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EXHIBIT 1.1
WFS FINANCIAL 2000-A OWNER TRUST
$__________
_____ % AUTO RECEIVABLE BACKED NOTES, CLASS A-1
$__________
_____ % AUTO RECEIVABLE BACKED NOTES, CLASS A-2
$__________
_____ % AUTO RECEIVABLE BACKED NOTES, CLASS A-3
WFS FINANCIAL AUTO LOANS, INC.
and
WFS RECEIVABLES CORPORATION,
as Sellers,
and
WFS FINANCIAL INC,
as Master Servicer
UNDERWRITING AGREEMENT
March __, 2000
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
as Representative of the several Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
WFS Financial Auto Loans, Inc., a California corporation ("WFAL"), and WFS
Receivables Corporation, a California corporation ("WFSRC" and together with
WFAL, the "Sellers"), propose to sell to the several underwriters listed on
Schedule I hereto (the "Underwriters") for whom Bear, ▇▇▇▇▇▇▇ & Co. 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-4 and $__________ aggregate principal amount of ____ % Auto Receivable
Backed Notes Class A-3 (the "Class A-4 Notes" and, together with the Class A-1
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Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes"). The Notes will
be issued pursuant to an indenture dated as of March 1, 2000 (the "Indenture"),
between the WFS Financial 2000-A Owner Trust (the "Trust") and Bankers Trust
Company, as trustee (the "Indenture Trustee"). 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"). Each Note
will represent an obligation of the Trust. Simultaneously with the issuance of
the Notes, WFAL and WFSRC will cause the Trust to issue Auto Receivable Backed
Certificates (the "Certificates", and together with the Notes, the "Securities")
to WFAL and WFSRC. The Trust will be created and the Certificates will be issued
pursuant to a trust agreement, dated as of _______, 2000, as amended and
restated as of _______, 2000 (the "Trust Agreement"), among WFAL, WFSRC,
Financial Security and Chase Manhattan Bank Delaware, as Owner Trustee. Each
Certificate will evidence a fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, (i) a pool of
retail installment sales contracts and installment loans (the "Contracts")
secured by new and used automobiles and light-duty trucks financed thereby (the
"Financed Vehicles"), (ii) certain monies due under the Contracts on and after
March 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 March 1, 2000 (the "Sale and
Servicing Agreement"), among the Trust, WFAL, WFSRC 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 March 1, 2000 (the "Administration
Agreement"), among WFAL, WFSRC, WFS, as administrator (in such capacity, the
"Administrator"), the Trust and the Indenture Trustee, the Administrator will
perform certain administrative obligations under the Indenture. 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 WFAL and WFSRC have furnished to
the Underwriters.
1. Registration Statement and Prospectuses. WFAL and WFSRC meet the
requirements for use of Form S-3 under Securities Act of 1933 as amended (the
"Act"), and have 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 Sellers 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 Sellers have 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 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
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(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 Sellers have 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 the Underwriters either have provided to WFAL and
WFSRC (i) Collateral Term Sheets (as defined in Section 8) that the Underwriters
have provided to a prospective investor, WFAL and WFSRC have 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) that the Underwriters have provided to
a prospective investor, WFAL and WFSRC will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term Sheet and
Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Representative in final form.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, Base Prospectus, Preliminary Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are or are deemed to be incorporated by reference in the Registration Statement,
Preliminary Prospectus or the Prospectus, as the case may be. All references in
this Agreement to the terms "amend", "amendments" or "supplements" with respect
to the 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. WFAL and WFSRC, severally and not
jointly, agree to sell to the Underwriters, and upon the basis of the
representations, warranties and agreements of WFAL, WFSRC and WFS herein
contained and subject to all the terms and conditions of this Agreement, the
Underwriters agree to purchase from WFAL and WFSRC, severally and not jointly,
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, the
Class A-3 Notes, ___% of the principal amount thereof and (iii) the Class A-4
Notes, ___% of the principal amount thereof, in each case plus accrued interest
at the related Interest Rate from _______ 1, 2000, to but not including the
Closing Date. The Underwriters shall pay __% of the aggregate purchase price to
WFAL and __% of the aggregate purchase price to WFSRC.
3. Terms of Public Offering. Each of WFAL and WFSRC is advised by the
Representative that the Underwriters propose (i) to make a public offering of
the Notes as soon after the execution of this Agreement as in the judgment of
the Representative is advisable and (ii) initially to offer each Class of Notes
upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery of the Notes shall be made at the
office of the Representative at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
on or about 10:00 A.M., New York City time, on _______, 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, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
The Closing Date and the location of the delivery of and payment for the Notes
may be varied by agreement among the Representative, WFAL and WFSRC.
Each Class of Notes will be initially represented by one or more
certificates in definitive form registered in the name of Cede & Co., the
nominee of The Depository Trust Company ("DTC") (the "DTC Certificates"). The
certificates evidencing the DTC Certificates shall be made available to the
Representative for inspection not later than 10:00 A.M., New York City time, on
the business day immediately preceding the Closing Date. The Notes shall be
delivered to the Underwriters on the Closing Date for their respective accounts
against payment of the purchase price therefor by either (i) certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the order of WFAL and WFSRC or (ii) wire transfer (same day funds), as
the Representative, WFAL and WFSRC shall agree.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than March __, 2000.
5. Agreements of WFAL and WFSRC. Each of WFAL and WFSRC, jointly and
severally, 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
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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 either WFAL or WFSRC, makes the Registration Statement or
the Prospectus contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, WFAL and WFSRC will make every reasonable effort
to obtain the withdrawal or lifting of such order at the earliest
possible time.
(c) To furnish to the Representative two signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to the
Underwriters such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits, as
the Underwriters may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective,
or to make any amendment or supplement to the Prospectus of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object and to prepare and file with the
Commission promptly upon the request of the Representative, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution
of any of the Notes by the Underwriters, and to use its best efforts to
cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel to the Underwriters a prospectus is required by law to be
delivered in connection with sales 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 WFAL,
WFSRC or counsel to the Underwriters it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with any law, forthwith to prepare and file
with the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with
law,
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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 neither WFAL nor WFSRC
shall 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 WFAL or WFSRC, as the case may
be, 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 WFAL, WFSRC or the Trust required to be distributed to
Noteholders or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder and (iii) such other information
concerning WFAL, WFSRC, the Trust or WFS as the Underwriters may
reasonably request.
(j) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
WFAL or WFSRC prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Notes. To the extent, if any, that the
ratings provided with respect to the Notes by 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 either WFAL or WFSRC, WFAL or WFSRC, as the case may
be, 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 WFAL or WFSRC
shall be unable to perform its obligations hereunder, to reimburse the
Underwriters for all of their out-of-pocket
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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) WFAL and WFSRC, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act (including
the rules and regulations under the Act ("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 WFAL, WFSRC and WFS.
(a)Each of WFAL and WFSRC, jointly and severally, 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 WFAL and WFSRC and the
Registration Statement and the Prospectus fully comply, and any
supplements or amendments thereto will fully comply, in all material
respects with the provisions of the Act.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of either of WFAL or
WFSRC, threatened by the Commission. At the effective date,
respectively, of the Registration Statement and any post-effective
amendments thereto, at the date of this Agreement and the Closing Date,
the Registration Statement and any post-effective amendments or
supplements thereto, each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, complied or will comply in all respects
with the requirements of the Act and the Rules and Regulations, and did
not and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and on the date of filing the
Prospectus pursuant to Rule 424(b), the date of this Agreement and the
Closing Date, neither the Prospectus nor any amendments or supplements
thereto contained or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
representations and warranties in this subparagraph shall not apply to
statements or omissions in the Registration Statement or the Prospectus
or any Preliminary Prospectus made in reliance upon information
furnished to WFAL and WFSRC in writing by the Underwriters through the
Representative expressly for use therein or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Indenture Trustee on Form T-1 (the
"Form T-1") under the Trust Indenture Act of 1939, as amended (the "1939
Act").
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(iii) Each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, complied or will comply when so filed
with the requirements of the Act and the Rules and Regulations, and the
Prospectus delivered to the Underwriters for use in connection with the
offering of the Notes was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system, except to the extent permitted
by Regulation S-T.
(iv) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange
Act and Exchange Act Regulations, and, when read together with the other
information in the Prospectus, at the date of this Agreement and at the
Closing Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(v) The Notes 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 each of WFAL and WFSRC of the
Administration Agreement, the Indenture, the Sale and Servicing
Agreement, the Trust Agreement, the indemnification agreement dated as
of March 1, 2000 (the "Indemnification Agreement"), among WFAL, WFSRC,
WFS, Financial Security and the Representative, the insurance, indemnity
and pledge agreement dated as of March 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, WFAL, WFSRC, WFS, Financial Security and the Indenture Trustee,
and this Agreement are within the corporate power of WFAL or WFSRC, as
the case may be, and have been duly authorized by all necessary
corporate action on the part of WFAL or WFSRC, as the case may be, and
neither the issuance and sale of the Notes to the Underwriters, nor the
execution and delivery by ▇▇▇▇ and WFSRC of this Agreement and the Basic
Documents to which each of them is a party, nor the consummation by WFAL
and WFSRC of the transactions
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herein and therein contemplated, nor compliance by WFAL and WFSRC with
the provisions hereof or thereof, will conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or bylaws of WFAL or WFSRC, as the
case may be, or any indenture, mortgage, deed of trust or other
agreement or instrument to which either of WFAL or WFSRC is now a party
or by which it is bound, or any order of any court or government agency
or authority entered in any proceeding to which either of WFAL or WFSRC
was or is now a party or by which it is bound.
(vii) Each of WFAL and WFSRC has been duly incorporated and is
validly existing in good standing under the laws of the State of
California and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary, except such jurisdictions, if any, in which the
failure to be so qualified will not have a material adverse effect on
its business or properties; each of WFAL and WFSRC holds all material
licenses, certificates and permits from all governmental authorities
necessary for the conduct of its business as described in the
Prospectus; and each of WFAL and WFSRC has the corporate power and
authority to own its properties and conduct its business as described in
the Prospectus.
(viii) Each of this Agreement and the Basic Documents to which
either of WFAL or WFSRC is a party, when executed and delivered as
contemplated thereby, will have been duly authorized, executed and
delivered by such entity and will constitute, when so executed and
delivered, a legal, valid and binding instrument enforceable against
such entity in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and, in the case of this Agreement and the
Indemnification Agreement, except as rights to indemnity and
contribution hereunder and thereunder may be limited by applicable law;
each of 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, each of WFAL and WFSRC will have good
and marketable title to the Contracts listed in Schedule A to the Sale
and Servicing Agreement, free and clear of any lien, mortgage, pledge,
charge, security interest or other encumbrance (subject to the security
interest afforded to Financial Security under the Insurance Agreement);
and each of WFAL's and WFSRC's assignment and delivery of the Contract
Documents to the Trust will vest in the Trust the good and marketable
title purported to be conveyed thereby (subject to the security interest
afforded to Financial Security under the Insurance Agreement).
(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
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security interest will be subject to the security interest afforded to
Financial Security under the Insurance Agreement.
(xi) The representations and warranties made by each of WFAL and
WFSRC in the Sale and Servicing Agreement and in the Officers'
Certificates delivered pursuant to the Basic Documents to which each of
WFAL and WFSRC is a party will be true and correct at the Closing Date.
(xii) Since December 31, 1999, 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 either of WFAL or WFSRC, or the earnings, affairs or
business prospects of either of WFAL or WFSRC, whether or not arising in
the ordinary course of business, except as set forth in or contemplated
in the Prospectus.
(b)WFS represents and warrants to the Underwriters that the
representations and warranties of WFAL and WFSRC set forth in paragraph (a)
above are true and correct, and to the further effect that:
(i) WFS has been duly incorporated and is validly existing in
good standing under the laws of the State of California and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary, except such jurisdictions, if any, in which the failure to be
so qualified will not have a material adverse effect on either the
business or properties of WFS; WFS holds all material licenses,
certificates and permits from all governmental authorities necessary for
the conduct of its business as described in the Prospectus; and WFS has
the corporate power and authority to own its properties and conduct its
business as described in the Prospectus.
(ii) The execution and delivery by WFS of this Agreement and the
Basic Documents to which it is a party are within the corporate power of
WFS and have been duly authorized by all necessary action on the part of
WFS; and neither the execution and delivery by WFS of this Agreement and
the Basic Documents to which it is a party, nor the consummation by WFS
of the transactions herein and therein contemplated, nor compliance by
WFS with the provisions hereof and thereof, will conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or bylaws of WFS or any
indenture, mortgage, deed of trust or other agreement or instrument to
which WFS is now a party or by which it is bound, or any order of any
court or government agency or authority entered in any proceeding to
which WFS was or is now a party or by which it is bound.
(iii) Each of this Agreement and each Basic Document to which
WFS is a party has been duly authorized, executed and delivered by WFS
and constitutes a valid and binding agreement of WFS, enforceable
against WFS in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and, in
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the case of this Agreement and the Indemnification Agreement, except as
rights to indemnity and contribution hereunder and thereunder may be
limited by applicable law.
(iv) The Contracts transferred to WFAL from WFS and in part
further transferred from WFAL to WFSRC 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.
(vi) Since December 31, 1999, 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. WFAL and WFSRC will pay all costs, expenses,
fees and taxes incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing, filing and distribution
under the Act of the Registration Statement as first filed (including all
financial statements, exhibits and documents incorporated by reference), all
Computational Materials, each Structural Term Sheet, each Collateral Term Sheet,
each Preliminary Prospectus and all amendments and supplements to any of them
(including the delivery to the Underwriters of copies thereof), (ii) the
preparation of this Agreement, (iii) the preparation and issuance of the
Securities and delivery of the Notes to the Underwriters, (iv) the fees and
disbursements to WFAL's and WFSRC's counsel and accountants, (v) the
registration or qualification of the Notes for offer and sale under the
securities or Blue Sky laws of the jurisdictions referenced in Section 5(g)
hereof (including in each case the filing fees and the fees and disbursements of
counsel to the Underwriters relating to such registration or qualification and
in connection with the preparation of any Blue Sky or legal investment survey
relating thereto), (vi) the printing or copying and delivery to the Underwriters
of 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 ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") and Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") in connection with the rating
of the Notes.
8. Indemnification and Contribution.
(a) WFAL, WFSRC, and WFS jointly and severally agree to indemnify and
hold harmless each Underwriter from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which such Underwriter
may become subject under the Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
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untrue statement of a material fact contained in the Registration Statement,
each Preliminary Prospectus (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 WFAL, WFSRC and WFS will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability, judgment or action as such expenses are incurred; provided, however,
that neither WFAL, WFSRC nor WFS will be liable in any such case to the extent
that any such loss, claim, damage, liability or judgment arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any such document in reliance upon and in conformity with
written information furnished to WFAL or WFSRC by the Underwriters through the
Representative specifically for use therein.
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless WFAL, WFSRC and WFS from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which WFAL, WFSRC and
WFS may become subject under the Act or the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
(ii) any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information relating to such Underwriter
furnished to WFAL, WFSRC or WFS by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by WFAL, WFSRC or WFS in connection with investigating or
defending any such loss, claim, damage, liability, judgment or action as such
expenses are incurred, it being understood that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of each Underwriter: the concession
and reallowance figures appearing in the first and second paragraphs under the
caption "Underwriting" and the information regarding price stabilization
contained in the fifth 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
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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 or (ii) does not include a statement as to, or an admission of,
fault, culpability, or a failure to act by or on behalf of an indemnified party
(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
WFAL, WFSRC and WFS on the one hand and such Underwriter(s) on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of WFAL, WFSRC and WFS on the one hand and such
Underwriter(s) on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
WFAL, WFSRC and WFS on the one hand and such Underwriter(s) on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes (before deducting expenses) received by WFAL, WFSRC and
WFS and the total underwriting discounts and commissions received by such
Underwriter(s), bear to the total price to the public of the Notes, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of WFAL, WFSRC, WFS and the relevant Underwriter(s) shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by WFAL, WFSRC, WFS or the relevant
Underwriter(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
WFAL, WFSRC, WFS and the Underwriters agree that it would not be just
and equitable if contribution pursuant to Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any 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
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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 WFAL, WFSRC and WFS under this Section shall be
in addition to any liability any of WFAL, WFSRC or WFS may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any of the Underwriters within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability that the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of WFAL, WFSRC or WFS, to
each officer of WFAL, WFSRC or WFS who has signed the Registration Statement and
to each person, if any, who controls WFAL, WFSRC or WFS within the meaning of
the Act.
(f) Each Underwriter agrees to deliver to the WFAL, WFSRC and WFS no
later than the date prior to the date on which the Form 8-K is required to be
filed pursuant to Section 1 with a copy of its Derived Information (defined
below) for filing with the Commission on Form 8-K.
(g) Each Underwriter agrees, assuming all information relating to the
offering and sale of the Notes provided to the Underwriters by WFAL, WFSRC or
WFS ("Provided Information") is accurate and complete in all material respects,
to severally and not jointly indemnify and hold harmless each of WFAL, WFSRC and
WFS from and against any and all losses, claims, damages, liabilities and
judgments, joint or several, to which WFAL, WFSRC or 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 any untrue statement of a material fact contained in the
Derived Information provided by such Underwriter, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that in no case shall any Underwriter
be responsible for any amount in excess of the underwriting discount applicable
to the Notes purchased by such Underwriter. The obligations of each of the
Underwriters under this Section 8(g) shall be in addition to any liability which
such Underwriter may otherwise have.
WFAL, WFSRC, and WFS jointly and severally agree to indemnify and hold
harmless each Underwriter from and against any and all losses, claims, damages,
liabilities and judgments, joint or several, to which such Underwriter may
become subject under the Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgments (or actions in respect
thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Provided Information, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
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incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred. WFAL, WFSRC and WFS's obligation under this Section shall
be in addition to any liability which they may otherwise have to the
Underwriters.
The procedures set forth in Section 8(c) shall be equally applicable to
this Section 8(g).
The term "Derived Information" means such portion, if any, of the
information delivered to WFAL, WFSRC and WFS pursuant to Section 8(f) for filing
with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Provided Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, Structural Term Sheets or Computational Materials (as such terms
are interpreted in the No-Action Letters).
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 (the "▇▇▇▇▇▇ letter" and
together with the PSA Letter, the "No-Action Letters") of Brown & ▇▇▇▇ on behalf
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
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 WFAL, WFSRC and
WFS contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
(b) All actions required to be taken and all filings required to
be made by the Sellers 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 December 31, 1999, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the
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condition, financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary course of
business, of WFAL, WFSRC or WFS. On the Closing Date, the Representative
shall have received (i) a certificate dated the Closing Date, signed by
the President or a Vice President of WFAL, confirming the matters set
forth in paragraphs (a) (as to the representations and warranties of
WFAL only), (b) and (c) of this Section (as to WFAL only), (ii) a
certificate dated the Closing Date, signed by the President or a Vice
President of WFSRC, confirming the matters set forth in paragraphs (a)
(as to the representations and warranties of WFSRC only), (b) and (c) of
this Section (as to WFSRC only), 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
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for WFAL and WFSRC, dated the
Closing Date and satisfactory to counsel to the Underwriters, to the
effect that:
(i) Each of WFAL and WFSRC has been duly incorporated
and is validly existing and in good standing under the laws of
the State of California, with corporate power and authority to
own its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
this Agreement and each of the Basic Documents to which it is a
party, and is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the location of its
properties or the character of its operations makes such
qualification necessary, except such jurisdictions, if any, in
which the failure to be so qualified will not have a material
adverse effect on either business or properties of WFAL or
WFSRC, as the case may be.
(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", "--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
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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
WFAL and WFSRC.
(v) Each Basic Document (other than the Indemnification
Agreement) to which each of WFAL or WFSRC is a party has been
duly authorized, executed and delivered by WFAL or WFSRC, as the
case may be, and, assuming due authorization, execution and
delivery by the parties thereto, constitutes a legal, valid and
binding agreement of WFAL or WFSRC, as the case may be,
enforceable against WFAL or WFSRC, as the case may be, 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 WFAL, WFSRC and WFS) each such Basic
Document constitutes the valid, legal and binding obligation of
the Trust enforceable against the Trust in accordance with its
terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other laws now or
hereafter in effect affecting the enforcement of creditors'
rights generally, and except that no opinion is expressed as to
the availability of remedies of specific performance, injunction
or other forms of equitable relief, all of which may be subject
to certain tests of equity jurisdiction, equitable defenses and
the discretion of the court before which any proceeding therefor
may be brought.
(vii) The Certificates, when executed, authenticated and
delivered in accordance with the Trust Agreement, will be
validly issued and outstanding and entitled to the benefits of
the Trust Agreement.
(viii) The Notes, when executed and authenticated in
accordance with the Indenture and delivered and paid for
pursuant to this Agreement, will be entitled to the benefits of
the Indenture and will constitute legal, valid and binding
obligations of the Trust, entitled to the benefits of the
Indenture, and enforceable in accordance with their terms and
the terms of the Indenture (subject to the security interest
afforded to Financial Security under the Insurance Agreement),
subject, with respect to each of the Indenture and the Notes, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws
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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 the security
interest afforded to Financial Security under the Insurance
Agreement); a financing statement with respect to the Contracts
has been filed with the Secretary of State of the State of
California pursuant to the California Uniform Commercial Code,
as amended, and 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
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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) ▇▇▇▇'s assignment and delivery of the Contracts to
the Trust will vest in the Trust all of WFAL's right, title and
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) WFSRC'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.
(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 either of WFAL or WFSRC
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 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 WFAL or WFSRC is a party nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach of, or constitute a default under, the
respective articles of incorporation or bylaws of WFAL or WFSRC,
as the case may be, or the terms of (A) any indenture or other
agreement or instrument known to such counsel and to which WFAL
or WFSRC, as the case may be, 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 WFAL, WFSRC or any of their
respective subsidiaries, as the case may be, of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over WFAL, WFSRC or any of their
respective
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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 WFAL or
WFSRC, as the case may be.
(xviii) To the best knowledge of such counsel, there is
no legal or governmental proceeding pending or threatened to
which either of the Trust, WFAL or WFSRC is, or is threatened to
be, a party or of which the business or property of the Trust,
WFAL or WFSRC is, or is threatened to be, the subject that is
material to the business or financial condition of the Trust,
WFAL or WFSRC 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 of the Trust, WFAL nor WFSRC 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.
(xxi) Each of WFAL and WFSRC has obtained all material
licenses, permits and other governmental authorizations which
are necessary to the conduct of its business; such licenses,
permits and other governmental authorizations are in full force
and effect, and each of WFAL and WFSRC is in all material
respects complying therewith; and each of WFAL and WFSRC is
otherwise in compliance with all laws, rules, regulations and
statutes of any jurisdiction to which it is subject, except
where non-compliance would not have a material adverse effect on
WFAL or WFSRC, as the case may be.
(xxii) Except as to the financial statements and other
financial and statistical data included therein, as to which
such counsel need not express any opinion, such counsel (A) is
of the opinion the Registration Statement and the Prospectus and
any supplements or amendments thereto (except for the financial
statements and other financial or statistical data included
therein and the Form T-1) comply as to form in all material
respects with the Act and the 1939 Act and (B) believes that the
Registration Statement (except for the financial statements and
other financial or statistical data included therein, the
information regarding Financial Security included therein and
the Form T-1), at the time the Registration Statement became
effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and the Prospectus (except for the financial
statements and other financial or statistical data included
therein and the information regarding Financial Security
included therein) at the date hereof and at the Closing Date did
not and does not contain any untrue statement of a material fact
and did not and does not omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(xxiii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the
financial statements, supporting schedules and other financial
data therein, as to which no opinion need be rendered), when
they were filed with the Commission, complied as to form in all
material respects with the applicable requirements of the
Exchange Act and the Exchange Act Regulations.
(xxiv) The Indenture has been duly qualified under the
1939 Act and the Trust Agreement is not required to be qualified
under the 1939 Act.
(e) The Representative shall have received the opinion of ▇▇▇ ▇▇
▇▇▇▇, 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, 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.
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(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 _______ 1, 2000, among the Bank, WFAL 2 and the Indenture
Trustee (the "Reinvestment Contract"), and the Sale and
Assignment dated as of _______ 1, 2000, from the Bank to WFS of
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
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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 ________ 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 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
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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.
(f) The Representative shall have received from ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for WFAL and WFSRC, a letter dated the
Closing Date to the effect that the Underwriters may rely upon each
opinion rendered by such counsel to either Standard & Poor's or ▇▇▇▇▇'▇
in connection with the rating of any of the Notes, as if each such
opinion were addressed to the Underwriters.
(g) The Representative shall have received the opinion of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq., Assistant General Counsel for Financial Security,
dated the Closing Date and satisfactory to counsel to the Underwriters.
(h) The Representative shall have received the opinion addressed
to the Underwriters and to WFS from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A.,
counsel to the Owner Trustee, dated the Closing Date and satisfactory to
counsel to the Underwriters and to counsel to WFAL and WFSRC, to the
effect that:
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(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 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.
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26
(i) The Representative shall have received an opinion addressed
to the Underwriters and to WFS, dated as of the Closing Date, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A, special Delaware counsel to the Trust,
satisfactory to counsel to the Underwriters and counsel to WFS, to the
effect that:
(i) The Trust has been duly formed and is validly
existing as a business trust pursuant to the laws of the State
of Delaware, 12 Del. C. Section 3801, et seq.
(ii) The Trust Agreement authorizes the Trust to execute
and deliver the Indenture, the Sale and Servicing Agreement and
the Administration Agreement, to issue the Certificates and the
Notes and to grant the trust estate to the Indenture Trustee as
security for the Notes.
(iii) Assuming that the Certificates have been duly
authorized, executed and issued by the Trust, the Certificates
have been validly issued and are entitled to the benefits of the
Trust Agreement.
(iv) Except for the timely filing in the future of
continuation statements with respect to the financing
statements, no other filing is required in the State of Delaware
in order to make effective the lien of the Indenture. Insofar as
the Delaware Uniform Commercial Code, 6 Del. C. Section 9-101 et
seq. (the "UCC"), applies (without regard to conflict of laws
principles) and, assuming that the security interests in that
portion of the trust estate that consists of general
intangibles, accounts or chattel paper, as defined under the
UCC, have been duly created and have attached, the Indenture
Trustee has a perfected security interest in such general
intangibles, accounts or chattel paper and, assuming that the
UCC search accurately lists all the financing statements filed
naming the Trust as debtor and describing any portion of the
trust estate consisting of such general intangibles, accounts or
chattel paper, the security interest of the Indenture Trustee
will be prior to the security interest of all other creditors,
except that such security interest will be subject to the
security interest afforded to Financial Security under the
Insurance Agreement, and excluding purchase money security
interests under Section 9-312(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.
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(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.
(k) The Representative shall have received the opinion of ▇▇▇▇▇
& 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 WFAL, WFSRC and WFS shall
have furnished to counsel to the Underwriters such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(l) The Representative shall have received letters in form and
substance satisfactory to the Representative, addressed to the
Underwriters and dated the date hereof, from Ernst & Young LLP,
independent public accountants for WFAL and WFSRC, 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
▇▇▇▇▇'▇ 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
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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, WFAL or WFSRC of any intended or potential
downgrading or of a possible change that does not indicate the direction
of the possible change, in the rating accorded any of WFAL's or WFSRC'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
WFAL, WFSRC or the Representative.
This Agreement may be terminated at any time prior to the Closing Date
by the Representative by written notice to WFAL and WFSRC if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in or affecting particularly
the condition, financial or otherwise, of WFAL, WFSRC or WFS or the earnings,
affairs or business prospects of WFAL, WFSRC or WFS, whether or not arising in
the ordinary course of business, which would, in the reasonable judgment of the
Representative, make the offering or delivery of any Class of Notes
impracticable, (ii) any outbreak of hostilities or other national or
international calamity or crisis or material change in economic conditions, if
the effect of such outbreak, calamity, crisis or change on the financial markets
of the United States or elsewhere would, in the reasonable judgment of the
Representative, make the offering or delivery of any Class of Notes
impracticable, (iii) suspension of trading in securities on the New York Stock
Exchange or the American Stock Exchange or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority which in the reasonable opinion of the Representative
materially and adversely affects, or will materially and adversely affect, the
business or operations of WFAL or WFSRC, (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 or WFAL, WFSRC or WFS, to ▇▇▇ ▇▇ ▇▇▇▇, Esq. at his
office at ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or (iii) if to any Underwriter,
through the Representative at Bear, ▇▇▇▇▇▇▇ & Co. Inc., Attention: Asset Backed
Securities Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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.
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The respective indemnities, contribution agreements, representations,
warranties and other statements of WFS, WFAL, WFSRC, their respective officers
and directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriters or
by or on behalf of either of WFAL or WFSRC, its officers or directors or any
controlling person of WFAL, WFSRC or WFS, (ii) acceptance of the Notes and
payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Representative because of
any failure or refusal on the part of WFAL, WFSRC or WFS to comply with the
terms or to fulfill any of the conditions of this Agreement, or pursuant to any
other provision hereof (other than by notice given to WFAL and WFSRC with
respect to clauses (ii) through (vi) of the second paragraph of Section 10
hereof), WFAL, WFSRC and WFS agree to reimburse the Underwriters for all of
their out-of-pocket expenses (including the fees and disbursements of counsel to
the Underwriters) reasonably incurred by the Underwriters.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon WFAL, WFSRC, WFS and the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Notes from the Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
The Representative will act for the several Underwriters in connection
with the transactions described in this Agreement and any action taken by the
Representative under this Agreement will be binding upon all of the
Underwriters.
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If the foregoing is in accordance with your understanding of the
agreement among WFAL, WFSRC, WFS and the Underwriters, kindly sign and return to
us the enclosed duplicate hereof, whereupon it will become a binding agreement
among WFAL, WFSRC, WFS and the several Underwriters in accordance with its
terms.
Very truly yours,
WFS FINANCIAL AUTO LOANS, INC.
By:_________________________________
Name:
Title:
WFS RECEIVABLES CORPORATION
By:_________________________________
Name:
Title:
WFS FINANCIAL INC
By:_________________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
as Representative of the several
Underwriters named on Schedule I hereto
By:____________________________________
Name:
Title:
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SCHEDULE I
Amount of Class Amount of Class Amount of Class Amount of
Underwriter A-1 Notes A-2 Notes A-3 Notes Class A-4 Notes
----------- --------------- --------------- --------------- ---------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. --
----------- ----------- ---------- ---------
-------------------------- ----------- ----------- --
Total
=========== =========== ========== =========
S-1