WFS jointly and severally agree to indemnify and hold
harmless each Underwriter from and against any and all losses, claims, damages,
liabilities and judgments, joint or several, to which such Underwriter may
become subject under the Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
each Preliminary Prospectus (if any), each Collateral Term Sheet (if any), each
Structural Term Sheet (if any), all Computational Materials (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 WFSRC2 and WFS
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability, judgment or action as such expenses are
incurred; provided, however, that neither WFSRC2 nor WFS will be liable in any
such case to the extent that any such loss, claim, damage, liability or judgment
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any such document in reliance upon and
in conformity with written
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information furnished to WFSRC2 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
Cleary, Gottlieb, Steen & Hamilton on behalf of the Public Securities
Association (which letter, and the SEC staff'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 Brown & Wood on behalf of Kidder,
Peabody & Co., Inc. (which letter, and the SEC staff's response thereto, were
publicly available May 20, 1994).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless WFSRC2 and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFSRC2 and WFS
may become subject under the Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
(ii) any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information relating to such Underwriter
furnished to WFSRC2 or WFS by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by WFSRC2 or WFS in connection with investigating or
defending any such loss, claim, damage, liability, judgment or action as such
expenses are incurred, it being understood that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of each Underwriter: the concession
and reallowance figures appearing in the second table under the caption
"Underwriting" and the information regarding price stabilization contained in
the sixth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
Section 8(a) or 8(b), notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve such indemnifying party from any liability that it may have to any
indemnified party otherwise than under Section 8(a) or 8(b). 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
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<PAGE> 13
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
WFSRC2 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 WFSRC2 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 WFSRC2 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 WFSRC2 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 WFSRC2, 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
WFSRC2, 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.
WFSRC2, WFS and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, no Underwriter (except as may be
provided in the agreement among underwriters relating to the offering of the
Notes) shall be required to contribute any amount in excess of the underwriting
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.
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<PAGE> 14
(e) The obligations of WFSRC2 and WFS under this Section shall be in
addition to any liability any of WFSRC2 or WFS may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any of the Underwriters within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of WFSRC2 or WFS, to each officer of
WFSRC2 or WFS who has signed the Registration Statement and to each person, if
any, who controls WFSRC2 or WFS within the meaning of the Act.
9. Conditions. The several obligations of the Underwriters to purchase
the Notes under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of WFSRC2 and WFS
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
(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 June 30, 2000, there shall not have been any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or not arising in the
ordinary course of business, of WFSRC2 or WFS. On the Closing Date, the
Representative shall have received (i) a certificate dated the Closing
Date, signed by the President or a Vice President of WFSRC2, confirming
the matters set forth in paragraphs (a), (b) and (c) of this Section and
(iii) 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.
(d) The Representative shall have received the opinion of
Mitchell, Silberberg & Knupp LLP, counsel for WFSRC2, dated the Closing
Date and satisfactory to counsel to the Underwriters, to the effect that:
(i) WFSRC2 has been duly incorporated and is validly
existing and in good standing under the laws of the State of
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
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<PAGE> 15
necessary, except such jurisdictions, if any, in which the failure
to be so qualified will not have a material adverse effect on
either business or properties of WFSRC2.
(ii) The statements in each of the Base Prospectus and the
Prospectus Supplement set forth under the captions "Summary of
Terms", "The Notes", "The Contracts Pool" and "Certain Information
Regarding the Securities", insofar as such statements purport to
summarize certain provisions of the Notes or the Basic Documents,
provide a fair summary of such provisions, and the statements in
the Base Prospectus under the captions "Summary of Prospectus--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
WFSRC2.
(v) Each Basic Document (other than the Indemnification
Agreement) to which each of WFSRC2 is a party has been duly
authorized, executed and delivered by WFSRC2 and, assuming due
authorization, execution and delivery by the parties thereto,
constitutes a legal, valid and binding agreement of WFSRC2
enforceable against WFSRC2, in accordance with its terms, except
as enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization or other laws, provisions
or principles now or hereafter in effect affecting the enforcement
of creditors' rights generally, except that no opinion 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 WFSRC2 and WFS) each such Basic Document constitutes
the valid, legal and binding obligation of the
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<PAGE> 16
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 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
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<PAGE> 17
the security interest afforded to Financial Security under the
Insurance Agreement); a financing statement with respect to the
Contracts has been filed with the Secretary of State of the State
of California pursuant to the California Uniform Commercial Code,
as amended, with the Secretary of State of the State of Nevada
pursuant to the Nevada Uniform Commercial Code, as amended, and
with the Secretary of State of the State of Delaware, pursuant to
the Delaware Uniform Commercial Code, as amended; and no other
filings in any jurisdiction or any other actions are necessary to
perfect the ownership interest of the Trustee in the Contracts
against any third parties.
(xi) The Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Contracts,
the security interests in the Financed Vehicles securing the
Contracts and the proceeds of each of the foregoing (subject to
the security interest afforded to Financial Security under the
Insurance Agreement), which security interest has been perfected
by the filing of financing statements with the Secretary of State
of the State of California 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) WFSRC2's assignment and delivery of the Contracts to
the Trust will vest to 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 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 WFSRC2 of its respective
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
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<PAGE> 18
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 WFSRC2 is a party nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach of, or constitute a
default under, the respective articles of incorporation or bylaws
of WFSRC2, as the case may be, or the terms of (A) any indenture
or other agreement or instrument known to such counsel and to
which WFSRC2 or any of its subsidiaries is a party or is bound or
(B) any judgment, order or decree known to such counsel to be
applicable to WFSRC2 or any of its respective subsidiaries, as the
case may be, of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over WFSRC2 or
any of its respective subsidiaries, as the case may be, except, in
the case of clauses (A) and (B), for defaults, breaches or
violations that do not, in the aggregate, have an adverse material
effect on WFSRC2.
(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 WFSRC2 is, or is threatened to be, a party
or of which the business or property of the Trust or WFSRC2 is, or
is threatened to be, the subject that is material to the business
or financial condition of the Trust or WFSRC2 and is not disclosed
in the Prospectus.
(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 of the Trust nor WFSRC2 is 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.
(xx) WFSRC2 has obtained all material licenses, permits and
other governmental authorizations which are necessary to the
conduct of its business; such licenses, permits and other
governmental authorizations are in full force and effect, and
WFSRC2 is in all material respects complying therewith; and WFSRC2
is otherwise in compliance with all laws, rules, regulations and
statutes of any jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on WFSRC2.
(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
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<PAGE> 19
(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 Guy Du
Bose, 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 or WII, as the case may be.
(ii) This Agreement has been duly authorized, executed and
delivered by WFS.
(iii) Each Basic Document to which WFS is a party has been
duly authorized, executed and delivered by WFS, and each Basic
Document other than the Indemnification Agreement constitutes a
legal, valid and binding agreement of WFS, enforceable against WFS
in accordance with its terms, except as enforceability thereof may
be subject to or limited by bankruptcy, insolvency,
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<PAGE> 20
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 business
as described in the Prospectus and to enter into and perform its
obligations under the Reinvestment Contract dated as of August 1,
2000, among the Bank, WFAL 2 and the Indenture Trustee (the
"Reinvestment Contract"), and the Sale and Assignment dated as of
August 1, 2000, from the Bank to WFS of
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<PAGE> 21
the Contracts (collectively with the Reinvestment Contract, the
"Bank Agreements").
(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
(i) 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 (ii) 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 (i) and (ii), 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 authority to own its
properties, to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the
Reinvestment Contract and the Sale and Assignment, dated as of
August 1, 2000, from WFAL 2 to WFS of the Contracts (collectively
with the Reinvestment Contract, the "WFAL 2 Agreements"), and is
duly qualified and in good standing as a foreign
21
<PAGE> 22
corporation in each jurisdiction in which the location of its
properties or the character of its operations makes such
qualification necessary, except such jurisdictions, if any, in
which the failure to be so qualified will not have a material
adverse effect on either the business or properties of WFAL 2, as
the case may be.
(xiv) Each of the WFAL 2 Agreements has been duly
authorized, executed and delivered by WFAL 2, and constitutes a
legal, valid and binding agreement of WFAL 2, enforceable against
WFAL 2, in accordance with its terms, except as enforceability
thereof may be subject to or limited by bankruptcy, insolvency,
reorganization or other laws, provisions or principles now or
hereafter in effect affecting the enforcement of creditors' rights
generally except that no opinion is expressed as to the
availability of remedies of specific performance, injunction or
other forms of equitable relief, all of which may be subject to
certain tests of equity jurisdiction, equitable defenses and the
discretion of the court before which any proceeding therefor may
be brought.
(xv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
performance by WFAL 2 of its obligations under the WFAL 2
Agreements, except such as have been obtained.
(xvi) Neither the consummation of any of the transactions
contemplated by the WFAL 2 Agreements nor the fulfillment of the
terms hereof or thereof will conflict with, result in a breach of,
or constitute a default under, the articles of incorporation or
bylaws of WFAL 2, or the terms of (A) any indenture or other
agreement or instrument known to such counsel and to which WFAL 2
is a party or is bound or (B) any judgment, order or decree known
to such counsel to be applicable to WFAL 2, of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over WFAL 2, except, in the case of
clauses (A) and (B), for defaults, breaches or violations that do
not, in the aggregate, have an adverse material effect on WFAL 2.
(xvii) To the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened to which
WFAL 2, as the case may be, is, or is threatened to be, a party or
of which its business or property is, or is threatened to be, the
subject that would have a material adverse effect on the 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.
22
<PAGE> 23
(f) The Representative shall have received from Mitchell,
Silberberg & Knupp LLP, counsel for WFSRC2, 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 Moody's in
connection with the rating of any of the Notes, as if each such opinion
were addressed to the Underwriters.
(g) The Representative shall have received the opinion of Brian H.
Mellstrom, 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 Richards, Layton & Finger P.A.,
counsel to the Owner Trustee, dated the Closing Date and satisfactory to
counsel to the Underwriters and to counsel to WFSRC2, to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under
the laws of the State of Delaware.
(ii) The Owner Trustee has full corporate trustee power and
authority to enter into and perform its obligations under the
Trust Agreement and, on behalf of the Trust, under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement
and, on behalf of the Trust, of the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the
Certificates and the Notes and the performance by the Owner
Trustee of its obligations under the Trust Agreement, the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized by all necessary corporate
action of the Owner Trustee and each has been duly executed and
delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement,
the Indenture 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 Trustee, of the Indenture,
the Sale and Servicing Agreement and the Administration Agreement
do not require any consent, approval or authorization of, or any
registration or filing with, any Delaware or United States Federal
governmental authority having jurisdiction over the trust power of
the Owner Trustee, other than those consents, approvals or
23
<PAGE> 24
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 By-laws of the Owner Trustee.
(i) The Representative shall have received an opinion addressed to
the Underwriters and to WFS, dated as of the Closing Date, of Richards,
Layton & Finger P.A, special Delaware counsel to the Trust, satisfactory
to counsel to the Underwriters and counsel to WFS, to the effect that:
(i) The Trust has been duly formed and is validly existing
as a business trust pursuant to the laws of the State of Delaware,
12 Del. C. Section 3801, et seq.
(ii) The Trust Agreement authorizes the Trust to execute
and deliver the Indenture, the Sale and Servicing Agreement and
the Administration Agreement, to issue the Certificates and the
Notes and to grant the trust estate to the Indenture Trustee as
security for the Notes.
(iii) Assuming that the Certificates have been duly
authorized, executed and issued by the Trust, the Certificates
have been validly issued and are entitled to the benefits of the
Trust Agreement.
(iv) Except for the timely filing in the future of
continuation statements with respect to the financing statements,
no other filing is required in the State of Delaware in order to
make effective the lien of the Indenture. Insofar as the Delaware
Uniform Commercial Code, 6 Del. C. Section 9-101 et seq. (the
"UCC"), applies (without regard to conflict of laws principles)
and, assuming that the security interests in that portion of the
trust estate that consists of general intangibles, accounts or
chattel paper, as defined under the UCC, have been duly created
and have attached, the Indenture Trustee has a perfected security
interest in such general intangibles, accounts or chattel paper
and, assuming that the UCC search accurately lists all the
financing statements filed naming the Trust as debtor and
describing any portion of the trust estate consisting of such
general intangibles, accounts or chattel paper, the security
interest of the Indenture Trustee will be prior to the security
interest of all other creditors, except that such security
interest will be subject to the security interest afforded to
Financial
24
<PAGE> 25
Security under the Insurance Agreement, and excluding purchase
money security interests under Section 9-312(4) of the UCC, and
temporarily perfected security interests pursuant to Section
9-306(3) of the UCC (as to the priority of temporarily unrecorded
security interests in proceeds), subject to customary and usual
exceptions.
(v) No creditor of the Seller or any Certificateholder
shall have any right to obtain possession or, or otherwise legal
or equitable remedies with respect to, the property of the Trust.
(vi) Assuming that the Sale and Servicing Agreement conveys
good title to the Trust Property referred to therein to the Trust
as a true sale and not as a security arrangement, the Trust rather
than the Seller is the owner of the Trust Property.
(j) The Representative shall have received an opinion addressed to
the Underwriters and to WFS from White & Case, counsel to the Indenture
Trustee, dated the Closing Date and satisfactory to counsel to the
Underwriters and to special 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
<PAGE> 26
(k) The Representative shall have received the opinion of Brown &
Wood LLP, counsel to the Underwriters, dated the Closing Date, with
respect to the issuance and sale of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may reasonably require, and WFSRC2 and WFS shall have furnished to
counsel to the Underwriters such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(l) The Representative shall have received letters in form and
substance satisfactory to the Representative, addressed to the
Underwriters and dated the date hereof, from Ernst & Young LLP,
independent public accountants for WFSRC2, substantially in the form
heretofore approved by the Representative.
(m) At the Closing Date each class of Notes shall have been rated
in the highest category applicable to such Class by each of Moody's and
Standard & Poor's, as nationally recognized rating agencies, with regard
to the benefit afforded the Notes under the Note Policy, and such ratings
shall be in full force and effect and 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 by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Act (a "Rating Agency"), to the
public, WFSRC2 of any intended or potential downgrading or of a possible
change that does not indicate the direction of the possible change, in
the rating accorded any of WFSRC2's securities by any Rating Agency.
(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 by
WFSRC2 or the Representative.
This Agreement may be terminated at any time prior to the Closing Date by
the Representative by written notice to WFSRC2 if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in or affecting particularly the
condition, financial or otherwise, of WFSRC2 or WFS or the earnings, affairs or
business prospects of WFSRC2 or WFS, whether or not arising in the ordinary
course of business, which would, in the reasonable judgment of the
Representative, make the offering or delivery of any class of Notes
impracticable, (ii) any outbreak of hostilities or other national or
international calamity or crisis or material change in economic conditions, if
the effect of such outbreak, calamity, crisis or change on the financial markets
of the United States or elsewhere would, in the reasonable judgment of the
Representative, make the offering or delivery of any class of Notes
impracticable, (iii) suspension of trading in securities on the New York Stock
Exchange or the American Stock Exchange or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority which in the reasonable opinion of the Representative
materially and adversely affects, or will materially and adversely affect, the
26
<PAGE> 27
business or operations of WFSRC2, (v) declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the reasonable opinion the Representative has a material
adverse effect on the financial markets in the United States.
11. Miscellaneous. All communications hereunder will be in writing and
notices given pursuant to any provision of this Agreement shall be addressed as
follows: (i) if to either WFSRC2 or WFS, to Guy Du Bose, Esq. at his office at
23 Pasteur, Irvine, California 92618 or (iii) if to any Underwriter, through the
Representative at Deutsche Bank Securities Inc , 100 North Tryon Street, Bank of
America Corporate Center, 10th Floor, NC 1-007-10-07, Charlotte, North Carolina
28255 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, WFSRC2, their respective officers and
directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriters or
by or on behalf of WFSRC2, its officers or directors or any controlling person
of WFSRC2 or WFS, (ii) acceptance of the Notes and payment for them hereunder
and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Representative because of
any failure or refusal on the part of WFSRC2 or WFS to comply with the terms or
to fulfill any of the conditions of this Agreement, or pursuant to any other
provision hereof (other than by notice given to WFSRC2 with respect to clauses
(ii) through (vi) of the second paragraph of Section 10 hereof), WFSRC2 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 WFSRC2, WFS and the Underwriters,
any controlling persons referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Notes
from the Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
27
<PAGE> 28
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
<PAGE> 29
If the foregoing is in accordance with your understanding of the
agreement among WFSRC2, WFS and the Underwriters, kindly sign and return to us
the enclosed duplicate hereof, whereupon it will become a binding agreement
among WFSRC2, WFS and the several Underwriters in accordance with its terms.
Very truly yours,
WFS RECEIVABLES CORPORATION 2
By:
------------------------------------------
Name:
Title:
WFS FINANCIAL INC
By:
------------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
DEUTSCHE BANK SECURITIES INC
as Representative of the several
Underwriters named on Schedule I hereto
By:
--------------------------------
Name:
Title:
29
<PAGE> 30
SCHEDULE I
<TABLE>
<CAPTION>
Amount of Class Amount of Class Amount of Class Amount of Class
Underwriter A-1 Notes A-2 Notes A-3 Notes A-4 Notes
----------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Deutsche Bank Securities $ $ $ $
Inc
Banc of America
Securities LLC
Bear, Stearns & Co. Inc.
Donaldson, Lufkin &
Jenrette Securities
Corporation
----------- ----------- ----------- -----------
Total $ $ $ $
=========== =========== =========== ===========
</TABLE>
S-1
