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EXHIBIT 10.3
INSURANCE, INDEMNITY AND PLEDGE AGREEMENT
Dated as of ______ __, 1999
among
WFS FINANCIAL 1999-C OWNER TRUST,
WFS FINANCIAL AUTO LOANS, INC.,
WFS FINANCIAL INC,
WFS INVESTMENTS, INC.,
FINANCIAL SECURITY ASSURANCE INC.,
and
BANKERS TRUST COMPANY,
as Collateral Agent, Proceeds Agent and Indenture Trustee
WFS FINANCIAL 1999-C OWNER TRUST
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TABLE OF CONTENTS
Page
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INTRODUCTION.................................................................................1
AGREEMENTS...................................................................................2
ARTICLE I
Section 1.01. Definitions............................................................2
ARTICLE II
Section 2.01. Representations and Warranties of the Trust............................6
Section 2.02. Affirmative Covenants of the Trust.....................................8
Section 2.03. Negative Covenants of the Trust.......................................10
Section 2.04. Representations and Warranties of WII.................................11
Section 2.05. Affirmative Covenants of WII..........................................12
Section 2.06. Negative Covenants of WII.............................................14
Section 2.07. Representations and Warranties of the Company.........................15
Section 2.08. Representations and Warranties of WFS.................................19
Section 2.09. Affirmative Covenants of the Company..................................21
Section 2.10. Negative Covenants of the Company.....................................23
Section 2.11. Affirmative Covenants of WFS..........................................24
ARTICLE III
Section 3.01. Agreement to Issue Policies...........................................25
Section 3.02. Conditions Precedent to Issuance of Policies..........................25
Section 3.03. Premium...............................................................29
Section 3.04. Reimbursement Obligation..............................................29
Section 3.05. Non-Recourse Obligation...............................................31
Section 3.06. Indemnification.......................................................31
Section 3.07. Liability Absolute....................................................34
Section 3.08. Liability of Financial Security.......................................35
Section 3.09. Payment of Costs, Fees and Expenses...................................36
Section 3.10. Payment Procedure.....................................................36
Section 3.11. Business Days.........................................................36
Section 3.12. Waivers and Consents by the Company and WFS...........................36
ARTICLE IV
Section 4.01. Obligations Secured Hereby............................................37
Section 4.02. Granting Clause.......................................................38
Section 4.03. Release of Collateral.................................................38
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ARTICLE V
Section 5.01. Financial Security's Direction Upon Servicer Default..........................38
Section 5.02. Financial Security's Direction of Insolvency Proceedings..............40
ARTICLE VI
Section 6.01. Appointment and Powers of Collateral Agent............................40
Section 6.02. Successor Collateral Agent............................................40
Section 6.03. Remedies Available to Collateral Agent................................41
Section 6.04. Waiver of Stay or Extension Laws; Marshalling of Assets...............42
Section 6.05. Restoration of Rights and Remedies....................................43
Section 6.06. Remedies Cumulative...................................................43
Section 6.07. Control by Financial Security.........................................43
Section 6.08. Proceeds Agent as Custodian and Bailee of Collateral Agent............43
Section 6.09. Indemnification of Collateral Agent...................................44
Section 6.10. Compensation Payable to Collateral Agent..............................44
Section 6.11. Protection of Financial Security's Security Interest..................45
Section 6.12. Representations and Warranties of Indenture Trustee...................45
Section 6.13. Certain Guaranties....................................................46
ARTICLE VII
Section 7.01. Events of Default.....................................................46
Section 7.02. Remedies; Waivers.....................................................47
ARTICLE VIII
Section 8.01. Amendments, Changes and Modifications.................................48
Section 8.02. Notices...............................................................48
Section 8.03. Method of Payment.....................................................48
Section 8.04. Further Assurances and Corrective Instruments.........................48
Section 8.05. Term of Agreement.....................................................49
Section 8.06. Assignments; Third-Party Rights; Reinsurance..........................49
Section 8.07. Consent of Financial Security.........................................50
Section 8.08. Right to Enforce Sale and Servicing Agreement.........................50
Section 8.09. WFS and WII as Parties Only for Certain Provisions....................50
Section 8.10. Severability..........................................................50
Section 8.11. Reports...............................................................50
Section 8.12. Counterparts..........................................................50
Section 8.13. Governing Law.........................................................50
Section 8.14. Headings..............................................................50
Section 8.15. Trial by Jury Waived..................................................51
Section 8.16. Limited Liability.....................................................51
Section 8.17. Limited Liability of Chase Manhattan Bank Delaware....................51
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EXHIBITS
EXHIBIT A Forms of WFS Assignment and Collateral Assignment
EXHIBIT B-1 Form of Financial Guaranty Insurance Policy with respect
to the Certificates, together with form of Endorsement No. 1
thereto
EXHIBIT B-2 Form of Financial Guaranty Insurance Policy with respect to
the Notes, together with form of Endorsement No. 1 thereto
EXHIBIT C Form of Opinion of Counsel to the Company, WFS and WII
EXHIBIT D Form of Opinion of Special Tax Counsel to WFS
EXHIBIT E Form of Certificate of the Indenture Trustee and the
Collateral Agent
EXHIBIT F Form of Opinion of Counsel to the Indenture Trustee and the
Collateral Agent
EXHIBIT G Form of Opinion of Counsel to the Trust and the Owner Trustee
EXHIBIT H Form of Letter of Independent Accountants
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INSURANCE, INDEMNITY AND PLEDGE AGREEMENT
THIS INSURANCE, INDEMNITY AND PLEDGE AGREEMENT is made as of
______ __, 1999, by and among WFS FINANCIAL 1999-C OWNER TRUST, a Delaware
business trust (the "Trust"), WFS FINANCIAL AUTO LOANS, INC., a California
corporation (the "Company"), WFS FINANCIAL INC, a California corporation
("WFS"), WFS INVESTMENTS, INC., a California corporation ("WII"), FINANCIAL
SECURITY ASSURANCE INC., a New York financial guaranty insurance company
("Financial Security"), and BANKERS TRUST COMPANY, a New York banking
corporation, in its capacities as Collateral Agent and Proceeds Agent (each as
defined below), and in its capacity as Indenture Trustee under the Indenture
referred to below (the "Indenture Trustee").
INTRODUCTION
The Company is the owner of the Contracts. The Company proposes
to sell to the Trust all of its right, title and interest in and to the
Contracts and certain other property pursuant to the Sale and Servicing
Agreement. The Trust will issue Certificates pursuant to the Trust Agreement and
Notes pursuant to the Indenture.
Each Certificate will represent a fractional undivided interest
in the Trust. Each Note will be secured by the Indenture Property.
The Company has agreed to convey a security interest in the
Collateral and all the property conveyed by the Company to the Trust (with the
exception of the Policies) pursuant to the Sale and Servicing Agreement in favor
of Financial Security prior in right to all liens, claims, rights or interests
other than those of the Trust.
The Trust has requested that Financial Security issue the Note
Policy to the Indenture Trustee to guarantee payment of the Scheduled Payments
(as defined in such Note Policy) on each Distribution Date in respect of the
Notes, and has requested that Financial Security issue the Certificate Policy to
Owner Trustee, as Owner Trustee under the Trust Agreement, to guarantee payment
of the Guaranteed Distributions (as defined in such Certificate Policy) on each
Distribution Date in respect of the Certificates.
Financial Security is willing to issue the Policies for the
purpose stated above if the Trust, the Company, WFS, WII and the Indenture
Trustee enter into this Agreement and, in order to secure the Company's
obligations hereunder, the Company pledges the Collateral to the Collateral
Agent for the benefit of Financial Security, subject to the provisions hereof.
The parties hereto desire to specify the indemnity and
reimbursement obligations to be provided in respect of amounts paid by Financial
Security under the Policies, the security to be provided in respect of such
indemnity and reimbursement obligations, and certain other matters.
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AGREEMENTS
In consideration of the mutual promises, covenants,
representations and warranties hereinafter set forth, the parties hereto agree
to as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All words and phrases defined in the
Trust Agreement and the Sale and Servicing Agreement shall have the same
meanings in this Agreement unless a different meaning is set forth in this
Agreement. In addition, the following words and phrases shall have the following
respective meanings:
"Administration Agreement" means the Administration Agreement
dated as of the date hereof, among the Trust, WFS Financial Inc, as
Administrator, the Seller and the Indenture Trustee.
"Agreement" means this Insurance, Indemnity and Pledge Agreement,
as the same may be amended, modified or supplemented from time to time.
"Authorized Officer" means, with respect to WFS, the Company, WII
or any corporation, the president, the chief financial officer or any vice
president.
"Bank" means, Western Financial Bank, a federally-chartered
savings association.
"Certificates" means the Certificates issued under the Trust
Agreement.
"Certificate Policy" means the financial guaranty insurance
policy, including any endorsements thereto, issued by Financial Security with
respect to the Certificates, substantially in the form of Exhibit B-1 hereto.
"Collateral" means all of the Contracts listed in the Schedule of
Contracts attached to the Sale and Servicing Agreement, including, without
limitation, all payments of Monthly P&I (exclusive of Retained Yield, if any)
due on or after the Cut-Off Date (excluding the amount allocable to principal
and interest due prior to the Cut-Off Date), all Net Liquidation Proceeds and
Net Insurance Proceeds with respect to any Financed Vehicle to which a Contract
relates received on or after the Cut-Off Date and all other proceeds received in
respect of such Contracts (other than payments of Monthly P&I due prior to the
Cut-Off Date), and any and all security interests in the Financed Vehicles; the
Contract Documents relating to the Contracts (except the Contract Documents for
Contracts which have been the subject of a Full Prepayment received on or after
the Cut-Off Date but no later than one Business Day prior to the Closing Date,
in lieu of which the Company shall have deposited in or credited to the
Collection Account on or prior to the Closing Date an amount equal to such Full
Prepayment); all Spread Account Collateral; and all proceeds in any way
delivered with respect to the foregoing, all rights to payments with respect to
the foregoing and all rights to enforce the foregoing.
"Collateral Agent" means, initially, Bankers Trust Company, as
collateral agent for Financial Security pursuant to this Agreement and,
thereafter, any successor Collateral Agent named pursuant to this Agreement.
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"Collateral Assignment" means, with respect to any Contracts, the
original instrument of collateral assignment of such Contracts by the Company,
as Seller, to the Collateral Agent, substantially in the form included in
Exhibit A hereto.
"Controlling Party" means Financial Security so long as no
Financial Security Insolvency shall have occurred and no Financial Security
Default shall have occurred and be continuing and, at any other time, the
Indenture Trustee.
"Event of Default" has the meaning set forth in Section 7.01
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Financial Security's Authorized Agent" means each Authorized
Officer of Financial Security and each other Person that Financial Security
designates as its authorized agent with notice to the Company.
"Indemnification Agreement" means the Indemnification Agreement,
dated as of the date hereof, among the Company, WFS, Financial Security and the
Representative.
"Indenture Property" means the property pledged to the Indenture
Trustee on behalf of the Noteholders pursuant to the Indenture.
"Independent Accountant" means an independent accountant within
the meaning of the Securities Act and the Exchange Act.
"Late Payment Rate" means the greater of a per annum rate equal
to 3% in excess of (i) Financial Security's cost of funds, determined on a
monthly basis, or (ii) the arithmetic average of the prime or base lending rates
publicly announced by The Chase Manhattan Bank, N.A. (New York, New York) and
Citibank, N.A. (New York, New York), as in effect on the last day of the month
for which interest is being computed, but in no event greater than the maximum
rate permitted by law.
"Note Policy" means the financial guaranty insurance policy,
including and endorsements thereto, issued by Financial Security with respect to
the Notes, substantially in the form attached as Exhibit B-2 hereto.
"Notice Address" means
(a) as to the Company:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) as to WFS:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
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(c) as to WII:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
(d) as to the Trust:
WFS Financial 1999-C Owner Trust
c/o Chase Manhattan Bank Delaware
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Department
(e) as to Financial Security:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance Department
Telecopier Nos.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(in each case in which the notice or other communication
to Financial Security refers to an Event of Default or a
claim under the Policy or is a notice or other
communication as to which a failure on the part of
Financial Security to respond shall be deemed to
constitute consent or acceptance, then with a copy to the
attention of the Senior Vice President - Surveillance)
(f) as to the Collateral Agent:
Four Albany ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department - Asset Backed Group
(g) as to the Proceeds Agent:
Four Albany ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department - Asset Backed Group
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(h) as to the Indenture Trustee:
Four Albany ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department - Asset Backed Group
"Obligations" has the meaning set forth in Section 4.01 hereof.
"Owner Trustee" means Chase Manhattan Bank Delaware or its
successors in interest, acting not individually but solely on owner trustee
under the Trust Agreement.
"Policies" means the Note Policy and the Certificate Policy.
"Premium" means the premium payable to Financial Security by the
Company as consideration for the issuance of the Policies, as set forth in a
letter agreement between the Company and Financial Security.
"Proceeds Agent" means, initially, Bankers Trust Company, as
proceeds agent for Financial Security and, thereafter, any successor appointed
by the Indenture Trustee and Financial Security.
"Prospectus" has the meaning set forth in Section 2.07(g) of this
Agreement.
"Registration Statement" has the meaning set forth in Section
2.07(g) of this Agreement.
"Representative" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, as representative of the several Underwriters.
"Rules and Regulations" has the meaning set forth in Section
2.07(g) of this Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of the date hereof, among the Company, WFS and the Trust, as
the same may be amended or modified from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Assignments" means the Assignments, as such term is
defined in the Sale and Servicing Agreement.
"Spread Account" means the Spread Account established by the
Company, pursuant to the Sale and Servicing Agreement, in favor of the Indenture
Trustee on behalf of the Holders of Notes and Certificates and as Collateral
Agent for Financial Security.
"Spread Account Collateral" means (i) the Spread Account Initial
Deposit, (ii) all other amounts deposited in or credited to the Spread Account
from time to time under the Sale and Servicing Agreement, (iii) all Eligible
Investments made with amounts on deposit in such Account, and (iv) all earnings
and distributions on, and proceeds of, any and all of the foregoing.
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"Transaction Agreements" means this Agreement, the WFS
Assignments, the Seller Assignments, the Collateral Assignment, the Sale and
Servicing Agreement, the Trust Agreement, the Certificate of Trust, the
Indenture, the Administration Agreement, the Underwriting Agreement, the
Subservicing Agreement, the Indemnification Agreement and the RIC.
"Trust Agreement" means the Trust Agreement, dated as of _____
__, 1999, as amended and restated as of _____ __, 1999, among the Company, WFS,
WII, Financial Security and Chase Manhattan Bank Delaware, as Owner Trustee.
"Underwriter Information" has the meaning set forth in Section
3.06(a)(i) of this Agreement.
"Underwriters" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and each other institution, if any, named as an underwriter in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
____ __, 1999, among the Company, WFS and the Representative.
"Western Entities" means the Company, WFS and WII.
"WFAL2" means Western Financial Auto Loans 2, Inc., a California
corporation.
"WFS Assignments" means, with respect to the Contracts, the
original instrument or instruments of assignment of such Contracts by WFS, as
seller, to the Company, substantially in the form included in Exhibit A hereto.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations and Warranties of the Trust. The
Trust represents and warrants to Financial Security as follows:
(a) Due Organization and Qualification. The Trust is duly formed
and validly existing as a Delaware statutory business trust and is in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business and had at all relevant times,
and has, power, authority, and legal right to acquire the Contracts; the Trust
is duly qualified to do business, is in good standing and has obtained all
necessary licenses, permits, charters, registrations and approvals (together,
"approvals") necessary for the conduct of its business as described in the
Prospectus and the performance of its obligations under the Transaction
Agreements, in each jurisdiction in which the failure to be so qualified or to
obtain such approvals would render the Contracts in such jurisdiction or any
Transaction Agreement unenforceable in any respect or would otherwise have a
material adverse effect upon the Trust; the Trust holds all material licenses,
certificates and permits from all governmental authorities necessary for the
conduct of its business as presently conducted.
(b) Power and Authority. The Trust has all necessary trust power
and authority to conduct its business as presently conducted; the Trust has the
power and authority to execute and deliver this Agreement and each other
Transaction Agreement to which the Trust is a party and to carry out the terms
of each such agreement, and has full power and authority to
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issue the Notes and the Certificates and pledge and assign its assets pursuant
to the Indenture and has duly authorized the issuance of the Notes and
Certificates and the assignment of its assets by all necessary trust
proceedings, and the execution, delivery and performance of this Agreement and
each other Transaction Agreement to which the Trust is a party has been duly
authorized by all necessary action on the part of the Trust.
(c) Valid and Binding Obligations. Each of the Transaction
Agreements to which the Trust is a party constitutes a legal, valid and binding
obligation of the Trust enforceable in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
receivership or other similar laws affecting the enforcement of creditors'
rights generally and (ii) general equitable principles, regardless of whether
such enforceability shall be considered a proceeding in equity or at law. 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 and will evidence the entire beneficial
ownership interest in the Trust. The Notes, when executed, authenticated and
delivered in accordance with the Indenture, will be entitled to the benefits of
the Indenture and will constitute legal, valid and binding obligations of the
Trust, enforceable in accordance with their terms.
(d) Noncontravention. The consummation of the transaction
contemplated by this Agreement and by each other Transaction Agreement to which
the Trust is a party, and the fulfillment of the terms hereof and thereof shall
not conflict with, result in any breach of any of the terms and provisions of,
nor constitute a default (nor an event which, with the giving of notice or
passage of time, or both, would constitute a default) under the Certificate of
Trust or the Trust Agreement, or any indenture, agreement or other instrument to
which the Trust is a party or by which it shall be bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than this
Agreement and the Collateral Assignment); nor violate any law or any order,
rule, or regulation applicable to the Trust of any court or of any federal or
state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Trust or its properties.
(e) No Consents. No consent, license, approval or authorization
from, or registration, or declaration with, any governmental authority, bureau
or agency, nor any consent, approval, waiver or notification of any creditor,
lessor or other non-governmental person, is required in connection with the
execution, delivery and performance by the Trust of this Agreement or of any
other Transaction Agreement to which the Trust is a party, except (in each case)
such as have been obtained and are in full force and effect.
(f) Pending Litigation or Other Proceeding. To the Trust's best
knowledge, there are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Trust or its properties: (A)
asserting the invalidity of this Agreement or any other Transaction Agreement to
which the Trust is a party; (B) seeking to prevent the issuance of the Notes or
the Certificates, or the consummation of the transactions contemplated by any of
the Transaction Agreements to which the Trust is a party; (C) seeking any
determination or ruling that might materially and adversely affect the validity
or enforceability of, this Agreement or any other
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Transaction Agreement to which the Trust is a party, or (D) involving the Trust
and which might adversely affect the federal or state tax attributes of the
Notes, the Certificates or the Trust.
(g) Incorporation of Representations and Warranties. The
representations and warranties of the Trust set forth in each Transaction
Document are (in each case) true and correct as if set forth herein.
(h) Security Interest in Contracts. This Agreement, together with
possession of the Collateral by the Master Servicer pursuant to the Sale and
Servicing Agreement and the filing referred to below, creates as security for
the Company's obligations under this Agreement a security interest in favor of
the Collateral Agent, as collateral agent for Financial Security, in each item
of the Collateral, as constituted as of the Closing Date; such security interest
has been perfected and is a valid, binding and enforceable first priority
security interest, subject only, to the extent set forth in Section 5.01(d)
hereof, to the interest of the Indenture Trustee with respect to the Indenture
Property and the Securityholders; a financing statement with respect to the
Contracts has been filed with the California Secretary of State pursuant to the
California UCC, and the marking required by Section 3.01(b)(xvi) of the Sale and
Servicing Agreement has been made on each Contract, except to the extent (if
any) that Financial Security has waived in writing compliance with such
requirement; no other filings in any jurisdiction or any other actions are
necessary to perfect the security interest of the Collateral Agent, as
collateral agent for Financial Security, in the Collateral, as constituted as of
the Closing Date, as against any third parties.
(i) Security Interest in Other Collateral. Assuming the
acquisition of Eligible Investments in accordance with the Sale and Servicing
Agreement, such Eligible Investments will be subject to a valid, binding and
enforceable first priority security interest in favor of the Collateral Agent,
as collateral agent for Financial Security, subject only, to the extent set
forth in Section 5.01(d) hereof, to the interest of the Indenture Trustee with
respect to the Indenture Property and the Securityholders; assuming deposit of
each check constituting proceeds of the Contracts in the Collection Account or
Holding Account, as applicable, within ten days of receipt of such check by the
Master Servicer, such check will be subject to a valid, first priority perfected
security interest in favor of the Collateral Agent, subject, to the extent set
forth in Section 5.01(d) hereof, to the interest of the Indenture Trustee with
respect to the Indenture Property and the Securityholders; at such time as it is
received by the Master Servicer and until deposited in the Collection Account or
Holding Account, as applicable; the proceeds of such deposited check that remain
in the Collection Account or the Holding Account will be subject to a valid,
first priority security interest in favor of the Collateral Agent, subject, to
the extent set forth in Section 5.01(d) hereof, to the interest of the Trust
under the Sale and Servicing Agreement.
Section 2.02. Affirmative Covenants of the Trust. The Trust
hereby covenants and agrees with Financial Security that, at all times during
the term of this Agreement:
(a) Compliance with Agreements. The Trust will comply with all
terms and conditions of this Agreement and each other Transaction Agreement to
which it is a party. The Trust will not cause or permit to become effective any
amendment to or modification of any of the Transaction Agreements unless
Financial Security shall have previously approved in writing the form of such
amendment or modification.
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(b) Financial Statements; Accountants' Reports; Other
Information. The Trust shall keep or cause to be kept proper books and records
in which full and correct entries shall be made of financial transactions and
the assets and business of the Trust in accordance with generally accepted
accounting principles consistently applied. The Trust shall furnish to Financial
Security, simultaneously with the delivery of such documents to the Indenture
Trustee, the Noteholders or the Certificateholders, as the case may be, copies
of all reports, certificates, statements, financial statements or notices
furnished to the Indenture Trustee, the Noteholders or the Certificateholders,
as the case may be, pursuant to the Transaction Agreements.
(c) Certificate of Compliance. The Trust shall deliver to
Financial Security concurrently with the delivery of the financial statements
required pursuant to paragraph (b) above, a certificate signed by an Authorized
Officer of the Administrator stating that:
(i) a review of the Trust's performance under this Agreement
and the other Transaction Agreements to which the Trust is a party
during such period has been made under such officer's supervision; and
(ii) to the best of such officer's knowledge based upon such
review, the Trust has fulfilled all its obligations under this Agreement
and the other Transaction Agreements to which the Trust is a party
during such period, or, if there has been a default of any such
obligation, specifying each such default known to such officer and the
nature and status thereof.
(d) Access to Records; Discussions with Officers and Accountants.
The Trust shall, upon the reasonable request of Financial Security, permit
Financial Security's Authorized Agent at reasonable times (i) to inspect such
books and records of the Trust as they may relate to the Notes, the Certificates
and the obligations of the Trust under this Agreement and the other Transaction
Agreements to which the Trust is a party; and (ii) to discuss the affairs,
finances and accounts of the Trust with any of its respective officers,
directors and representatives, including its Independent Accountants.
(e) Financing Statements and Further Assurances. The Trust will
file all necessary financing statements, assignments or other instruments, and
any amendments or continuation statements relating thereto, necessary to be kept
and filed in such manner and in such places as may be required by law to
preserve and protect fully the lien and security interest in, and all rights of
the Collateral Agent with respect to the Collateral, and the Trust shall, upon
the request of Financial Security, from time to time, execute and deliver and,
if necessary, file such further instruments and take such further action as may
be reasonably necessary to effectuate the provisions of this Agreement or to
protect the security interest of the Collateral Agent in the Collateral.
(f) Retirement of Notes and Certificates. The Trust shall, upon
retirement of the Certificates and upon retirement of the Notes furnish to
Financial Security a notice of such retirement, and, upon such retirement and
the expiration of the term of the applicable Policy, to surrender the applicable
Policy to Financial Security for cancellation.
(g) Maintenance of Separate Existence. The Trust shall at all
times hold itself out to the public, including the Company, WFS and the Bank,
under the Trust's own name and as a separate and distinct entity from the
Company, WFS and the Bank. The Trust shall maintain
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trust records and books of account separate from those of the Company, WFS and
the Bank, shall not commingle its assets with any other Person (except to the
limited extent (if any) permitted by the approval of Financial Security) and
shall obtain proper authorization from its equity owners of all trust action in
accordance with applicable law. The Trust shall maintain an arm's-length
relationship with the Bank, the Company and WSF and each Affiliate of any of
them.
(h) Compliance with Article 76 of New York Insurance Law. The
Trust shall ensure that the Prospectus, and any supplements or amendments
thereto, and every preliminary prospectus delivered with respect to the Notes
and the Certificates, clearly disclose that the Policies are not covered by the
property/casualty insurance security fund specified in Article 76 of the New
York Insurance Law.
(i) Tax Matters. The Trust will take all actions necessary to
ensure that the Trust is taxable as a partnership for federal and state income
tax purposes and not as an association (or publicly traded partnership), taxable
as a corporation.
Section 2.03. Negative Covenants of the Trust. The Trust agrees
and covenants with Financial Security that at all times during the term of this
Agreement:
(a) Amendments to Organizational Documents. The Trust shall not
amend, supplement or otherwise modify or cause to permit any amendment,
supplement or other modification of, any of the provisions of the Certificate of
Trust or the Trust Agreement without the prior written consent of Financial
Security.
(b) No Liens. Without the prior written consent of Financial
Security, the Trust shall not create, incur, assume or suffer to exist any
mortgage, deed of trust, security interest, assignment, deposit arrangement or
other preferential arrangement, charge or encumbrance (including without
limitation any conditional sale or other title retention agreement or finance
lease) of any nature upon or with respect to any of its properties or assets,
now owned or hereafter acquired, or sign or file under the Uniform Commercial
Code of any jurisdiction any financing statement that names the Trust as debtor,
or sign any security agreement authorizing any secured party thereunder to file
such a financing statement, except as contemplated in the Transaction
Agreements.
(c) Creation of Indebtedness. Without the prior written consent
of Financial Security, the Trust shall not create, incur, assume or suffer to
exist any indebtedness other than indebtedness guaranteed or approved in writing
by Financial Security, except as contemplated in the Transaction Agreements.
(d) Guarantees, Etc. Without the prior written consent of
Financial Security, the Trust shall not assume, guarantee, endorse or otherwise
be or become directly or contingently liable for the obligations of any Person
by, among other things, agreeing to purchase any obligation of another Person,
agreeing to advance funds to such Person or causing or assisting such Person to
maintain any amount of capital.
(e) Subsidiaries. Without the prior written consent of Financial
Security, the Trust shall not form, or cause to be formed, any Subsidiaries.
(f) Insolvency. The Trust shall not commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to
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bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, consolidation or
other relief with respect to it or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets or make a general assignment for the benefit of
its creditors. The Trust shall not take any action in furtherance of, or
indicating the consent to, approval of, or acquiescence in any of the acts set
forth above. The Trust shall not admit in writing its inability to pay its
debts.
(g) Impairment of Rights. The Trust shall not take any action, or
fail to take any action that will interfere with the enforcement of any rights
under this Agreement or the other Transaction Agreements.
(h) Successor Parties. The Trust will not remove or replace, or
cause to be removed or replaced, the Master Servicer, the Indenture Trustee, the
Owner Trustee or the Administrator.
Section 2.04. Representations and Warranties of WII. WII
represents and warrants to Financial Security as follows:
(a) Due Organization. WII is a corporation duly organized,
validly existing and in good standing under the laws of the State of California,
with power and authority to own its properties and to conduct its business and
had at all relevant times, and has, power, authority, and legal right to
acquire, pledge and sell the Contracts; WII is duly qualified to do business as
a foreign corporation 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 the business or
properties of WII; WII holds all material licenses, certificates and permits
from all governmental authorities necessary for the conduct of its business as
presently conducted. WII's principal place of business, chief executive office
and the office where it keeps its records is located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) Corporate Power and Authority. WII has full right, power and
authority to own its properties and to conduct its business as presently
conducted; WII has the power and authority to execute and deliver this Agreement
and each other Transaction Agreement to which WII is a party and to carry out
the terms of each such agreement.
(c) Valid and Binding Obligations. Each of the Transaction
Agreements to which WII is a party constitutes a legal, valid, and binding
obligation of WII, enforceable in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
receivership or other similar laws affecting the enforcement of creditors'
rights generally and (ii) general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding in equity or at law.
(d) Noncontravention. The consummation of the transactions
contemplated by this Agreement and by each other Transaction Agreement to which
WII is a party and the fulfillment of the terms hereof and thereof shall not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute a default (nor an event which, with the giving of notice or passage
of time, or both, would constitute a default) under, the articles of
incorporation
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or by-laws of WII, or any indenture, agreement, or other instrument to which WII
is a party or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, or other instrument; nor violate any law or any
order, rule, or regulation applicable to WII of any court or of any federal or
state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over WII or its properties.
(e) No Consents. No consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency, nor any consent, approval, waiver or notification of any creditor,
lessor or other non-governmental person, is required in connection with the
execution, delivery and performance by WII of this Agreement or of any other
Transaction Agreement to which WII is a party, except (in each case) such as
have been obtained and are in full force and effect.
(f) Pending Litigation or Other Proceeding. To WII's best
knowledge, there are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over WII or its properties: (A) asserting
the invalidity of this Agreement, any other Transaction Agreement to which WII
is a party, the Notes or the Certificates, (B) seeking to prevent the issuance
of the Notes or the Certificates or the consummation of any of the transactions
contemplated by any of the Transaction Agreements to which WII is a party, (C)
seeking any determination or ruling that might materially and adversely affect
the performance by WII of its obligations under, or the validity or
enforceability of, this Agreement or any other Transaction Agreement to which
WII is a party, or (D) involving WII and which might adversely affect the
federal income tax attributes of the Notes, the Certificates or the Trust.
(g) Incorporation of Representations and Warranties. All of the
representations and warranties made by WII in the Transaction Agreements are
incorporated herein as if set forth herein and each such representation and
warranty is true and correct as of the Closing Date.
Section 2.05. Affirmative Covenants of WII. WII covenants and
agrees with Financial Security that, at all times during the term of this
Agreement:
(a) Compliance with Agreements. WII will comply with all terms
and conditions of this Agreement and each other Transaction Agreement to which
it is a party. WII will not cause or permit to become effective any amendment to
or modification of the Transaction Agreements unless Financial Security shall
have previously approved in writing the form of such amendment or modification.
(b) Financial Statements, Accountants' Reports, Other
Information. WII shall keep proper books and records, in which full and correct
entries shall be made of financial transactions and the assets and business of
WII in accordance with generally accepted accounting principles consistently
applied. WII shall furnish to Financial Security, simultaneously with the
delivery of such documents to the Owner Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders, as the case may be, copies of all
reports, certificates, statements or notices furnished to the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders, as the case may
be, pursuant to the Sale and Servicing Agreement.
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(c) Certificate of Compliance. WII shall deliver to Financial
Security, concurrently with the delivery of the financial statements required
pursuant to paragraph (b) above, a certificate signed by an Authorized Officer
of WII stating that:
(i) a review of WII's performance under this Agreement and the
other Transaction Agreements to which WII is a party during such period
has been made under such officer's supervision; and
(ii) to the best of such officer's knowledge, based upon such
review, WII has fulfilled all its obligations under this Agreement and
the other Transaction Agreements to which WII is a party during such
period, or, if there has been a default of any such obligation,
specifying each such default known to such officer and the nature and
status thereof.
(d) Access to Records; Discussions With Officers and Accountants.
WII shall, upon the reasonable request of Financial Security, permit Financial
Security's Authorized Agent at reasonable times (i) to inspect such books and
records of WII as may relate to the Notes, the Certificates and the obligations
of WII under this Agreement and the other Transaction Agreements to which WII is
a party; and (ii) to discuss the affairs, finances and accounts of WII with any
of its respective officers, directors and representatives, including its
Independent Accountants.
(e) Maintain Licenses. WII shall maintain all licenses, permits,
charters and registrations that are material to the performance by WII of its
obligations under the Transaction Agreements to which it is a party or by which
WII is bound.
(f) Maintain Existence; Merger. WII shall keep in full effect its
existence, rights and franchises under the laws of the State of California, and
shall at all times continue to be duly organized, duly qualified and duly
authorized (as described in Sections 2.04(a) and (b) hereof) and shall conduct
its business in accordance with the terms of its corporate charter and bylaws.
WII shall not consolidate with or merge into any other Person or convey,
transfer or lease substantially all of its assets as an entirety to any Person
unless the Person formed by such consolidation or into which WII has merged or
the Person which acquires by conveyance, transfer or lease substantially all the
assets of WII as an entirety, can lawfully perform the obligations of WII
hereunder and executes and delivers to the Owner Trustee an agreement, in form
and substance reasonably satisfactory to the Owner Trustee and Financial
Security, which contains an assumption by such Person of the due and punctual
performance and satisfaction of each covenant and condition to be performed or
satisfied by WII under this Agreement.
(g) Maintenance of Separate Corporate Existence. WII shall at all
times hold itself out to the public, including the Company, WFS and the Bank,
under WII's own name and as a separate and distinct entity from the Company, WFS
and the Bank. At all times at least one director and one executive officer of
WII (or one individual serving in both capacities) shall be a Person who is not
a director, officer or employee of any Person owning beneficially more than 10%
of the outstanding common stock of WII. WII shall maintain separate corporate
records and books of account from those of the Company, WFS and the Bank, shall
not commingle its assets with any other Person (except to the limited extent (if
any) permitted by the approval of Financial Security) and shall authorize its
corporate actions in accordance with applicable law. WII shall not engage in
business transactions with any of its Affiliates on terms and conditions
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less favorable to WII than those available to WII for comparable transactions
from Persons who are not Affiliates of WII. WII shall maintain its chief
executive office, principal place of business and the office where it keeps its
records in the State of California and separate and apart from any office of the
Company, the Bank, the Master Servicer or any Affiliate of any of them.
(h) Retirement of Notes and Certificates. WII shall cause the
Trust, upon retirement of the Certificates, to furnish to Financial Security a
notice of such retirement, and, upon such retirement and the expiration of the
term of the Certificate Policy, to surrender the Certificate Policy to Financial
Security for cancellation.
(i) Incorporation of Covenants. WII agrees to comply with each of
the covenants of WII set forth in the Transaction Agreements and hereby
incorporates such covenants by reference as if each were set forth herein.
(j) Tax Matters. As of the Closing Date, the Trust is, and shall
remain during the term of this Agreement, taxable as a partnership for federal
and state income tax purposes and not as an association (or publicly traded
partnership) taxable as a corporation.
(k) Certificates. WII shall purchase from the Underwriters and
thereafter retain beneficial and record ownership of Certificates representing
at least 1% of the Certificate Balance.
Section 2.06. Negative Covenants of WII. WII agrees and covenants
with Financial Security that at all times during the term of this Agreement:
(a) Amendments to Organizational Documents. WII shall not amend,
supplement or otherwise modify, or cause to permit any amendment, supplement or
other modification of, Articles 2 or 4 of its charter (or any other Articles of
its charter that relate to the matters addressed by such Articles 2 or 4) or its
bylaws without the prior written consent of Financial Security.
(b) No Liens. Without the prior written consent of Financial
Security, WII shall not create, incur, assume or suffer to exist any mortgage,
deed of trust, security interest, assignment, deposit arrangement or other
preferential arrangement, charge or encumbrance (including, without limitation,
any conditional sale or other title retention agreement or finance lease) of any
nature upon or with respect to any of its properties or assets, now owned or
hereafter acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction any financing statement that names WII as a debtor, or sign any
security agreement authorizing any secured party thereunder to file such
financing statement.
(c) Creation of Indebtedness. Without the prior written consent
of Financial Security, WII shall not create, incur, assume or suffer to exist
any indebtedness other than indebtedness guaranteed or approved in writing by
Financial Security.
(d) Guarantees, Etc. Without the prior written consent of
Financial Security, WII shall not assume, guarantee, endorse or otherwise be or
become directly or contingently liable for the obligations of any Person by,
among other things, agreeing to purchase any obligation of another Person,
agreeing to advance funds to such Person or causing or assisting such Person to
maintain any amount of capital.
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(e) Subsidiaries. Without the prior written consent of Financial
Security, WII shall not form, or cause to be formed, any subsidiaries.
(f) Insolvency. WII shall not commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seek appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its assets, or make a general
assignment for the benefit of its creditors. WII shall not take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in
any of the acts set forth above. WII shall not be unable to, or admit in writing
its inability to, pay its debts.
(g) Impairment of Rights. WII shall not take any action or fail
to take any action that will interfere with the enforcement of any rights under
this Agreement or the other Transaction Agreements.
(h) Insolvency of Trust. WII shall not, for any reason, institute
proceedings for the Trust to be adjudicated a bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against the Trust, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to the bankruptcy of the Trust, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Trust or a substantial part of
the property of the Trust or cause or permit the Trust to make any assignment
for the benefit of creditors, or admit in writing the inability of the Trust to
pay its debt generally as they become due, or declare or effect a moratorium on
the debt of the Trust or take any action in furtherance of any such action.
(i) No Withdrawal. WII shall not, for any reason, withdraw or
attempt to withdraw from the Trust Agreement, dissolve, institute proceedings
for it to be adjudicated a bankrupt or insolvent, or consent to the institution
of bankruptcy or insolvency proceedings against it, or file a petition seeking
or consenting to reorganize or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of it or a
substantial part of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debts generally as they
become due, or declare or effect a moratorium on its debt or take any action in
furtherance of any such action.
(j) Compliance with Transaction Agreements and similar
transactions. The provisions of subsections 2.06(c), (d) and (g),
notwithstanding, WII's execution and performance of its covenants and
obligations under the Transaction Agreements and under any similar documents
executed in connection with one or more other owner trust transactions as to
which Financial Security has issued one or more insurance policy similar to the
Policies shall not require the prior written consent of Financial Security and
shall not be deemed to impair the rights of WII under this Agreement or the
other Transaction Agreements.
Section 2.07. Representations and Warranties of the Company. The
Company represents and warrants to Financial Security as follows:
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(a) Due Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, with power and authority to own its properties and to conduct its
business and had at all relevant times, and has, power, authority, and legal
right to acquire, pledge and sell the Contracts; the Company is duly qualified
to do business as a foreign corporation 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 the business or properties of the Company; the Company holds all
material licenses, certificates and permits from all governmental authorities
necessary for the conduct of its business as presently conducted. The Company's
principal place of business, chief executive office and the office where it
keeps its records is located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
(b) Corporate Power and Authority. The Company has full right,
power and authority to own its properties and to conduct its business as
presently conducted; the Company has the power and authority to execute and
deliver this Agreement and each other Transaction Agreement to which the Company
is a party and to carry out the terms of each such agreement, and has full power
and authority to sell and assign the property to be sold and assigned to and
deposited with the Owner Trustee as part of the Trust and has duly authorized
such sale and assignment to the Trustee by all necessary corporate action; and
the execution, delivery, and performance of this Agreement and each other
Transaction Agreement to which the Company is a party has been duly authorized
by the Company by all necessary corporate action.
(c) Valid and Binding Obligations. Each of the Transaction
Agreements to which the Company is a party constitutes a legal, valid, and
binding obligation of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity, regardless of
whether such enforceability shall be considered in a proceeding in equity or at
law. 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 and will evidence the entire beneficial
ownership in the Trust. The Notes when executed, authenticated and delivered in
accordance with the Indenture, will be entitled to the benefits of the Indenture
and will constitute legal, valid and binding obligations of the Trust,
enforceable in accordance with their terms.
(d) Noncontravention. The consummation of the transactions
contemplated by this Agreement and by each other Transaction Agreement to which
the Company is a party and the fulfillment of the terms hereof and thereof shall
not conflict with, result in any breach of any of the terms and provisions of,
nor constitute a default (nor an event which, with the giving of notice or
passage of time, or both, would constitute a default) under, the articles of
incorporation or by-laws of the Company, or any indenture, agreement, or other
instrument to which the Company is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, or other instrument
(other than this Agreement and the Collateral Assignment); nor violate any law
or any order, rule, or regulation applicable to the Company of any court or of
any federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Company or its
properties.
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(e) No Consents. No consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency, nor any consent, approval, waiver or notification of any creditor,
lessor or other non-governmental person, is required in connection with the
execution, delivery and performance by the Company of this Agreement or of any
other Transaction Agreement to which the Company is a party, except (in each
case) such as have been obtained and are in full force and effect.
(f) Pending Litigation or Other Proceeding. To the Company's best
knowledge, there are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Company or its properties: (A)
asserting the invalidity of this Agreement, any other Transaction Agreement to
which the Company is a party, the Notes or the Certificates, (B) seeking to
prevent the issuance of the Notes or the Certificates or the consummation of any
of the transactions contemplated by any of the Transaction Agreements to which
the Company is a party, (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement or any
other Transaction Agreement to which the Company is a party, or (D) involving
the Company and which might adversely affect the federal income tax attributes
of the Notes, the Certificates or the Trust.
(g) Registration Statement; Prospectus. The Company has filed
with the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3, and a related preliminary prospectus for the registration
of the Certificates and the Notes under the Securities Act, has filed such
amendments thereto, if any, and such amended preliminary prospectuses as may
have been required to the date hereof, and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including in each case all documents, if any,
incorporated by reference therein and the information, if any, deemed to be part
thereof pursuant to the rules and regulations of the Commission under the
Securities Act (the "Rules and Regulations")), as from time to time amended or
supplemented pursuant to the Securities Act or otherwise, are hereinafter
referred to as the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided by the Company for use
in connection with the offering of the Certificates or the Notes which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became effective (whether or not such revised prospectus is required
to be filed by the Company pursuant to Rule 424 of the Rules and Regulations),
the term "Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Underwriters for such use. As of the date
hereof, the Registration Statement and Prospectus filed under the Securities Act
or pursuant to the Rules and Regulations complies in all material respects with
the Securities Act and the Rules and Regulations, and the Registration Statement
at the time it became effective and at all times subsequent thereto complied,
and at each time that the Prospectus is provided to the Underwriters for use in
connection with the offering or sale of any Certificate will comply, in all
material respects with the requirements of the Securities Act and the Rules and
Regulations. The Registration Statement and the Prospectus at the time the
Registration Statement became effective did not and on the date hereof does not,
contain an 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 at the time it was
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filed under the Securities Act or the Rules and Regulations and at the time it
was first provided to the Underwriters for use in connection with the offering
of the Certificates and the Notes did not, and on the Closing Date does 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, except that the representations and warranties in this subparagraph
shall not apply to statements in or omissions from the Registration Statement or
the Prospectus or any preliminary prospectus made in reliance upon information
furnished to the Company in writing by Financial Security expressly for use
therein.
(h) Incorporation of Representations and Warranties. All of the
representations and warranties made by the Company as Seller in Section 3.01(b)
of the Sale and Servicing Agreement and as Depositor in, Section 2.10 of the
Trust Agreement and in the Underwriting Agreement are incorporated herein as if
set forth herein and each such representation and warranty is true and correct
as of the Closing Date.
(i) Security Interest in Contracts. This Agreement, together with
possession of the Collateral by the Master Servicer pursuant to the Sale and
Servicing Agreement and the filing referred to below, creates as security for
the Company's obligations under this Agreement a security interest in favor of
the Collateral Agent, as collateral agent for Financial Security, in each item
of the Collateral, as constituted as of the Closing Date; such security interest
has been perfected and is a valid, binding and enforceable first priority
security interest, subject only, to the extent set forth in Section 5.01(d)
hereof, to the interest of the Indenture Trustee with respect to the Indenture
Property and the Securityholders; a financing statement with respect to the
Contracts has been filed with the California Secretary of State pursuant to the
California UCC, and the marking required by Section 3.01(b)(xvi) of the Sale and
Servicing Agreement has been made on each Contract, except to the extent (if
any) that Financial Security has waived in writing compliance with such
requirement; no other filings in any jurisdiction or any other actions are
necessary to perfect the security interest of the Collateral Agent, as
collateral agent for Financial Security, in the Collateral, as constituted as of
the Closing Date, as against any third parties.
(j) Security Interest in Other Collateral. Assuming the
acquisition of Eligible Investments in accordance with the Sale and Servicing
Agreement, such Eligible Investments will be subject to a valid, binding and
enforceable first priority security interest in favor of the Collateral Agent,
as collateral agent for Financial Security, subject only, to the extent set
forth in Section 5.01(d) hereof, to the interest of the Indenture Trustee with
respect to the Indenture Property and the Securityholders; assuming deposit of
each check constituting proceeds of the Contracts in the Collection Account or
Holding Account, as applicable, within ten days of receipt of such check by the
Master Servicer, such check will be subject to a valid, first priority perfected
security interest in favor of the Collateral Agent, subject, to the extent set
forth in Section 5.01(d) hereof, to the interest of the Indenture Trustee with
respect to the Indenture Property and the Securityholders; at such time as it is
received by the Master Servicer and until deposited in the Collection Account or
Holding Account, as applicable; the proceeds of such deposited check that remain
in the Collection Account or the Holding Account will be subject to a valid,
first priority security interest in favor of the Collateral Agent, subject, to
the extent set forth in Section 5.01(d) hereof, to the interest of the Trust
under the Sale and Servicing Agreement.
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(k) Valid Transfer of Contracts. The Sale and Servicing Agreement
and the Seller Assignments constitute a valid sale, transfer and assignment of
the Contracts, enforceable against creditors of and purchasers from the Company,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity, regardless of
whether such enforceability shall be considered in a proceeding in equity or at
law.
(l) Financial Information. The audited financial statements of
the Company for the fiscal year ended December 31, 1998 and the unaudited
financial statements of the Company for the fiscal quarter ended March 31, 1999,
copies of which have been furnished to Financial Security, as of the dates and
for the periods referred to therein (i) are true, complete and correct in all
material respects, (ii) fairly present the financial condition of the Company
and the results of operations and changes in financial position of the Company
and (iii) have been prepared in accordance with generally accepted accounting
principles consistently applied (subject, in the case of the quarterly financial
statements, to normal year-end adjustments), and such financial statements
indicate that the Company is solvent and will not be rendered insolvent by the
execution, delivery and performance of the Transaction Agreements. Since
September 30, 1998, there has been no material adverse change in the business,
financial condition or operations of the Company.
Section 2.08. Representations and Warranties of WFS. WFS
represents and warrants to Financial Security as follows:
(a) Due Organization. WFS is duly organized and validly existing
as a licensed consumer finance company organized and existing and in good
standing under the laws of the State of California, with power and authority to
own its properties and to conduct its business and had at all relevant times,
and has, power, authority, and legal right to acquire and own the Contracts and
is duly qualified to do business as a foreign corporation in good standing, and
shall have obtained all necessary licenses and approvals, in all jurisdictions
in which the ownership or lease of property or the conduct of its business
requires such qualification.
(b) Corporate Power and Authority. WFS has the power and
authority to execute and deliver this Agreement and each other Transaction
Agreement to which WFS is a party and to carry out the terms of each such
agreement, and has full power and authority to sell and assign the property to
be sold and assigned to the Company for inclusion in the Trust and the Spread
Account and has duly authorized such sale and assignment to the Company by all
necessary corporate action; and the execution, delivery, and performance of this
Agreement and each other Transaction Agreement to which WFS is a party has been
duly authorized by WFS by all necessary corporate action.
(c) Valid and Binding Obligations. The WFS Assignments constitute
a valid sale, transfer, and assignment of the Contracts to the Company,
enforceable against creditors of and purchasers from WFS, and each of the
Transaction Agreements to which WFS is a party constitutes a legal, valid, and
binding obligation of WFS, enforceable in accordance with its terms, except as
such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity, regardless of
whether such enforceability shall be considered in a proceeding in equity or at
law. The Certificates, when executed, authenticated and delivered in accordance
with the Trust Agreement, will be validly issued and outstanding
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and entitled to the benefits of the Trust Agreement and will evidence the entire
beneficial ownership in the Trust. The Notes when executed, authenticated and
delivered in accordance with the Indenture, will be entitled to the benefits of
the Indenture and will constitute legal, valid and binding obligations of the
Trust, enforceable in accordance with their terms.
(d) Noncontravention. The consummation of the transactions
contemplated by this Agreement and by each other Transaction Agreement to which
WFS is a party and the fulfillment of the terms hereof and thereof shall not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute a default (nor an event which, with the giving of notice or passage
of time, or both, would constitute a default) under, the articles of
organization or by-laws of WFS, or any indenture, agreement, or other instrument
to which WFS is a party or by which it shall be bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, or other instruments; nor violate any
law or any order, rule, or regulation applicable to WFS of any court or of any
federal or state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over WFS or its properties.
(e) No Consents. No consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency, nor any consent, approval, waiver or notification of any creditor,
lessor or other non-governmental person, is required in connection with the
execution, delivery and performance by WFS of this Agreement or of any other
Transaction Agreement to which WFS is a party, except (in each case) such as
have been obtained and are in full force and effect.
(f) Pending Litigation or Other Proceeding. To WFS's best
knowledge, there are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over WFS or its properties: (A) asserting
the invalidity of this Agreement or any other Transaction Agreement to which WFS
is a party, (B) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Agreements to which WFS is a party, (C)
seeking any determination or ruling that might materially and adversely affect
the performance by WFS of its obligations under, or the validity or
enforceability of, this Agreement or any other Transaction Agreement to which
WFS is a party, or (D) involving WFS and which might adversely affect the
federal income tax attributes of the Certificates.
(g) Affirmation and Incorporation of Certain Representations and
Warranties. WFS represents and warrants to Financial Security that the
representations and warranties of the Company set forth in Section 2.07 hereof,
in the Underwriting Agreement and in Section 3.01(b) of the Sale and Servicing
Agreement and Section 2.10 of the Trust Agreement are (in each case) true and
correct as if set forth herein and that the representations and warranties of
WFS set forth in the Underwriting Agreement and by WFS as Master Servicer set
forth in Section 4.06 of the Sale and Servicing Agreement are (in each case)
true and correct as if set forth herein.
(h) Valid Transfer of Contracts. The WFS Assignments constitute a
valid sale, transfer and assignment of the Contracts to the Company, enforceable
against creditors of and purchasers from WFS, except as such enforceability may
be limited by (i) bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
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(i) Financial Information. The audited consolidated financial
statements of WFS for the fiscal year ended December 31, 1998 and the unaudited
consolidated financial statements of WFS for the fiscal quarter ended March 31,
1999, copies of which have been furnished to Financial Security, as of the dates
and for the periods referred to therein (i) are true, complete and correct in
all material respects, (ii) fairly present the consolidated financial condition
of WFS and the consolidated results of operations and changes in cash flows of
WFS and its consolidated subsidiaries, and (iii) have been prepared in
accordance with generally accepted accounting principles consistently applied
(subject, in the case of the quarterly financial statements, to normal year-end
adjustments), and such financial statements indicate that WFS is solvent and
will not be rendered insolvent by the execution, delivery and performance of the
Transaction Agreements. Since September 30, 1998, there has been no material
adverse change in the business, financial condition or operations of WFS.
Section 2.09. Affirmative Covenants of the Company. The Company
covenants and agrees with Financial Security that, at all times during the term
of this Agreement:
(a) Compliance with Agreements. The Company will comply with all
terms and conditions of this Agreement and each other Transaction Agreement to
which it is a party. The Company will not cause or permit to become effective
any amendment to or modification of the Transaction Agreements unless Financial
Security shall have previously approved in writing the form of such amendment or
modification.
(b) Financial Statements, Accountants' Reports, Other
Information. The Company shall keep proper books and records, in which full and
correct entries shall be made of financial transactions and the assets and
business of the Company in accordance with generally accepted accounting
principles consistently applied. The Company shall furnish to Financial
Security, simultaneously with the delivery of such documents to the Owner
Trustee, Indenture Trustee, the Noteholders or the Certificateholders, as the
case may be, copies of all reports, certificates, statements or notices
furnished to the Owner Trustee, the Noteholders or the Certificateholders, as
the case may be, pursuant to the Transaction Agreements.
(c) Certificate of Compliance. The Company shall deliver to
Financial Security, concurrently with the delivery of the financial statements
required pursuant to paragraph (b) above, a certificate signed by an Authorized
Officer of the Company stating that:
(i) a review of the Company's performance under this Agreement
and the other Transaction Agreements to which the Company is a party
during such period has been made under such officer's supervision; and
(ii) to the best of such officer's knowledge, based upon such
review, the Company has fulfilled all its obligations under this
Agreement and the other Transaction Agreements to which the Company is a
party during such period, or, if there has been a default of any such
obligation, specifying each such default known to such officer and the
nature and status thereof.
(d) Access to Records; Discussions With Officers and Accountants.
The Company shall, upon the reasonable request of Financial Security, permit an
authorized agent of Financial Security at reasonable times (i) to inspect such
books and records of the Company as may relate to the Notes, the Certificates
and the obligations of the Company under this
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Agreement and the other Transaction Agreements to which the Company is a party;
and (ii) to discuss the affairs, finances and accounts of the Company with any
of its respective officers, directors and representatives, including its
Independent Accountants.
(e) Maintain Licenses. The Company shall maintain all licenses,
permits, charters and registrations that are material to the performance by the
Company of its obligations under the Transaction Agreements to which it is a
party or by which the Company is bound.
(f) Financing Statements and Further Assurances. The Company will
file all necessary financing statements, assignments or other instruments, and
any amendments or continuation statements relating thereto, necessary to be kept
and filed in such manner and in such places as may be required by law to
preserve and protect fully the Lien and security interest in and all rights of
Financial Security with respect to the Collateral, subject to the Sale and
Servicing Agreement, and the Company shall, upon the request of Financial
Security, from time to time, execute and deliver and, if necessary, file such
further instruments and take such further action as may be reasonably necessary
to effectuate the provisions of this Agreement or to protect the security
interest of Financial Security, subject to the Sale and Servicing Agreement, in
the Collateral.
(g) Maintain Existence; Merger. The Company shall keep in full
effect its existence, rights and franchises under the laws of the State of
California, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the Contract
Documents and the Transaction Agreements to which the Company is a party. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease substantially all of its assets as an entirety to any Person
unless the Person formed by such consolidation or into which the Company has
merged or the Person which acquires by conveyance, transfer or lease
substantially all the assets of the Company as an entirety, can lawfully perform
the obligations of the Company hereunder and executes and delivers to the Owner
Trustee an agreement, in form and substance reasonably satisfactory to the Owner
Trustee and Financial Security, which contains an assumption by such Person of
the due and punctual performance and satisfaction of each covenant and condition
to be performed or satisfied by the Company under this Agreement.
(h) Maintenance of Separate Corporate Existence. The Company
shall at all times hold itself out to the public, including WFS and the Bank,
under the Company's own name and as a separate and distinct entity from WFS and
the Bank. At all times at least one director and one executive officer of the
Company (or one individual serving in both capacities) shall be a Person who is
not a director, officer or employee of any Person owning beneficially more than
10% of the outstanding common stock of the Company. The Company shall maintain
separate corporate records and books of account from those of WFS and the Bank,
shall not commingle its assets with any other Person (except to the limited
extent (if any) permitted by the approval of Financial Security) and shall
authorize its corporate actions in accordance with applicable law. The Company
shall not engage in business transactions with any of its Affiliates on terms
and conditions less favorable to the Company than those available to the Company
for comparable transactions from Persons who are not Affiliates of the Company.
The Company shall maintain its chief executive office, principal place of
business and the office where it keeps its records in the State of California
and separate and apart from any office of the Master Servicer.
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(i) Compliance with Article 76 of New York Insurance Law. The
Company shall ensure that the Prospectus, and any supplements or amendments
thereto, and every preliminary prospectus delivered with respect to the Notes
and the Certificates, clearly disclose that the Policies are not covered by the
property/casualty insurance security fund specified in Article 76 of the New
York Insurance Law.
Section 2.10. Negative Covenants of the Company. The Company
agrees and covenants with Financial Security that at all times during the term
of this Agreement:
(a) Amendments to Organizational Documents. The Company shall not
amend, supplement or otherwise modify, or cause to permit any amendment,
supplement or other modification of, Articles 2 or 5 of its charter (or any
other Articles of its charter that relate to the matters addressed by such
Article 2 or 5) or its bylaws without the prior written consent of Financial
Security.
(b) No Liens. Without the prior written consent of Financial
Security, the Company shall not create, incur, assume or suffer to exist any
mortgage, deed of trust, security interest, assignment, deposit arrangement or
other preferential arrangement, charge or encumbrance (including, without
limitation, any conditional sale or other title retention agreement or finance
lease) of any nature upon or with respect to any of its properties or assets,
now owned or hereafter acquired, or sign or file under the Uniform Commercial
Code of any jurisdiction any financing statement that names the Company as a
debtor, or sign any security agreement authorizing any secured party thereunder
to file such financing statement.
(c) Creation of Indebtedness. Without the prior written consent
of Financial Security, the Company shall not create, incur, assume or suffer to
exist any indebtedness other than indebtedness guaranteed or approved in writing
by Financial Security.
(d) Guarantees, Etc. Without the prior written consent of
Financial Security, the Company shall not assume, guarantee, endorse or
otherwise be or become directly or contingently liable for the obligations of
any Person by, among other things, agreeing to purchase any obligation of
another Person, agreeing to advance funds to such Person or causing or assisting
such Person to maintain any amount of capital.
(e) Subsidiaries. Without the prior written consent of Financial
Security, the Company shall not form, or cause to be formed, any subsidiaries.
(f) Insolvency. The Company shall not commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seek appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its assets,
or make a general assignment for the benefit of its creditors. The Company shall
not take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in any of the acts set forth above. The Company shall not be
unable to, or admit in writing its inability to, pay its debts.
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(g) Impairment of Rights. The Company shall not take any action
or fail to take any action that will interfere with the enforcement of any
rights under this Agreement or the other Transaction Agreements.
Section 2.11. Affirmative Covenants of WFS. WFS covenants and
agrees with Financial Security that, at all times during the term of this
Agreement:
(a) Compliance With Agreements. WFS will comply with all terms
and conditions of this Agreement and each other Transaction Agreement to which
it is a party. WFS will not cause or permit to become effective any amendment to
or modification of the Transaction Agreements to which it is a party unless
Financial Security shall have previously approved in writing the form of such
amendment or modification.
(b) Financial Statements, Accountants' Reports, Other
Information. WFS shall keep proper books and records, in which full and correct
entries shall be made of financial transactions and the assets and business of
WFS in accordance with generally accepted accounting principles consistently
applied. WFS shall furnish to Financial Security, simultaneously with the
delivery of such documents to the Indenture Trustee, the Noteholders or the
Certificateholders, as the case may be, copies of all reports, certificates,
statements or notices furnished to the Indenture Trustee or the
Certificateholders, as the case may be, pursuant to the Sale and Servicing
Agreement. WFS shall also deliver to Financial Security, simultaneously with the
delivery of such documents to the relevant federal or state department or agency
copies of all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and
periodic reports on Form 8-K required to be filed by WFS with the Securities and
Exchange Commission.
(c) Certificate of Compliance. WFS shall deliver to Financial
Security, concurrently with the delivery of the financial statements required
pursuant to paragraph (b) above, a certificate signed by an Authorized Officer
of WFS stating that:
(i) a review of WFS's performance under this Agreement and the
other Transaction Agreements to which WFS is a party during such period
has been made under such officer's supervision; and
(ii) to the best of such officer's knowledge, based upon such
review, WFS has fulfilled all its obligations under this Agreement and
the other Transaction Agreements to which WFS is a party during such
period, or, if there has been a default of any such obligation,
specifying each such default known to such officer and the nature and
status thereof.
(d) Access to Records; Discussions With Officers and Accountants.
WFS shall, upon the reasonable request of Financial Security, permit Financial
Security's Authorized Agent at reasonable times (i) to inspect such books and
records of WFS as may relate to the Notes, the Certificates and the obligations
of WFS under this Agreement and the other Transaction Agreements to which WFS is
a party; and (ii) to discuss the affairs, finances and accounts of WFS with any
of its respective officers, directors and representatives, including its
Independent Accountants.
(e) Maintain Licenses. WFS shall maintain all licenses, permits,
charters and registrations that are material to the performance by WFS of its
obligations under the Transaction Agreements to which it is a party or by which
WFS is bound.
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(f) Maintain Existence; Merger. WFS shall keep in full effect its
existence, rights and franchises under the laws of the State of California, and
will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Contract Documents
and the Transaction Agreements to which WFS is a party. WFS shall not
consolidate with or merge into any other Person or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless the Person
formed by such consolidation or into which WFS has merged or the Person which
acquires by conveyance, transfer or lease substantially all the assets of WFS as
an entirety, can lawfully perform the obligations of WFS hereunder and executes
and delivers to the Owner Trustee an agreement, in form and substance reasonably
satisfactory to the Owner Trustee and Financial Security, which contains an
assumption by such Person of the due and punctual performance and satisfaction
of each covenant and condition to be performed or satisfied by WFS under this
Agreement.
(g) Subservicing. WFS, as Master Servicer, shall not appoint,
pursuant to Section 4.01 of the Sale and Servicing Agreement, any Subservicer
that has not been approved in advance by Financial Security. WFS as Master
Servicer shall not cause or permit to become effective any Subservicing
Agreement that is in a form that varies substantially from the form thereof set
forth as Exhibit E to the Sale and Servicing Agreement unless the form of such
varying agreement shall have been approved in writing by Financial Security.
(h) No Petition Agreement. WFS covenants and agrees that, for a
period of one year plus one day after payment in full of all amounts payable in
respect of the Notes and the Certificates, it will not institute against, or
join any other Person in instituting against the Company any bankruptcy,
reorganization, arrangement, conservatorship, receivership, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy, receivership or similar law, in connection with any amounts due WFS
(or any Affiliate or parent thereof) under any Transaction Agreement or
otherwise without the prior written consent of Financial Security. The
provisions of this paragraph shall survive termination of this Agreement.
ARTICLE III
THE POLICIES; INDEMNIFICATION
Section 3.01. Agreement to Issue Policies. Financial Security
agrees to issue the Policies subject to the satisfaction of the conditions
hereinafter set forth.
Section 3.02. Conditions Precedent to Issuance of
Policies.
(a) The obligation of Financial Security to issue the Policies is
subject to the following having occurred or being true (as the case may be): (i)
WFS shall have assigned, conveyed and transferred, or caused to be assigned,
conveyed and transferred, the Collateral to the Company, (ii) the Company shall
have created a valid security interest in the Collateral in favor of the
Collateral Agent, (iii) the Company shall have assigned, conveyed and
transferred the Collateral to the Trust, (iv) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the best knowledge
of the Company, threatened by the Commission and any request for
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additional information on the part of the Commission (to be included in the
Registration Statement, the Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of the Commission, (v) the Premium shall
have been paid in accordance with Section 3.03 hereof, (vi) the representations
and warranties of the Trust and each Western Entity set forth or incorporated by
reference in this Agreement shall be true and correct on and as of the Closing
Date, and (vii) each Transaction Agreement shall be in full force and effect as
of the Closing Date and no default (or event which, with the giving of notice or
passage of time, or both, would become a default) thereunder shall have occurred
and be continuing.
(b) The obligation of Financial Security to issue the Policies is
further subject to the condition precedent that Financial Security shall have
received on the Closing Date, or, in its sole and absolute discretion, received
the opportunity to review prior to and on the Closing Date, the following, each
dated the Closing Date and in full force and effect on such date, except as
otherwise provided herein, in form and substance satisfactory to Financial
Security and its counsel:
(i) a certificate of an Authorized Officer of each Western
Entity other than WII stating that nothing has come to the attention of
such Western Entity to indicate that the Registration Statement or the
Prospectus, on the date the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus on any date on
which it was furnished to the Underwriters for use in connection with
the offering of the Certificates and Notes contained, or on the Closing
Date contains, any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to
make the statements made therein not misleading;
(ii) copies, certified to be true copies by the Secretary or an
Assistant Secretary of each Western Entity, of (i) the resolutions of
the Board of Directors of such Western Entity authorizing the execution,
delivery and performance of this Agreement and each other Transaction
Agreement to which such Western Entity is a party and all other
transactions and documents contemplated hereby and thereby, and of all
other documents evidencing any other necessary action of such Western
Entity (which certification shall state that such resolutions have not
been modified, are in full force and effect and constitute the only
resolutions adopted by such Western Entity's Board of Directors or any
committee thereof with respect thereto), (ii) the articles of
association, as amended, of such Western Entity and (iii) the by-laws,
as amended, of such Western Entity;
(iii) copies, certified to be true copies by an Authorized
Officer of the Owner Trustee, of (i) the resolutions of the board of
directors of the Owner Trustee authorizing the execution, delivery and
performance by the Owner Trustee of this Agreement and each other
Transaction Agreement to which the Owner Trustee is a party and all
transactions and documents contemplated hereby and thereby, and of all
other documents evidencing any other necessary action of the Owner
Trustee (which certification shall state that such resolutions have not
been modified, are in full force and effect and constitute the only
resolutions adopted by the Owner Trustee's board of directors or any
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committee thereof with respect thereto and (ii) the Certificate of
Trust, certified by the Secretary of State or other appropriate official
of the State of Delaware;
(iv) a certificate of an Authorized Officer of each Western
Entity stating that (i) attached thereto are true and complete copies,
if any, of all consents, licenses and approvals necessary for each
Western Entity to execute, deliver and perform this Agreement, the other
Transaction Agreements to which such Western Entity is a party and all
other documents and instruments on the part of such Western Entity to be
delivered pursuant hereto or thereto, and (ii) all such consents,
licenses and approvals are in full force and effect, such Western Entity
has not received any notice of any proceeding for the revocation of any
such license, charter, permit or approval, and, to such Western Entity's
knowledge, there is no threatened action or proceeding or any basis
therefor;
(v) a certificate of an Authorized Officer of the Owner Trustee
stating that (i) attached thereto are true and complete copies, if any,
of all consents, licenses and approvals necessary for the Owner Trustee
to execute, deliver and perform this Agreement, the other Transaction
Agreements to which the Owner Trustee is a party and all other documents
and instruments on the part of the Owner Trustee to be delivered
pursuant hereto or thereto have been obtained, and (ii) all such
consents, licenses and approvals are in full force and effect, the Owner
Trustee has not received any notice of any proceeding for the revocation
of any such license, charter, permit or approval, and, to the Owner
Trustee's knowledge, there is no threatened action or proceeding or any
basis therefor;
(vi) a certificate of the Secretary or an Assistant Secretary of
such Western Entity certifying (i) the names and true signatures of the
officers of such Western Entity executing and delivering this Agreement,
the other Transaction Agreements to which such Western Entity is a party
and the other documents to be executed and delivered by such Western
Entity hereunder and thereunder, (ii) that approval by such Western
Entity's stockholders of the execution and delivery of this Agreement,
the other Transaction Agreements and all other such documents to be
executed and delivered, by such Western Entity hereunder, has been
obtained or is not required, and (iii) that no resolution for the
dissolution of such Western Entity has been adopted or contemplated and
that no such proceedings have been commenced or are contemplated;
(vii) a certificate of an Authorized Officer of the Owner
Trustee certifying (i) the names and the true signatures of the officers
of the Owner Trustee executing and delivering this Agreement, the other
Transaction Agreements to which the Owner Trustee is a party and the
other documents to be executed and delivered by the Owner Trustee
hereunder and thereunder, (ii) that approval by the Owner Trustee's
equity holders of the execution and delivery of this Agreement, the
other Transaction Agreements and all other such documents to be executed
and delivered, by the Owner Trustee hereunder, has been obtained or its
not required, and (iii) that no action for the dissolution of the Owner
Trustee has been adopted or contemplated and that no such proceedings
have commenced or contemplated;
(viii) a certificate of an Authorized Officer of each Western
Entity to the effect that (x) the representations and warranties of such
Western Entity set forth or incorporated
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by reference in this Agreement are true and correct on and as of the
Closing Date and (y) confirming that the conditions precedent set forth
herein with respect to such Western Entity are satisfied;
(ix) a certificate of an Authorized Officer of the Trust to the
effect that (x) the representations and warranties of the Trust set
forth or incorporated by reference in this Agreement are true and
correct on and as of the Closing Date and (y) confirming that the
conditions precedent set forth herein with respect to the Trust are
satisfied;
(x) a favorable opinion of Messrs. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
LLP, counsel to the Company, WFS, the Bank and WII, as to certain
corporate, securities law and other matters, and such counsel shall have
been instructed by its client to deliver such opinion to the addressees
thereof, in form and substance satisfactory to counsel to Financial
Security;
(xi) a favorable opinion of Messrs. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, LLP, counsel to the Company, WFS and the Bank, as to certain
bankruptcy and insolvency matters, and such counsel shall have been
instructed by its client to deliver such opinion to the addressees
thereof, in form and substance satisfactory to Financial Security;
(xii) a favorable opinion of Messrs. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, LLP, special tax counsel to the Company, WFS, the Bank and WII,
as to certain tax matters (which may be included in the opinion referred
to in clause (x) above), and such counsel shall have been instructed by
its client to deliver such opinion to the addressees thereof, in form
and substance satisfactory to counsel to Financial Security;
(xiii) a favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel
to the Trust and the Owner Trustee, and such counsel shall have been
instructed by its client to deliver such opinion to the addressees
thereof, substantially in the form of Exhibit G hereto;
(xiv) a certificate from the Collateral Agent and the Indenture
Trustee, substantially in the form of Exhibit E hereto;
(xv) a favorable opinion of White & Case, counsel to the
Collateral Agent, the Proceeds Agent and the Indenture Trustee, and such
counsel shall have been instructed by its client to deliver such opinion
to the addressees thereof, substantially in the form of Exhibit F
hereto;
(xvi) evidence that amounts due and payable to Financial
Security under Section 3.03 of this Agreement have been paid or that
acceptable provisions therefor have been made;
(xvii) a fully executed copy of each of the Transaction
Agreements;
(xviii) evidence that all actions necessary or, in the opinion
of Financial Security, desirable to perfect and protect the interests
transferred by the Sale and Servicing Agreement and the liens and
security interests created by this Agreement, including, without
limitation, the filing of any financing statements required by Financial
Security or its counsel, have been taken or promptly shall be taken;
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(xix) a certificate or opinion of Independent Accountants
addressed to Financial Security to the effect set forth in Exhibit H
hereto;
(xx) a certificate of the Master Servicer, signed by an
Authorized Officer, identifying those Contracts as to which the Title
Documents are not in the possession of the Company and certifying that
such Title Documents showing WFS or the Bank as first lienholder have
been applied for and as to which Section 3.09 of the Sale and Servicing
Agreement applies;
(xxi) evidence that the Company shall have deposited, or caused
to have been deposited, in the Collection Account, the deposits required
under the eighth paragraph of Section 4.01 of the Sale and Servicing
Agreement, the deposits required in the Spread Account and any other
deposits required to be made on the Closing Date under the Transaction
Agreements to which the Company is a party; and
(xxii) such other documents, instruments, approvals (and, if
requested by Financial Security, certified duplicates of executed copies
thereof) or opinions as Financial Security may reasonably request.
Section 3.03. Premium. In consideration of the issuance by
Financial Security of the Policies, the Company shall pay to Financial Security
the initial installment of the Premium at the time of delivery of the Policies
and further installments of the Premium, all in accordance with the terms of the
letter agreement between the Company and Financial Security referred to in the
definition of "Premium" set forth herein. Failure by the Company to pay any such
further installments of the Premium shall not cause the Policies to be cancelled
and shall not in any way relieve Financial Security of its obligations to make
any payments under the Policies. Anything herein to the contrary
notwithstanding, it is hereby agreed between the parties hereto that the full
amount of the Premium shall have been earned by Financial Security upon its
issuance of the Policies on the Closing Date and upon the occurrence of a
Servicer Default under Section 8.01 of the Sale and Servicing Agreement
(including without limitation, the failure of the Company to pay any installment
of the Premium as and when due), the entire outstanding balance of further
installments of the Premium shall be immediately due and payable. The Premium
shall be nonrefundable without regard to whether Financial Security makes any
payment under the Policies, any prepayment or early retirement of the Notes or
the Certificates occur or any other circumstances occur relating to the Notes or
the Certificates.
Section 3.04. Reimbursement Obligation.
(a) Each of the Trust and the Company agrees absolutely and
unconditionally to pay to Financial Security, in the manner provided in Section
3.04(b), as follows:
(i) a sum equal to the total of all amounts which may be paid
by Financial Security under the Policies;
(ii) any accrued but unpaid installments of the Premium and any
and all reasonable charges and expenses which Financial Security may pay
or incur relating to any payment under the Policies, including, but not
limited to, any fees and charges in connection with any accounts
established to facilitate payments under the Policies, to the extent
Financial Security has not been immediately reimbursed on the date that
any amount is paid by Financial Security under the Policies;
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(iii) the amount of any reasonable costs or expenses (including
attorneys' and accountants' fees and expenses) incurred by Financial
Security (A) in connection with the enforcement of this Agreement or any
of the other Transaction Agreements or (B) in connection with the
foreclosure upon, sale or other disposition of the Collateral, to the
extent that such costs and expenses are not recovered from such
foreclosure, sale or other disposition;
(iv) the amount of any payments made by Financial Security on
behalf of the Company other than amounts specified under Section
3.04(a)(i) above, including, without limitation, the fees and expenses
of the Collateral Agent, the Indenture Trustee, the Owner Trustee, the
Trust and any Independent Accountants, and the amount of any payments
made by Financial Security to (i) the Owner Trustee in respect of
amounts (if any) owing by the Trust to the Owner Trustee pursuant to,
Section 8.02 of the Trust Agreement and (ii) the Indenture Trustee
pursuant to Section 6.07 of the Indenture to the extent that such
amounts shall not have been paid by the Trust and are paid by Financial
Security;
(v) any federal, state or local tax (other than taxes payable in
respect of the gross income of Financial Security) or other governmental
charge imposed in connection with the issuance of the Policies or the
business or operations of the Company, including, without limitation, by
reason of the Company's being deemed to do business in the State of
California;
(vi) Financial Security's cost of providing to the Company (or
to any Person at the request of the Company) any audited or unaudited
financial statements, including, without limitation, the fees and
expenses of Financial Security's Independent Accountants in reviewing
such financial statements in connection with such provision and mailing
and incremental printing costs;
(vii) any amount otherwise required to be paid to or on behalf
of Financial Security under this Agreement;
(viii) any payments made by Financial Security as, or in lieu
of, servicing, management, trustee, custodial or administrative fees
payable, in the sole discretion of Financial Security, to third parties
in connection with the transaction, to the extent (in each case) that
such payment occurs following (i) the occurrence of an Event of Default
(or event or circumstance that, with the giving of notice or the passage
of time or both, would become an Event of Default) or (ii) the failure
of any Person to perform its obligation to pay any such amount at the
time and in the manner specified in this Agreement or any other
Transaction Agreement; and
(ix) interest on any and all such amounts from the date of
payment by Financial Security of such amounts until payment thereof in
full and interest on any and all amounts described in Sections 3.03 and
3.09 hereof, from the date due until payment thereof in full, in each
case, payable at the Late Payment Rate.
(b) All amounts to be paid by the Trust or the Company pursuant
to subsection (a) above shall be due and payable without demand, in full without
any requirement on the part of Financial Security to seek reimbursement from any
other sources of indemnity
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therefor or to allocate expenses to other transactions benefiting therefrom, and
all such amounts shall be payable in the priority and in the manner provided in
the Sale and Servicing Agreement; provided, however, that upon the occurrence of
any Servicer Default under the Sale and Servicing Agreement, Financial Security
shall have the rights provided for herein and therein.
Section 3.05. Non-Recourse Obligation. Notwithstanding any
provision to the contrary contained in Section 3.04(a), the payment obligations
provided in Sections 3.04(a)(i) (to the extent that such payment obligations do
not arise from any failure or default in the performance by the Bank or WFAL2 of
any of its payment obligations under the RIC), 3.04(a)(ii) and (to the extent
that such payment obligations do not arise from any failure or default in the
performance by the Company of any of its obligations under the Transaction
Agreements) 3.04(a)(iii)(A) and (B), and any interest on the foregoing in
accordance with Section 3.04(a)(ix), shall not be recourse to the Company, WFS,
WII, the Owner Trustee, the Indenture Trustee, the Collateral Agent or the
Proceeds Agent, but shall be payable solely by application of moneys (excluding
the Retained Yield) received from time to time in accordance with the Sale and
Servicing Agreement (including but not limited to all amounts paid into the
Collection Account, the Note Distribution Account, the Certificate Distribution
Account or the Holding Account pursuant to the Sale and Servicing Agreement by
any Western Entity, but not including the Retained Yield to the extent that any
amount thereof is deposited into either such Account) and by realization on the
Collateral pursuant to Section 6.03 hereof. Such payment obligations shall be
limited, except as set forth in the preceding sentence, solely to application of
monies, if any, in the Spread Account from time to time in accordance with
Transaction Agreements.
Section 3.06. Indemnification.
(a) In addition to any and all rights of indemnification or any
other rights of Financial Security pursuant hereto or under law or equity, the
Company agrees to pay, and to protect, indemnify and save harmless, Financial
Security and its officers, directors, shareholders, employees, agents and each
person, if any, who controls Financial Security within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all claims, losses, liabilities (including penalties), actions,
suits, judgments, demands, damages, costs or expenses (including, without
limitation, fees and expenses of attorneys, consultants and auditors and
reasonable costs of investigations) or obligations whatsoever (herein
collectively referred to as "Liabilities") of any nature arising out of or
relating to the transactions contemplated by this Agreement and the other
Transaction Agreements by reason of:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon 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, except
insofar as such Liabilities arise out of or are based upon any such
untrue statement or omission or allegation thereof based upon (A)
information set forth in the Prospectus under the caption "Financial
Security" or in the financial statements of Financial Security,
including any information in any amendment or supplement to the
Prospectus furnished by Financial Security in writing expressly for use
therein that amends or supplements
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such information (all such information being referred to herein as
"Financial Security Information"), or (B) information set forth under
the caption "Underwriting" in the Prospectus, including any information
in any amendment or supplement to the Prospectus furnished by the
Underwriters through the Representative in writing expressly for use
therein that amends or supplements such information (all such
information being referred to herein as "Underwriter Information");
(ii) to the extent not covered by clause (i) above, any act or
omission of the Company, WII or the Trust in connection with the
offering, issuance, sale or delivery of the Notes or the Certificates
other than by reason of false or misleading Financial Security
Information;
(iii) the misfeasance or malfeasance of, or theft committed
by, any director, officer, employee or agent of the Company, WII or the
Trust;
(iv) the violation by the Company, the Trust or WII of any
federal or state securities, banking or antitrust laws, rules or
regulations in connection with the issuance, offer and sale of the Notes
or the Certificates or the transactions contemplated by this Agreement
and the other Transaction Agreements;
(v) the violation by the Company, WII or the Trust of any
federal or state laws, rules or regulations relating to the maximum
amount of interest permitted to be received on account of the loan of
money or with respect to the Contracts;
(vi) the negligence or willful misconduct of the Company, the
Trust or WII or any of its directors, officers, employees or agents;
(vii) the breach by the Company, WII or the Trust of its
obligations under this Agreement or any of the other Transaction
Agreements;
(viii) the breach by the Company, WII or the Trust of any
representation or warranty on the part of the Company, WII or the Trust,
respectively, contained in or incorporated by reference in this
Agreement or any other Transaction Agreement or in any certificate
furnished or delivered to Financial Security hereunder and thereunder,
or the occurrence, in respect of the Company or the Trust, under any of
the Transaction Agreements of any event of default or any event which,
with the giving of notice or lapse of time or both, would constitute any
event of default; and
(ix) the use, ownership or operation by the Company or the
Trust, WII or any affiliate of the Company, of a Financed Vehicle.
(b) In addition to any and all rights of indemnification or any
other rights of Financial Security pursuant hereto or under law or equity, WFS
agrees to pay, and to protect, indemnify and save harmless, Financial Security
and its officers, directors, shareholders, employees, agents and each person, if
any, who controls Financial Security within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all claims, losses, liabilities (including penalties), actions, suits,
judgments, demands, damages, costs or expenses (including, without limitation,
fees and expenses of attorneys, consultants and auditors and reasonable costs of
investigations) or obligations whatsoever (herein collectively referred to as
"Liabilities") of any nature arising out of or relating to the
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transactions contemplated by this Agreement and the other Transaction Agreements
by reason of:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon 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, except
insofar as such Liabilities arise out of or are based upon any such
untrue statement or omission or allegation thereof based upon (A)
information set forth in the Prospectus under the caption "Financial
Security" or in the financial statements of Financial Security,
including any information in any amendment or supplement to the
Prospectus furnished by Financial Security in writing expressly for use
therein that amends or supplements such information (all such
information being referred to herein as "Financial Security
Information"), or (B) information set forth under the caption
"Underwriting" in the Prospectus, including any information in any
amendment or supplement to the Prospectus furnished by the Underwriters
through the Representative in writing expressly for use therein that
amends or supplements such information (all such information being
referred to herein as "Underwriter Information");
(ii) to the extent not covered by clause (i) above, any act or
omission of WFS in connection with the offering, issuance, sale or
delivery of the Notes or the Certificates other than by reason of false
or misleading Financial Security Information;
(iii) the misfeasance or malfeasance of, or theft committed
by, any director, officer, employee or agent of WFS;
(iv) the violation by WFS or any Affiliate (other than
Westcorp) thereof of any federal or state securities, banking or
antitrust laws, rules or regulations in connection with the issuance,
offer and sale of the Notes or the Certificates or the transactions
contemplated by this Agreement and the other Transaction Agreements;
(v) the violation by WFS or any Affiliate (other than
Westcorp) thereof of any federal or state laws, rules or regulations
relating to the maximum amount of interest permitted to be received on
account of the loan of money or with respect to the Contracts;
(vi) the negligence or willful misconduct of WFS or any of
their respective directors, officers, employees or agents;
(vii) the breach by WFS of its obligations under this
Agreement or any of the other Transaction Agreements;
(viii) the breach by WFS of any representation or warranty on
the part of WFS contained in or incorporated by reference in this
Agreement or any other Transaction Agreement or in any certificate
furnished or delivered to Financial Security hereunder and thereunder;
(ix) the use, ownership or operation by WFS, or any Affiliate
thereof (other than Westcorp), of a Financed Vehicle; and
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(x) the violation by the Company, the Trust or WII of any of
the provisions of (a) above caused by or at the direction of WFS.
(c) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against Financial Security or any
person controlling Financial Security (hereinafter collectively referred to as a
Financial Security Indemnified Party) in respect of which indemnity may be
sought from the Company pursuant to Section 3.06(a)(i) or (ii) or WFS pursuant
to Section 3.06(b)(i), (ii) or (x) (such Western Entity or Western Entities, as
the case may be, herein referred to as the Indemnifying Western Entity), then
Financial Security or such controlling person shall give the Indemnifying
Western Entity written or telegraphic notice of such action or claim reasonably
promptly after receipt of written notice thereof. The Indemnifying Western
Entity shall be entitled to participate in the defense of any such action or
claim in reasonable cooperation with, and with the reasonable cooperation of,
the Financial Security Indemnified Party. The Financial Security Indemnified
Party shall have the right to employ its own counsel in any such action in
addition to the counsel of the Indemnifying Western Entity, but fees and
expenses of such counsel will be at the expense of the Financial Security
Indemnified Party unless (1) the employment of counsel by the Financial Security
Indemnified Party has been authorized in writing by the Indemnifying Western
Entity or (2) the Indemnifying Western Entity has not in fact employed counsel
to assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action or (3) the named parties to any such
action or proceeding (including any impleaded parties) include both the
Indemnifying Western Entity on the one hand and the Financial Security
Indemnified Party on the other hand, and the Financial Security Indemnified
Party shall have been advised by counsel that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Indemnifying Western Entity (it being understood, however, that
the Indemnifying Western Entity shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the Financial Security
Indemnified Party, which firm shall be designated in writing by the Financial
Security Indemnified Party), in each of which cases the fees and expenses of
counsel will be at the expense of the Indemnifying Western Entity and all such
fees and expenses will be reimbursed promptly as they are incurred. No
settlement of any such claim or action shall be entered into without the consent
of Financial Security on the one hand and the Indemnifying Western Entity who is
subject to such claim or action on the other hand. Any failure by Financial
Security to comply with the provisions of this Section shall relieve the
Indemnifying Western Entity of liability only if substantially prejudicial to
the position of the Indemnifying Western Entity and then only to the extent of
such prejudice.
(d) The rights to indemnification provided for in this Section
3.06 shall survive the termination of this Agreement and shall survive until the
statute of limitations has run on any causes of action that arise from these
provisions and until all suits filed as a result thereof have been finally
concluded.
Section 3.07. Liability Absolute. The obligations of the Company,
WFS, WII and the Trust hereunder shall be absolute, unconditional and
irrevocable and shall be paid and performed strictly in accordance with the
terms of this Agreement under all circumstances whatsoever, including, without
limitation, the following circumstances:
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(a) any lack of validity or enforceability of the Policies or all
or any provision of this Agreement or of any of the other Transaction
Agreements;
(b) any amendment or waiver of or any consent to departure from
all or any provision of this Agreement or of any other Transaction Agreement;
(c) the existence of any claim, setoff, defense, reduction,
abatement or other right which either Western Entity may have at any time
against Financial Security or any other Person;
(d) any statement, instrument of assignment or any other document
presented to Financial Security in connection with the Policies proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever;
(e) payment by Financial Security under the Policies against
presentation of a certificate or other document which does not comply with the
terms of the Policies, provided that such payment shall not have been the result
of the gross negligence or willful misconduct of Financial Security;
(f) any nonapplication or misapplication by the Indenture
Trustee, the Owner Trustee, or any paying agent of the proceeds of the demand
for payment under the Policies;
(g) the failure of the Company or, indirectly, WFS, to receive
the proceeds of the sale of the Notes or the Certificates; or
(h) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided that such circumstance or
happening shall not have been the result of the gross negligence or willful
misconduct of Financial Security.
Section 3.08. Liability of Financial Security. Neither Financial
Security nor any of its officers, directors or employees shall be liable or
responsible for (a) the unauthorized use which may be made of the Policies by
the Indenture Trustee or the Owner Trustee or any unauthorized acts or omissions
of the Indenture Trustee or the Owner Trustee in connection with the Policies;
or (b) the validity, sufficiency, accuracy or genuineness of documents, or of
any endorsement(s) thereto, even if such documents should in fact prove to be in
any or all respects invalid, insufficient, fraudulent or forged; or (c) any acts
or omissions to act of the Indenture Trustee in connection with the Collateral
other than such acts or omissions that are at the direction of Financial
Security. In furtherance and not in limitation of the foregoing, Financial
Security (or its Fiscal Agent) may accept documents that appear on their face to
be in order, without responsibility for further investigation. Each of the Owner
Trustee, the Indenture Trustee and each Western Entity acknowledges that it has
not relied on any information or materials provided by Financial Security in
connection with the issuance of the Notes and the Certificates except for the
information furnished in writing by Financial Security for inclusion in the
Registration Statement. Each of them also acknowledges that it has not relied on
any investigation by Financial Security of the Collateral or of the financial
statements or other financial statistical data used in connection with the
issuance of the Certificates.
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Section 3.09. Payment of Costs, Fees and Expenses.
(a) The Company shall pay on demand any and all charges, fees,
costs and expenses which Financial Security may reasonably pay or incur,
including, but not limited to, attorneys' and accountants' fees and expenses, in
connection with (A) the enforcement, defense or preservation of any rights in
respect of any of this Agreement or any other Transaction Agreements, including
defending, monitoring or participating in any litigation or proceeding
(including any bankruptcy proceeding in respect of any transaction participant
or any Affiliate (other than WII or Westcorp) thereof) relating to any of the
Transaction Agreements and this Agreement, any party to any of the Transaction
Agreements and this Agreement, or the transaction, (B) any amendment, waiver or
other action with respect to, or related to, any Transaction Agreements and this
Agreement whether or not executed or completed or (C) any review or approval by
Financial Security in connection with the delivery of any additional or
substitute collateral under any of the Transaction Agreements and this
Agreement. In addition, the Company shall reimburse Financial Security for its
expenses, including, without limitation, legal fees and disbursements, incurred
in connection with the preparation of this Agreement and the Transaction
Agreements and the consummation of the initial transactions contemplated hereby
and thereby, it being understood that the Company's obligation to reimburse
Financial Security pursuant to this sentence shall be limited in the aggregate
to the dollar amount set forth in the letter agreement between the Company and
Financial Security referred to in the definition of "Premium" set forth herein,
plus rating agency fees, to the extent paid by Financial Security.
(b) WFS shall pay on demand any and all charges, fees, costs and
expenses not paid by the Company which Financial Security may reasonably pay or
incur, including, but not limited to, attorneys' and accountants' fees and
expenses, in connection with (A) the enforcement, defense or preservation of any
rights in respect of this Agreement or any other Transaction Agreements,
including defending, monitoring or participating in any litigation or proceeding
(including any bankruptcy proceeding in respect of any transaction participant
or any Affiliate (other than Westcorp) thereof) relating to this Agreement or
any other Transaction Agreements, any party to any of the Transaction Agreements
and this Agreement, or the transaction, (B) any amendment, waiver or other
action with respect to, or related to, this Agreement or any other Transaction
Agreements, whether or not executed or completed or (C) any review or approval
by Financial Security in connection with the delivery of any additional or
substitute collateral under any of the Transaction Agreements and this
Agreement.
Section 3.10. Payment Procedure. All payments made pursuant to
this Agreement shall be made to Financial Security in lawful currency of the
United States of America and in one-day clearing-house funds at Financial
Security's Notice Address before 1:00 p.m. (New York City time) on the date when
due.
Section 3.11. Business Days. In any case where the date of any
payment to Financial Security or the expiration of any time period hereunder
occurs on a day which is not a Business Day, then such payment may be made, or
such expiration shall occur, on the next succeeding Business Day with the same
force and effect as if made on the day of maturity or expiration of such period,
except that interest shall continue to accrue for the period after such date to
the next Business Day.
Section 3.12. Waivers and Consents by the Company and WFS. The
Company, WFS and any and all others who are now or may become liable for all or
part of the obligations
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of the Company and WFS under this Agreement (all of the foregoing being referred
to collectively in this Section as the "Obligors") agree to be bound by this
Agreement and (a) waive and renounce any and all redemption and exemption rights
and the benefit of all valuation and appraisement privileges against any amounts
to be paid hereunder or any extension or renewal hereof; (b) waive presentment
and demand for payment, notices of nonpayment and of dishonor, protest of
dishonor and notice of protest; (c) waive all notices in connection with the
delivery and acceptance hereof and all other notices in connection with the
performance, default or enforcement of the payment hereof except as required by
this Agreement; (d) waive any and all lack of diligence and delays in the
enforcement of the payment hereof; (e) agree that the liability of each of the
Obligors shall be unconditional and without regard to the liability of any other
person or entity for the payment hereof and shall not in any manner be affected
by any indulgence or forbearance granted or consented to by Financial Security
with respect hereto; (f) consent to any and all extensions of time, renewals,
waivers or modifications that may be granted by Financial Security with respect
to the payment or other provisions hereof, and to the release of any security at
any time given for the payment hereof, or any part thereof, with or without
substitution, and to the release of any person or entity liable for the payment
hereof; and (g) consent to the addition of any and all other makers, endorsers,
guarantors and other obligors for the payment hereof, and to the acceptance of
any and all other security for the payment hereof or thereof, and agree that the
addition of any such obligors or security shall not affect the liability of any
of the Obligors for the payment hereof.
ARTICLE IV
PLEDGE OF COLLATERAL
Section 4.01. Obligations Secured Hereby. The agreements
contained in this Article IV are made to provide for and secure repayment of the
following indebtedness and liabilities of the Company (such indebtedness and
liabilities being herein called the "Obligations") in the order of priority
indicated:
First, (i) the repayment of all amounts, if any, advanced
or expended by the Collateral Agent, in its capacity as Collateral
Agent, for the account of the Company hereunder, (ii) the payment of all
reasonable costs and expenses at any time and from time to time incurred
by the Collateral Agent, in its capacity as Collateral Agent, in
connection with the administration or enforcement of this Agreement or
any related document (including, without limitation, the fees and
out-of-pocket expenses of counsel employed by the Collateral Agent in
connection therewith) and (iii) the payment of all indemnities at any
time and from time to time payable hereunder to the Collateral Agent, by
the Company, and
Second, (i) the repayment of all amounts advanced or paid
by Financial Security under the Policies pursuant to this Agreement and
(ii) the payment of any accrued but unpaid installments of the Premium
and all costs and expenses at any time and from time to time incurred by
Financial Security in connection with the administration or enforcement
of this Agreement or any other Transaction Agreement or any related
document (including, without limitation, the fees and out-of-pocket
expenses of counsel employed by Financial Security in
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connection therewith) and under or in connection with this Agreement and
the Policies.
Section 4.02. Granting Clause. In order to secure and to provide
for the repayment of the Obligations, the Company hereby assigns, conveys,
transfers, delivers and sets over unto the Collateral Agent, as collateral agent
for Financial Security, and hereby grants the Collateral Agent, as collateral
agent for Financial Security, a security interest in the Collateral, to have and
to hold said Collateral unto the Collateral Agent, its successors and assigns,
forever in pledge and trust for the benefit and security of Financial Security,
subject to the terms and provisions set forth in Article V of this Agreement.
The assignment and security interest so granted to the Collateral Agent shall
not relieve the Company from the performance of any term, covenant, condition or
agreement on the Company's part to be performed or observed under or in
connection with this Agreement or any other Transaction Agreement, or impose any
obligation on the Collateral Agent or Financial Security to perform or observe
any such term, covenant, condition or agreement on the Company's part to be so
performed or observed or impose any liability on the Collateral Agent or
Financial Security for any act or omission on the part of the Company relative
thereto or for any breach of any representation or warranty on the part of the
Company contained therein, or made in connection therewith, and the Company
hereby agrees to indemnify and hold harmless the Collateral Agent and Financial
Security from and against any and all losses, liabilities (including liabilities
for penalties), claims, demands, actions, suits, judgments, costs and expenses
arising out of or resulting from the assignment and security interest granted
hereby by virtue of any act or omission on the part of the Company (other than
an act or omission on the part of the Company pursuant to or in accordance with
an express direction from the Collateral Agent or Financial Security),
including, without limitation, the reasonable costs, expenses and disbursements
(including attorneys' fees) incurred by the Collateral Agent or Financial
Security in enforcing this Agreement or any other Transaction Agreement. The
assignment and security interest granted to the Collateral Agent pursuant to
this Section shall become effective prior to the effectiveness of the Seller
Assignments and the assignment by the Seller to the Trust under Section 2.01 of
the Sale and Servicing Agreement and the assignment by the Trust to the
Indenture Trustee under the Indenture and, upon the effectiveness of such
assignment and security interest, such assignment and security interest shall be
subject to the provisions of Section 5.01(d) hereof.
Section 4.03. Release of Collateral. Financial Security hereby
instructs the Collateral Agent that, at such time as a Contract is reconveyed by
the Trust pursuant to Section 9.01 of the Sale and Servicing Agreement, the
Collateral Agent shall release such Contract from the lien of the security
interest created hereby upon receipt of the Owner Trustee's assignment delivered
pursuant to Section 9.02 of the Sale and Servicing Agreement.
ARTICLE V
INTERCREDITOR PROVISIONS
Section 5.01. Financial Security's Direction Upon Servicer
Default.
(a) So long as no Financial Security Insolvency has occurred and
no Financial Security Default has occurred and is continuing, if there exists
any Servicer Default pursuant to Section 8.01 of the Sale and Servicing
Agreement, Financial Security shall, notwithstanding the
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provisions of Article VIII of the Sale and Servicing Agreement, have the sole
right to direct the Indenture Trustee as to any and all actions to be taken
under the Indenture or the Sale and Servicing Agreement, as applicable,
including, without limitation, all actions with respect to (i) the giving of
directions to the Master Servicer and any Subservicer with respect to the
servicing of the Contracts and any of the respective obligations of the Company
under the Sale and Servicing Agreement, (ii) the exercise of all rights,
remedies, powers, privileges and claims against any obligor under the Sale and
Servicing Agreement and (iii) the giving or withholding of all consents,
requests, notices, directions, approvals, extensions or waivers under or with
respect to the Indenture or the Sale and Servicing Agreement, as applicable, in
each case to the same extent as the Noteholders or the Certificateholders might
do but for the collateral assignment and security interests granted to Financial
Security hereunder, provided, however, that the Indenture Trustee, without
obtaining the consent or direction of Financial Security, may at all times take
any action permitted or required to be taken by it under the terms of the
Indenture or as a fiduciary in order to protect the Indenture Trustee's, the
Noteholders' and the Certificateholders' interest in the Trust Estate or to
preserve any available claims against the Company on behalf of the Noteholders
and the Certificateholders. Financial Security shall indemnify the Indenture
Trustee in full for any costs and expenses incurred (including the reasonable
fees and expenses of the Indenture Trustee's counsel) in connection with the
Indenture Trustee's due performance of directions pursuant to this subsection
(a) or in connection with any inaction of the Indenture Trustee as a result of a
direction from Financial Security at any time when Financial Security holds the
right to direct the Indenture Trustee as provided for in this paragraph (a).
(b) Financial Security shall not unreasonably withhold any
consent required of it under the Sale and Servicing Agreement or the Indenture,
as applicable, and shall promptly respond when any approval or consent is
required of it under the Sale or Servicing Agreement and the Indenture, as
applicable.
(c) Notwithstanding any provision of the Sale and Servicing
Agreement or the Indenture, as applicable, to the contrary, so long as no
Financial Security Insolvency has occurred and no Financial Security Default has
occurred and is continuing,
(i) without the prior written consent of Financial Security,
the Owner Trustee shall not (A) terminate the rights and powers of the
Master Servicer pursuant to Section 8.01 of the Sale and Servicing
Agreement or (B) waive any Servicer Default thereunder;
(ii) without the prior written consent of Financial Security,
(A) neither the Company nor the Trust shall cause to be appointed any
successor Indenture Trustee, and, (B) neither the Indenture Trustee nor
the Administrator shall cause to be appointed any Co-Trustee under the
Indenture;
(iii) without the prior written consent of Financial Security,
neither the Company or WFS nor the Owner Trustee or the Indenture
Trustee shall appoint new Independent Accountants;
(iv) without the prior written consent of Financial Security,
neither the Company or WFS nor the Owner Trustee or the Indenture
Trustee shall consent to the amendment of or supplement to any of the
Transaction Agreements; and
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(v) Financial Security shall have the power to direct the
actions to be taken by the Company pursuant to Section 3.02 of the Sale
and Servicing Agreement.
(d) Financial Security agrees that, until such time that all
required payments shall have been made with respect to the Notes and the
Certificates, the security interest in the Collateral granted to Financial
Security under this Agreement shall be junior and subordinate to the interest of
the Indenture Trustee and the Securityholders. Financial Security further agrees
that, until such time that all required payments shall have been made with
respect to the Notes and the Certificates, neither Financial Security nor any
Person acting on its behalf may take any action to foreclose or otherwise pursue
remedies with respect to the Collateral other than in accordance with the Sale
and Servicing Agreement and the Indenture.
Section 5.02. Financial Security's Direction of Insolvency
Proceedings. Financial Security shall have the rights provided for in Section
8.06 of the Sale and Servicing Agreement.
ARTICLE VI
THE COLLATERAL AGENT; REMEDIES
Section 6.01. Appointment and Powers of Collateral Agent.
Financial Security hereby appoints Bankers Trust Company as the Collateral
Agent, and Bankers Trust Company accepts such appointment hereunder, and
Financial Security hereby authorizes the Collateral Agent to take such action on
its behalf and to exercise such rights, remedies, powers and privileges
hereunder as Financial Security may direct and as are specifically authorized to
be exercised by the Collateral Agent by the terms hereof, together with such
rights, remedies, powers and privileges as are reasonably incidental thereto.
The Collateral Agent may execute any of its duties as agent hereunder by or
through agents or employees and shall be entitled to retain counsel and to act
in reliance upon the advice of such counsel concerning all matters pertaining to
the agencies hereby created and its duties hereunder, and shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance
with the advice of counsel selected by it. The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement.
The duties of the Collateral Agent shall be mechanical and administrative in
nature. The Collateral Agent shall not have by reason of this Agreement a
fiduciary relationship. Nothing in this Agreement, express or implied, is
intended to or shall be so construed as to impose upon the Collateral Agent any
obligations in respect of this Agreement except as expressly set forth herein.
Neither the Collateral Agent nor Financial Security, nor any of its or their
respective directors, officers or employees, shall be liable for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith,
except for its or their own gross negligence or willful misconduct; nor shall
the Collateral Agent or Financial Security be responsible for the validity,
effectiveness, value, sufficiency or enforceability against the Company of this
Agreement or any other document furnished pursuant hereto or in connection
herewith, or of the Collateral (or any part thereof). The Collateral Agent shall
be entitled to rely on any communication, instrument, paper or other document
believed by it to be genuine and correct and to have been signed or sent by the
proper Person or Persons.
Section 6.02. Successor Collateral Agent. The Collateral Agent
acting hereunder at any time may resign by an instrument in writing addressed
and delivered to the
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Company and Financial Security. If the Collateral Agent is also the Indenture
Trustee and, as such, determines that it has a conflicting interest on account
of its acting as Collateral Agent, the Collateral Agent shall eliminate such
conflicting interest by resigning as Collateral Agent hereunder rather than
resigning as Indenture Trustee. Financial Security shall appoint a successor to
the Collateral Agent upon any such resignation by an instrument of substitution
complying with the requirements of applicable law, or, in the absence of any
such requirements, without formality other than appointment and designation in
writing, a copy of which instrument or writing shall be sent to the Company;
provided, however, that the validity of any such appointment shall not be
impaired or affected by any failure to give any such notice to the Company or by
any defect therein. Upon the making and acceptance of such appointment, the
execution and delivery by such successor Collateral Agent of a ratifying
instrument pursuant to which such successor Collateral Agent agrees to assume
the duties and obligations imposed on the Collateral Agent by the terms of this
Agreement, and the delivery to such successor Collateral Agent of the Collateral
and related documents then held by the retiring Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
estate, rights, powers, remedies, privileges, immunities, indemnities, duties
and obligations hereby granted to or conferred or imposed upon the Collateral
Agent named herein, and one such appointment and designation shall not exhaust
the right to appoint and designate further successor Collateral Agents
hereunder. No Collateral Agent shall be discharged from its duties or
obligations hereunder until the Collateral and related documents then held by
such Collateral Agent shall have been transferred and delivered to the successor
Collateral Agent and such retiring Collateral Agent shall have executed and
delivered to the successor Collateral Agent appropriate instruments establishing
the successor Collateral Agent as the record holder of all liens and security
interests in favor of Financial Security in the Collateral and transferring to
such successor Collateral Agent all power given to it by the Indenture Trustee
to act as attorney-in-fact of the Indenture Trustee for purposes of this
Agreement. Each such successor Collateral Agent shall provide the Company and
Financial Security with its address (which shall thereupon become such successor
Collateral Agent's Notice Address for purposes of this Agreement), and its
telephone, Telex, TWX and telecopier numbers, to be used for purposes of Section
7.02 hereof, in a notice complying with the terms of said Section.
Section 6.03. Remedies Available to Collateral Agent.
(a) To the fullest extent permitted by applicable law and subject
to Article V hereof, if the Master Servicer shall have been terminated upon the
occurrence of any Servicer Default pursuant to Section 8.01 of the Sale and
Servicing Agreement, then in every such case, the Collateral Agent may, to the
extent permitted by applicable law and subject to Article V hereof, exercise the
following rights, privileges and remedies:
(i) Collection of the Collateral. The Collateral Agent shall
have the right to collect all proceeds of the Collateral, to pay all
expenses of such collection, including the reasonable expenses and
compensation of the Collateral Agent, its agents and attorneys, and to
apply the remainder of the moneys so received as provided herein.
(ii) Sale of Collateral. The Collateral Agent may sell, or
cause to be sold, the Collateral or any part thereof or interest
therein, at public auction to the highest bidder for cash or at private
sale or auction with or without demand, advertisement or notice of the
date, time or place of sale or any adjournment thereof, upon such terms
as Financial
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Security may approve, and upon such sale the Collateral Agent shall make
and deliver to the purchaser or purchasers an appropriate instrument or
instruments of transfer. The Collateral Agent is hereby irrevocably
appointed the true and lawful attorney of the Indenture Trustee, in its
name and stead, to make all necessary transfers of property thus sold;
and for that purpose it may execute all necessary instruments of
transfer, and may substitute one or more Persons with like power, the
Indenture Trustee hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully do by virtue
hereof. Nevertheless, if so requested by the Collateral Agent or any
purchaser of the Collateral or any part thereof, the Indenture Trustee
shall ratify and confirm any such sale or transfer by executing and
delivering to the Collateral Agent or such purchaser all proper
instruments of transfer and releases as may be designated in any such
request. The Collateral Agent may proceed at law or in equity to
foreclose the lien of this Agreement against all or any part of the
Collateral and to have the same sold under the judgment or decree of a
court having jurisdiction or as otherwise may be required or permitted
by law. Upon any such sale, whether made under the power of sale hereby
given or by virtue of judicial proceedings, any Noteholder,
Certificateholder or Financial Security may bid for and purchase the
Collateral or any part thereof and, upon compliance with the terms of
such sale, may hold, retain, possess or dispose of such property in its
or their own absolute right without accountability; and any purchaser at
any such sale may, in paying the purchase money, turn in any of the
Notes or Certificates, as applicable, in lieu of cash up to the amount
which shall, upon distribution of the net proceeds of such sale, be
payable thereon. Said Notes or Certificates, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Holders thereof after being properly stamped to show
partial payment. Upon any sale, whether made under the power of sale
hereby given or by virtue of judicial proceedings, a receipt of the
Collateral Agent, or of the officer making such sale under judicial
proceedings, shall be a sufficient discharge to the purchaser or
purchasers at such sale for its or their purchase money, and such
purchaser or purchasers shall not be obliged to see to the application
thereof. Any such sale, whether under the power of sale hereby given or
by virtue of judicial proceedings, shall bind the Collateral Agent, the
Company, the Indenture Trustee, the Noteholders and the
Certificateholders, shall operate to divest all right, title and
interest whatsoever, either at law or in equity, of each of them in and
to the property sold, and shall be a perpetual bar, both at law and in
equity, against each of them and their successors and assigns, and
against any and all Persons claiming through or under them.
(iii) Other Actions. The Collateral Agent shall have the right
to cause any other action permitted at law or in equity to be initiated
and prosecuted to enforce this Agreement and any rights granted by
virtue of the pledge of the Collateral hereunder and to collect or
enforce the Notes and the Certificates.
Section 6.04. Waiver of Stay or Extension Laws; Marshalling of
Assets. Each of the Company, the Owner Trustee, and the Indenture Trustee (in
each case to the extent permitted by applicable law) covenants that it will not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
redemption law wherever enacted, now or at any time hereafter in force, in order
to prevent or hinder the enforcement of this Agreement or the absolute sale of
the Collateral or any
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part thereof, or the possession thereof by any purchaser at any sale under this
Article; and each of the Company and the Indenture Trustee (in each case to the
extent permitted by applicable law), for itself and all who may claim under it,
hereby waives the benefit of all such laws, and covenants that none of them will
hinder, delay or impede the execution of any power herein granted to the
Collateral Agent, but will suffer and permit the execution of every such power
as though no such law had been enacted. Each of the Company, the Owner Trustee
and the Indenture Trustee, for itself and all who may claim under it, waives (in
each case to the extent permitted by applicable law) all right to have the
Collateral marshalled upon any foreclosure hereof, and agrees that any court
having jurisdiction to foreclose this Agreement may order the sale of the
Collateral as an entirety without the marshalling thereof.
Section 6.05. Restoration of Rights and Remedies. If the
Collateral Agent has instituted any proceeding to enforce any right or remedy
under this Agreement, and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Collateral Agent, then and
in every such case the Company, the Collateral Agent and the Indenture Trustee
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Collateral Agent shall continue as though no such proceeding
had been instituted.
Section 6.06. Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Collateral Agent is intended to be exclusive
of any other right or remedy, and every right shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law, in equity or otherwise, and each
and every right, power and remedy, whether specifically herein given or
otherwise existing, may be exercised from time to time and as often and in such
order as may be deemed expedient by the Collateral Agent, and the exercise or
the beginning of the exercise of any power or remedy shall not be construed to
be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy.
Section 6.07. Control by Financial Security. So long as no
Financial Security Insolvency has occurred and no Financial Security Default has
occurred and is continuing, Financial Security shall, upon the occurrence and
during the continuation of any of the Servicer Default described in Section 8.01
of the Sale and Servicing Agreement, subject to Article V hereof, have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Collateral Agent hereunder or otherwise or exercising any trust
or power conferred upon the Collateral Agent hereunder provided that:
(1) such direction shall not be in conflict with any rule
of law or with this Agreement or the Sale and Servicing Agreement; and
(2) such Collateral Agent may take any other action deemed
proper by such Collateral Agent that is not inconsistent with such
direction.
Section 6.08. Proceeds Agent as Custodian and Bailee of
Collateral Agent. In order to facilitate the making of payments under the
Contracts, such payments shall be deposited by the Master Servicer in the
Collection Account or the Holding Account, and certain amounts in the Collection
Account shall be deposited in the Spread Account, in accordance with the Sale
and Servicing Agreement. The Proceeds Agent shall retain all proceeds deposited
in the
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Collection Account, the Spread Account and Holding Account as custodian and
bailee of the Collateral Agent for Financial Security. Financial Security hereby
acknowledges that the Proceeds Agent will also hold all such proceeds for the
benefit of the Noteholders and the Certificateholders. Solely for purposes of
perfection under Section 9-305 of the UCC, Financial Security and the Proceeds
Agent hereby acknowledge that the Proceeds Agent is acting as agent and bailee
of the Collateral Agent for Financial Security in holding such property in the
Collection Account, the Spread Account and the Holding Account, and any other
items constituting a part of the Collateral which from time to time come into
the possession of the Proceeds Agent. It is intended that, by the Proceeds
Agent's acceptance of such custodianship and bailment pursuant to this
Agreement, the Collateral Agent for Financial Security, as secured party, will
be deemed to have possession of such Collateral, items, moneys and such other
items for purposes of Section 9-305 of the UCC.
Section 6.09. Indemnification of Collateral Agent. Financial
Security hereby indemnifies and holds the Collateral Agent harmless from and
against any and all judgments, claims, defenses, charges, losses, liabilities,
costs or expenses that the Collateral Agent may incur or that may be claimed
against the Collateral Agent by any Person by reason of any action taken, or any
failure to act, in connection with the duties and responsibilities of the
Collateral Agent under the terms of this Agreement; provided, however, that
Financial Security shall not be required to indemnify the Collateral Agent
pursuant to this Section for any judgments, claims, defenses, charges, losses,
liabilities, costs or expenses to the extent caused by such Collateral Agent's
willful misconduct or gross negligence in any action taken, or any failure to
act, in connection with the duties and responsibilities of the Collateral Agent
under the terms of this Agreement. The Collateral Agent shall have the right to
retain counsel in any action for which indemnification from Financial Security
is provided herein, and the reasonable fees and expenses of such counsel shall
constitute costs and expenses of such Collateral Agent for which indemnification
from Financial Security is provided herein. The Collateral Agent shall be
entitled to submit a written request, with supporting documentation, for any
amounts expended by it for which indemnification is provided herein, as such
amounts are expended or on a periodic basis, as the Collateral Agent shall
choose, and Financial Security shall reimburse to the Collateral Agent the
amount specified in each such written request promptly. The indemnity agreements
contained in this Section shall remain operative and in full force and effect
regardless of the termination of this Agreement.
Section 6.10. Compensation Payable to Collateral Agent. In
consideration of the Collateral Agent's services to be rendered hereunder, the
Master Servicer agrees to pay to the Collateral Agent, on behalf of Financial
Security, the compensation set forth in a separate letter agreement dated as of
the date hereof between the Master Servicer and the Collateral Agent
incorporated herein by this reference. The Collateral Agent acknowledges,
notwithstanding the fact that, in the event that payments from the Collection
Account are insufficient, it shall look solely to the Master Servicer for
payment of its compensation hereunder, that the Collateral Agent is acting
solely as the agent for Financial Security for purposes of this Agreement.
Failure by the Master Servicer to pay the Collateral Agent's compensation
hereunder shall not cause this Agreement to be cancelled, void or voidable or
otherwise terminated or otherwise affect the Collateral Agent's obligations
hereunder.
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Section 6.11. Protection of Financial Security's Security
Interest.
(a) The Company shall execute and file (or cause to be executed
and filed) such financing statements and execute and file (or cause to be
executed and filed) such continuation statements, against the Company, all in
such manner and in such places as may be required by law (whether in the event
of a change of the Company's name, identity or corporate structure, or
otherwise) fully to preserve, maintain, and protect the interest of Financial
Security in the Collateral. The Company shall deliver (or cause to be delivered)
to Financial Security file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) The Company shall not change its name, identity, or corporate
structure in any manner that would, could, or might make any financing statement
or continuation statement filed by the Company, in accordance with paragraph (a)
above, seriously misleading within the meaning of Section 9-402(7) of the UCC,
unless it shall have given the Collateral Agent and Financial Security at least
60 days' prior written notice thereof.
(c) The Company shall give Financial Security at least 60 days'
prior written notice of any relocation of its principal executive offices if, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement. The Company shall at all times
maintain each office from which it shall service the Contracts, and its
principal executive office, within the United States of America.
(d) Upon request, the Company shall furnish to Financial
Security, within seven Business Days, a list of the Contracts then held as part
of the Trust, together with a reconciliation of such list to the Schedule of
Contracts and to each of the Master Servicer's certificates furnished pursuant
to the Sale and Servicing Agreement before such request; provided, however, that
Financial Security shall not make such request more than four times in any
calendar year. Neither the Company nor the Master Servicer shall grant a
security interest in, or lien upon, or in any manner encumber the Collateral, or
release or waive the security interest granted herein, except as contemplated
herein.
(e) In the event that either the Master Servicer or the Company
relocates its principal executive office, the Company shall provide an Opinion
of Counsel to Financial Security, in form and substance satisfactory to
Financial Security, to the effect that upon the filing of any necessary
amendment to any previously filed financing or continuation statement or a new
financing statement, the Collateral Agent's security interest in the Collateral
granted hereunder shall remain valid and effective.
(f) The Company shall pay all reasonable costs and disbursements
in connection with the perfection and the maintenance of perfection, as against
all third parties, of Financial Security's right, and security interest in and
to the Collateral.
Section 6.12. Representations and Warranties of Indenture
Trustee. The representations and warranties of the Indenture Trustee, made as
Indenture Trustee, in Section 6.13 of the Indenture are incorporated by
reference herein as if set forth in full herein and Financial Security may rely
upon such representations and warranties.
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Section 6.13. Certain Guaranties. Each of the Indenture Trustee
and the Master Servicer agrees that it (i) shall not treat any ledger account or
deposit account as an "Eligible Account" by reason of a guaranty of the type
described in clause (ii)(a) of the definition of "Eligible Account" in the Sale
and Servicing Agreement unless Financial Security shall have previously approved
in writing the form of such guaranty and (ii) shall not treat any investment as
an "Eligible Investment" by reason of a guaranty of the type described in clause
(iii)(b) or clause (vii) of the definition of "Eligible Investments" in the Sale
and Servicing Agreement unless Financial Security shall have previously approved
in writing the form of such guaranty.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default. The occurrence of any of the
following events shall constitute an Event of Default hereunder:
(a) any demand for payment shall be made under either of the
Policies;
(b) any representation or warranty made by the Trust, the
Company, WFS, WII under any of the Transaction Agreements, or in any certificate
or report furnished under any of the Transaction Agreements, shall prove to be
untrue or incorrect in any material respect, provided however, a violation of
Section 3.01(b) of the Sale and Servicing Agreement as to which the Company
shall have in a timely manner cured or repurchased the Contract as to each such
Financed Vehicle pursuant to Section 3.02 of the Sale and Servicing Agreement
shall not constitute an Event of Default hereunder;
(c) (i) the Trust, WII, the Company or WFS shall fail to pay when
due any amount payable by the Company or WFS under any of the Transaction
Agreements (other than payments of principal and interest on the Notes and the
Certificates); (ii) the Trust, WII, the Company or WFS shall have asserted that
any of the Transaction Agreements to which it is a party is not valid and
binding on the parties thereto; or (iii) any court, governmental authority or
agency having jurisdiction over any of the parties to any of the Transaction
Agreements or property thereof shall find or rule that any material provision of
any of the Transaction Agreements is not valid and binding on the parties
thereto; provided that as a result of such finding or ruling the rights or
remedies of Financial Security under this Agreement shall have been directly or
indirectly impaired in any material respect;
(d) the Trust, WII, the Company or WFS shall fail to perform or
observe any other covenant or agreement contained in any of the Transaction
Agreements (except for the obligations described under clause (b) or (c) above)
and such failure shall continue for a period of 30 days after written notice
given to the Trust, WII, the Company or WFS (as applicable); provided that, if
such failure shall be of a nature that it cannot be cured within 30 days, such
failure shall not constitute an Event of Default hereunder if within such 30-day
period such party shall have given notice to Financial Security of corrective
action it proposes to take, which corrective action is agreed in writing by
Financial Security to be satisfactory and such party shall thereafter pursue
such corrective action diligently until such default is cured, and provided
further as a result of such failure the rights or remedies of Financial Security
under this Agreement shall have been directly or indirectly impaired in any
material respect;
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(e) there shall have occurred an "Event of Default" as specified
in Section 5.01 of the Indenture;
(f) the Trust shall adopt a voluntary plan of liquidation or
shall fail to pay its debts generally as they come due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors, or shall institute any proceeding
seeking to adjudicate the Trust insolvent or seeking a liquidation, or shall
take advantage of any insolvency act, or shall commence a case or other
proceeding naming the Trust as debtor under the United States Bankruptcy Code or
similar law, domestic or foreign, or a case or other proceeding shall be
commenced against the Trust under the United States Bankruptcy Code or similar
law, domestic or foreign, or any proceeding shall be instituted against the
Trust seeking liquidation of its assets and the Trust shall fail to take
appropriate action resulting in the withdrawal or dismissal of such proceeding
within 30 days or there shall be appointed or the Trust consent to, or acquiesce
in, the appointment of a receiver, liquidator, conservator, trustee or similar
official in respect of the Trust or the whole or any substantial part of its
properties or assets, or the Trust shall take any corporate action in
furtherance of any of the foregoing or the Trust terminates pursuant to Section
9.02 of the Trust Agreement;
(g) the Trust becomes taxable as an association (or publicly
traded partnership) taxable as a corporation for federal or state income tax
purposes;
(h) on any Distribution Date, the sum of Net Collections with
respect to such Distribution Date and the amounts available in the Spread
Account is less than the sum of the amounts payable on such Distribution Date
pursuant to clauses (i) through (ix) of Section 5.05 of the Sale and Servicing
Agreement; and
Section 7.02. Remedies; Waivers.
(a) Upon the occurrence of an Event of Default, Financial
Security may exercise any one or more of the rights and remedies set forth
below:
(i) declare all indebtedness of every type or description owed
by the Trust, the Company, WFS or WII to Financial Security, including,
without limitation, the entire outstanding balance of further
installments of the Premium, to be immediately due and payable, and
shall there upon be immediately due and payable; and
(ii) the Collateral Agent, subject to Article V hereof, shall
have the right to take any action or initiate any proceeding at law or
equity available to it to enforce the terms of this Agreement.
(b) Financial Security shall have the right, to be exercised in
its complete discretion, to waive any Event of Default hereunder, by a writing
setting forth terms, conditions, and extent of such waiver signed by Financial
Security and delivered to an Authorized Officer of the Company. Unless such
writing expressly provides to the contrary, any waiver so granted shall extend
only to the specific event or occurrence that gave rise to the Event of Default
so waived and not to any other similar event or occurrence that occurs
subsequent to the date of such waiver.
(c) Unless otherwise expressly provided, no remedy herein
conferred upon or reserved is intended to be exclusive of any other available
remedy, but each remedy shall be
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cumulative and shall be in addition to other remedies given under the
Transaction Agreements or existing at law or in equity. No delay or failure to
exercise any right or power accruing under any Transaction Agreements upon the
occurrence of any Event of Default or otherwise shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle Financial Security to exercise any remedy reserved to Financial
Security in this Article, it shall not be necessary to give any notice.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Changes and Modifications. This
Agreement may be amended, changed, modified, altered or terminated only by
written instrument or written instruments signed by the parties hereto.
Section 8.02. Notices. All notices, certificates or other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, sent by overnight courier, or sent by
certified or registered mail, postage prepaid, return receipt requested,
addressed to the appropriate Notice Address. A duplicate copy of each notice,
certificate or other communication given hereunder to the Company, WFS, WII,
Financial Security, the Trust, the Indenture Trustee or the Collateral Agent
shall also be given to each of the others. Each party hereto may, by telecopy
notice or by such other notice described hereunder, designate any further or
different address to which subsequent notices, certificates or other
communications shall be sent without any requirement of execution of any
amendment to this Agreement.
Section 8.03. Method of Payment. Except as otherwise expressly
provided herein, all payments to be made hereunder shall be made by wire
transfer or by certified or bank check payable to the appropriate party.
Section 8.04. Further Assurances and Corrective Instruments.
(a) To the fullest extent permitted by law, the parties hereto
agree that they will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such supplements hereto and
such further instruments as Financial Security may reasonably request and as may
be reasonably required in Financial Security's judgment to effectuate the
intention of or facilitate the performance of this Agreement and to protect the
interests of Financial Security and the Collateral Agent, including, without
limitation, the creation and maintenance of Financial Security's security
interest in the Collateral pursuant to this Agreement, subject to the
Intercreditor Agreement. The Company and the Master Servicer hereby authorize
the Collateral Agent to file, at the direction of Financial Security, financing
statements and amendments thereto relating to all or any part of the Collateral
without the signature of an officer of such entity where permitted by law in
order to maintain and perfect the security interests granted by this Agreement.
(b) In order to facilitate the servicing of the Contracts by the
Master Servicer, the Master Servicer is hereby authorized, in the name and on
behalf of Financial Security, the Trust, the Indenture Trustee and the Company,
to execute instruments of satisfaction or
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cancellation, or of partial or full release or discharge, and other comparable
instruments with respect to the Contracts and with respect to the Financed
Vehicles (and the Indenture Trustee shall execute any such documents on request
of the Master Servicer), subject to the obligations of the Master Servicer under
the Sale and Servicing Agreement.
Section 8.05. Term of Agreement. This Agreement shall continue in
effect until the later of (a) the date on which Financial Security has no
further liability under the Policies or (b) the date on which each Western
Entity shall have paid or caused to be paid to Financial Security all amounts to
be paid by such Western Entity hereunder.
Section 8.06. Assignments; Third-Party Rights; Reinsurance.
(a) This Agreement shall be a continuing obligation of the
parties hereto and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither the
Company, WFS, WII, nor the Collateral Agent may assign its rights or obligations
under this Agreement, or delegate any of its duties hereunder, without the prior
written consent of Financial Security. Any assignment made in violation of this
Agreement shall be null and void.
(b) Financial Security shall have the right to give
participations in its rights under this Agreement and to enter into contracts of
reinsurance with respect to the Policies upon such terms and conditions as
Financial Security may in its discretion determine; provided, however, that no
such participation or reinsurance agreement or arrangement shall relieve
Financial Security of any of its obligations hereunder or under the Policies and
provided further that Financial Security shall reimburse the Company, WFS or
WII, as the case may be, for any expense incurred by such Western Entity in
connection with the giving by Financial Security of participations or the
entering into such contracts of reinsurance.
(c) In addition, Financial Security shall be entitled to assign
or pledge to any bank or other lender providing liquidity or credit with respect
to the transactions contemplated by the Transaction Agreements or this Agreement
or the obligations of Financial Security in connection therewith any rights of
Financial Security under the Transaction Agreements or this Agreement or with
respect to any real or personal property or other interests pledged to Financial
Security, or in which Financial Security has a security interest, in connection
with the transactions contemplated by the Transaction Agreements or this
Agreement; provided that Financial Security shall reimburse the Company, WFS or
WII, as the case may be, for any expense incurred by either such Western Entity
in connection with the making by Financial Security of any such assignment or
pledge.
(d) Except as provided herein with respect to participants and
reinsurers, nothing in this Agreement shall confer any right, remedy or claim,
express or implied, upon any Person, including, particularly, any Noteholder or
Certificateholder, other than Financial Security, against the Company, WFS or
WII, and all the terms, covenants, conditions, promises and agreements contained
herein shall be for the sole and exclusive benefit of the parties hereto and
their successors and permitted assigns. Neither the Owner Trustee or the
Indenture Trustee nor any Noteholder or Certificateholder shall have any right
to payment from any premiums paid or payable hereunder or from any other amounts
paid by the Company, WFS or WII pursuant to Section 3.03 or 3.04 hereof.
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Section 8.07. Consent of Financial Security. In the event that
Financial Security's consent is required under the terms hereof, or under the
terms of any other Transaction Agreement, it is understood and agreed that,
except as otherwise provided expressly herein or in any other Transaction
Agreement, the determination whether to grant or withhold such consent shall be
made solely by Financial Security in its absolute discretion.
Section 8.08. Right to Enforce Sale and Servicing Agreement. The
parties hereto acknowledge that Financial Security is a beneficiary of the Sale
and Servicing Agreement, and without limiting or restricting any of the
provisions thereof or hereof, Financial Security shall have the right to enforce
the provisions of the Sale and Servicing Agreement to the extent that it could
if it were a signatory of such agreement.
Section 8.09. WFS and WII as Parties Only for Certain Provisions.
(a) Notwithstanding any provision to the contrary contained in
this Agreement, the parties hereto agree that WFS is joined as a party to this
Agreement solely for purposes of Sections 2.08, 2.11, 3.02, 3.06, 3.07, 3.08,
3.09, 3.10, 3.11, 3.12 and 6.13 of this Agreement and the other Sections
contained in Article VII of this Agreement.
(b) Notwithstanding any provisions to the contrary contained in
this Agreement, the parties hereto agree that WII is joined as a party to this
Agreement solely for purposes of Sections 2.04, 2.05, 2.06, 3.02, 3.07 and 3.08,
of this Agreement and the other Sections contained in Article VII of this
Agreement.
Section 8.10. Severability. In the event that any provision of
this Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, the parties hereto agree that such holding shall not invalidate or
render unenforceable any other provision hereof. The parties hereto further
agree that the holding by any court of competent jurisdiction that any remedy
pursued by Financial Security hereunder is unavailable or unenforceable shall
not affect in any way the ability of Financial Security to pursue any other
remedy available to it.
Section 8.11. Reports. Any report, certificate, statement or
notice which the Company, WFS as the Master Servicer, and any successor Master
Servicer, is required to provide to the Owner Trustee, Indenture Trustee,
Noteholders or the Certificateholders under the Sale and Servicing Agreement
shall also be provided to Financial Security within the same time period
specified in the Sale and Servicing Agreement.
Section 8.12. Counterparts. This Agreement may be executed in
counterparts by the parties hereto and each such counterpart shall be considered
an original and all such counterparts shall constitute one and the same
instrument.
Section 8.13. Governing Law. This Agreement shall be construed,
and the obligations, rights and remedies of the parties hereunder shall be
determined, in accordance with the laws of the State of New York.
Section 8.14. Headings. The headings of articles and sections and
the table of contents contained in this Agreement are provided for convenience
only. They form no part of this Agreement and shall not affect its construction
or interpretation. Unless otherwise indicated, all references to articles and
sections in this Agreement refer to the corresponding articles and sections of
this Agreement.
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Section 8.15. Trial by Jury Waived. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN
CONNECTION WITH ANY OF THE TRANSACTION AGREEMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREUNDER. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT IT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THE
TRANSACTION AGREEMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THIS
WAIVER.
Section 8.16. Limited Liability. No recourse under any
Transaction Agreement shall be had against, and no personal liability shall
attach to, any officer, employee, director, affiliate or shareholder of any
party hereto, as such, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise in respect of any of
the Transaction Agreements, the Notes, the Certificates or the Policies, it
being expressly agreed and understood that each Transaction Agreement is solely
a corporate obligation of each party hereto, and that any and all personal
liability, either in common law or in equity, or by statute or constitution, of
every such officer, employee, director, affiliate or shareholder for breaches by
any party hereto of any obligations under any Transaction Agreement is hereby
expressly waived as a condition of and in consideration for the execution and
delivery of this Agreement.
Section 8.17. Limited Liability of Chase Manhattan Bank Delaware.
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Chase Manhattan Bank Delaware not
individually or personally but solely as Owner Trustee on behalf of the Trust,
(b) each of the representations, undertakings and agreements herein made on the
part of the Trust is made and intended not as personal representations,
undertakings and agreements by Chase Manhattan Bank Delaware, but are made and
intended for the purpose of binding only the Trust Estate, (c) nothing herein
contained shall be construed as creating any liability on Chase Manhattan Bank
Delaware, individually or personally, to perform any covenant of the Trust
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any person claiming by, through or
under such parties and (d) under no circumstances shall Chase Manhattan Bank
Delaware be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement.
Section 8.18. Entire Agreement. This Agreement and the Policies
set forth the entire agreement between the parties with respect to the subject
matter thereof, and this Agreement supersedes and replaces any agreement or
understanding that may have existed between the parties prior to the date hereof
in respect of such subject matter.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above mentioned.
WFS FINANCIAL 1999-C OWNER TRUST
By: CHASE MANHATTAN BANK DELAWARE
not in its individual capacity, but
solely in its capacity as Owner
Trustee under the Trust Agreement
By:_________________________________________
Title:
WFS FINANCIAL AUTO LOANS, INC.
By:_________________________________________
Title:
WFS FINANCIAL INC.
By:_________________________________________
Title:
WFS INVESTMENTS, INC.
By:_________________________________________
Title:
FINANCIAL SECURITY ASSURANCE INC.
By:_________________________________________
Title: Authorized Officer
BANKERS TRUST COMPANY,
as Collateral Agent, Proceeds Agent
and Indenture Trustee
By:_________________________________________
Title: