EXHIBIT 10.3
INSURANCE, INDEMNITY AND PLEDGE AGREEMENT
Dated as of May 1, 2002
among
WFS FINANCIAL 2002-2 OWNER TRUST,
WFS RECEIVABLES CORPORATION
WFS FINANCIAL INC,
FINANCIAL SECURITY ASSURANCE INC.,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent, Proceeds Agent and Indenture Trustee
WFS FINANCIAL 2002-2 OWNER TRUST
INTRODUCTION.........................................................................1
AGREEMENTS...........................................................................1
ARTICLE I DEFINITIONS........................................................2
Section 1.01. Definitions....................................................2
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS..........................6
Section 2.01. Representations and Warranties of the Trust....................6
Section 2.02. Affirmative Covenants of the Trust.............................9
Section 2.03. Negative Covenants of the Trust...............................11
Section 2.04. [Reserved]....................................................12
Section 2.05. Representations and Warranties of WFSRC.......................12
Section 2.06. Representations and Warranties of WFS.........................15
Section 2.07. [Reserved]....................................................17
Section 2.08. Affirmative Covenants of WFSRC................................17
Section 2.09. [Reserved]....................................................20
Section 2.10. Negative Covenants of WFSRC...................................20
Section 2.11. Affirmative Covenants of WFS..................................21
ARTICLE III THE POLICIES; INDEMNIFICATION.....................................23
Section 3.01. Agreement to Issue Policy.....................................23
Section 3.02. Conditions Precedent to Issuance of Policy....................23
Section 3.03. Premium.......................................................27
Section 3.04. Reimbursement Obligation......................................28
Section 3.05. Non-Recourse Obligation.......................................29
Section 3.06. Indemnification...............................................30
Section 3.07. Liability Absolute............................................34
Section 3.08. Liability of Financial Security...............................35
Section 3.09. Payment of Costs, Fees and Expenses...........................35
Section 3.10. Payment Procedure.............................................36
Section 3.11. Business Days.................................................36
Section 3.12. Waivers and Consents by Seller and WFS........................36
Section 3.13. [Reserved]....................................................37
ARTICLE IV PLEDGE OF COLLATERAL..............................................37
Section 4.01. Obligations Secured Hereby....................................37
Section 4.02. Granting Clause...............................................38
Section 4.03. Release of Collateral.........................................38
ARTICLE V INTERCREDITOR PROVISIONS..........................................39
Section 5.01. Financial Security's Direction Upon Servicer Default..........39
Section 5.02. Financial Security's Direction of Insolvency Proceedings......40
ARTICLE VI THE COLLATERAL AGENT; REMEDIES....................................40
Section 6.01. Appointment and Powers of Collateral Agent....................40
Section 6.02. Successor Collateral Agent....................................41
Section 6.03. Remedies Available to Collateral Agent........................42
Section 6.04. Waiver of Stay or Extension Laws; Marshalling of Assets.......43
Section 6.05. Restoration of Rights and Remedies............................43
Section 6.06. Remedies Cumulative...........................................44
Section 6.07. Control by Financial Security.................................44
Section 6.08. Proceeds Agent as Custodian and Bailee of Collateral Agent....44
Section 6.09. Indemnification of Collateral Agent...........................45
Section 6.10. Compensation Payable to Collateral Agent......................45
Section 6.11. Protection of Financial Security's Security Interest..........45
Section 6.12. Representations and Warranties of Indenture Trustee...........46
Section 6.13. Certain Guaranties............................................47
ARTICLE VII EVENTS OF DEFAULT.................................................47
Section 7.01. Events of Default.............................................47
Section 7.02. Remedies; Waivers.............................................48
ARTICLE VIII MISCELLANEOUS.....................................................49
Section 8.01. Amendments, Changes and Modifications.........................49
Section 8.02. Notices.......................................................49
Section 8.03. Method of Payment.............................................49
Section 8.04. Further Assurances and Corrective Instruments.................49
Section 8.05. Term of Agreement.............................................50
Section 8.06. Assignments; Third-Party Rights; Reinsurance..................50
Section 8.07. Consent of Financial Security.................................51
Section 8.08. Right to Enforce Sale and Servicing Agreement.................51
Section 8.09. WFS as Party Only for Certain Provisions......................51
Section 8.10. Severability..................................................51
Section 8.11. Reports.......................................................51
Section 8.12. Counterparts..................................................52
Section 8.13. GOVERNING LAW.................................................52
Section 8.14. Headings......................................................52
Section 8.15. Trial by Jury Waived..........................................52
Section 8.16. Limited Liability.............................................52
Section 8.17. Limited Recourse..............................................52
Section 8.18. Limited Liability of Chase Manhattan Bank USA, National
Association...................................................53
Section 8.19. Entire Agreement..............................................53
EXHIBITS
EXHIBIT A Forms of WFS Assignment and Collateral Assignment
EXHIBIT B 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 WFSRC and WFS
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
INSURANCE, INDEMNITY AND PLEDGE AGREEMENT
THIS INSURANCE, INDEMNITY AND PLEDGE AGREEMENT is made as of May
1, 2002, by and among WFS FINANCIAL 2002-2 OWNER TRUST, a Delaware business
trust (the "Trust"), WFS RECEIVABLES CORPORATION, a California corporation
("WFSRC" or "Seller"), WFS FINANCIAL INC, a California corporation ("WFS"),
FINANCIAL SECURITY ASSURANCE INC., a New York financial guaranty insurance
company ("Financial Security"), and DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly known as 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
WFSRC is the owner of the Contracts. WFSRC proposes to pledge and
assign 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 the 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 Seller has agreed to convey a security interest in the
Collateral and all the property conveyed by it to the Trust (with the exception
of the Policy) 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 Policy
to the Indenture Trustee to guarantee payment of the Scheduled Payments (as
defined in such Policy) on each Distribution Date in respect of the Notes.
Financial Security is willing to issue the Policy for the purpose
stated above if the Trust, the Seller, WFS and the Indenture Trustee enter into
this Agreement and, in order to secure the Seller's obligations hereunder, the
Seller 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 Policy, the security to be provided in respect of such
indemnity and reimbursement obligations, and certain other matters.
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 Seller or
any corporation, the president, the chief financial officer or any vice
president.
"Bank" means, Western Financial Bank, a federally-chartered
savings association.
"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 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
Seller 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, Deutsche Bank Trust Company
Americas, as collateral agent for Financial Security pursuant to this Agreement
and, thereafter, any successor Collateral Agent named pursuant to this
Agreement.
"Collateral Assignment" means, with respect to any Contracts, the
original instrument of collateral assignment of such Contracts by the Seller to
the Collateral Agent, substantially in the form included in Exhibit A hereto.
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"Controlling Party" means Financial Security so long as no
Insurer Insolvency shall have occurred and no Insurer 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 WFSRC.
"Indemnification Agreement" means the Indemnification Agreement,
dated as of the date hereof, among the Seller, 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 JPMorgan Chase 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.
"Notice Address" means
(a) as to WFSRC:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
(b) as to WFS:
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
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(c) as to the Trust:
WFS Financial 2002-2 Owner Trust
c/o Chase Manhattan Bank USA, National Association
as Owner Trustee
c/o ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇/▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
(d) as to Financial Security:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Oversight
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 -- Transaction
Oversight)
(e) as to the Collateral Agent:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust & Agency Services --
Structured Finance Services
cc: Deutsche Bank Trust Company Americas
c/o DB Services New Jersey Inc.
Attention: Corporate Trust & Agency Services --
Structured Finance Services
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇ JCY03-0606
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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(f) as to the Proceeds Agent:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust & Agency Services --
Structured Finance Services
cc: Deutsche Bank Trust Company Americas
c/o DB Services New Jersey Inc.
Attention: Corporate Trust & Agency Services --
Structured Finance Services
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇ JCY03-0606
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(g) as to the Indenture Trustee:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust & Agency Services --
Structured Finance Services
cc: Deutsche Bank Trust Company Americas
c/o DB Services New Jersey Inc.
Attention: Corporate Trust & Agency Services --
Structured Finance Services
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇ JCY03-0606
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
"Obligations" has the meaning set forth in Section 4.01 hereof.
"Owner Trustee" means Chase Manhattan Bank USA, National
Association or its successors in interest, acting not individually but solely on
owner trustee under the Trust Agreement.
"Policy" means the financial guaranty insurance policy, including
endorsements thereto, issued by Financial Security with respect to the Notes,
substantially in the form attached as Exhibit B hereto.
"Premium" means the premium payable to Financial Security by the
Seller as consideration for the issuance of the Policy, as set forth in a letter
agreement between the Seller and Financial Security.
"Proceeds Agent" means, initially, Deutsche Bank Trust Company
Americas, 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 2.05(g) of this
Agreement.
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"Registration Statement" has the meaning set forth in Section
2.05(g) of this Agreement.
"Representative" means Deutsche Bank Securities Inc., as
representative of the several Underwriters.
"Rules and Regulations" has the meaning set forth in Section
2.05(g) of this Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of the date hereof, among the Seller, 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" means WFSRC.
"Seller Assignments" means the Assignments, as such term is
defined in the Sale and Servicing Agreement.
"Spread Account" means the Spread Account established pursuant to
the Sale and Servicing Agreement, in favor of the Indenture Trustee on behalf of
the Holders of the Notes 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.
"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 May 17,
2002, as amended and restated as of May 30, 2002, among the Seller, WFS,
Financial Security and Chase Manhattan Bank USA, National Association, as Owner
Trustee.
"Underwriter Information" has the meaning set forth in Section
3.06(a)(i) of this Agreement.
"Underwriters" means Deutsche Bank Securities Inc. Banc of
America Securities LLC, Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc., and each other institution, if any, named as an underwriter in the
Underwriting Agreement.
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"Underwriting Agreement" means the Underwriting Agreement, dated
May 21, 2002 among the Seller, WFS and the Representative.
"Western Entities" means WFSRC and WFS.
"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 WFSRC, 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 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 the 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
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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 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.
8
(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 Seller'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 Noteholders; 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 Noteholders; 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 Noteholders; at such time as it is
received by the Master Servicer and until deposited in the Collection Account;
the proceeds of such deposited check that remain in the Collection 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.
(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
9
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. The Trust shall, 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 Policy, surrender the 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 Seller, WFS and the Bank,
under the Trust's
10
own name and as a separate and distinct entity from the Seller, WFS and the
Bank. The Trust shall maintain trust records and books of account separate from
those of the Seller, 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 Seller and WFS 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,
clearly disclose that the Policy is 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, state and local
income and franchise 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.
11
(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 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. [Reserved].
Section 2.05. Representations and Warranties of WFSRC. WFSRC
represents and warrants to Financial Security as follows:
(a) Due Organization. WFSRC 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; WFSRC 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 WFSRC; WFSRC holds all material licenses, certificates and permits
from all governmental authorities necessary for the conduct of its business as
presently conducted. WFSRC's principal place of business, chief executive office
and the office where it keeps its records is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, #▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
(b) Corporate Power and Authority. WFSRC has full right, power
and authority to own its properties and to conduct its business as presently
conducted; WFSRC has the power and authority to execute and deliver this
Agreement and each other Transaction Agreement to which WFSRC is a party and to
carry out the terms of each such agreement, and has full power and authority to
transfer and assign the property to be transferred and assigned to and deposited
with the Owner Trustee as part of the
12
Trust and has duly authorized such transfer 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 WFSRC is a party has
been duly authorized by WFSRC by all necessary corporate action.
(c) Valid and Binding Obligations. Each of the Transaction
Agreements to which WFSRC is a party constitutes a legal, valid, and binding
obligation of WFSRC, 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
WFSRC 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 WFSRC, or any indenture, agreement, or other
instrument to which WFSRC 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 WFSRC of any court or of any federal or state
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over WFSRC 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 WFSRC of this Agreement or of any other
Transaction Agreement to which WFSRC 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 WFSRC'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 WFSRC or its properties: (A) asserting
the invalidity of this Agreement, any other Transaction Agreement to which WFSRC
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
13
Agreements to which WFSRC is a party, (C) seeking any determination or ruling
that might materially and adversely affect the performance by WFSRC of its
obligations under, or the validity or enforceability of, this Agreement or any
other Transaction Agreement to which WFSRC is a party, or (D) involving WFSRC
and which might adversely affect the federal income tax attributes of the Notes,
the Certificates or the Trust.
(g) Registration Statement; Prospectus. The Seller has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333-86250), including a base prospectus and
prospectus supplement for the registration of the Notes under the Securities
Act, (the "Registration Statement") and Seller has filed such amendments
thereto, if any, and such amended prospectuses and prospectus supplements as may
have been required to the date hereof, and will file such additional amendments
thereto and such amended prospectuses and prospectus supplements as may
hereafter be required. As used herein, the term "Registration Statement" means
the Registration Statement including the exhibits thereto and any material
incorporated by reference therein pursuant to the Securities Act and the
Exchange Act, 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"). "Prospectus" means the Base Prospectus dated May 21, 2002,
that was filed pursuant to Rule 424(b) on May 28, 2002, together with the
Prospectus Supplement, also dated May 21, 2002. "Prospectus Supplement" means
the supplement to the Base Prospectus included in the Prospectus. 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 Note 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 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 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 Seller in writing by
Financial Security expressly for use therein.
(h) Incorporation of Representations and Warranties. All of the
representations and warranties made by WFSRC 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.
14
(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
WFSRC'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 owned by WFSRC, 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 Noteholders; 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 Noteholders; assuming deposit of each
check constituting proceeds of the Contracts in the Collection Account, 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 Noteholders; at such time as it is received by the Master Servicer and until
deposited in the Collection Account; the proceeds of such deposited check that
remain in the Collection 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.
(k) Valid Transfer of Contracts. The Sale and Servicing Agreement
and the Seller Assignments constitute a valid sale, transfer and assignment, as
applicable, of the Contracts, enforceable against creditors of and purchasers
from WFSRC, 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) [Reserved].
Section 2.06. Representations and Warranties of WFS. WFS
represents and warrants to Financial Security as follows:
15
(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 WFSRC for inclusion in the Trust and the Spread Account
and has duly authorized such sale and assignment to WFSRC 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 WFSRC, 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 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.
16
(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 Notes or the Certificates.
(g) Affirmation and Incorporation of Certain Representations and
Warranties. WFS represents and warrants to Financial Security that the
representations and warranties of WFSRC set forth in Section 2.05 hereof, in the
Underwriting Agreement, in Section 3.01(b) of the Sale and Servicing Agreement
and in 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 WFSRC, 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.
(i) Financial Information. The audited consolidated financial
statements of WFS for the fiscal year ended December 31, 2001 and the unaudited
consolidated financial statements of WFS for the fiscal quarter ended March 31,
2002, 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
17
Transaction Agreements. Since March 31, 2002, there has been no material adverse
change in the business, financial condition or operations of WFS.
Section 2.07. [Reserved].
Section 2.08. Affirmative Covenants of WFSRC. WFSRC covenants and
agrees with Financial Security that, at all times during the term of this
Agreement:
(a) Compliance with Agreements. WFSRC will comply with all terms
and conditions of this Agreement and each other Transaction Agreement to which
it is a party. WFSRC 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. WFSRC shall keep proper books and records, in which full and
correct entries shall be made of financial transactions and the assets and
business of WFSRC in accordance with generally accepted accounting principles
consistently applied. WFSRC 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. WFSRC 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 WFSRC stating that:
(i) a review of WFSRC's performance under this Agreement
and the other Transaction Agreements to which WFSRC 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, WFSRC has fulfilled all its obligations under this
Agreement and the other Transaction Agreements to which WFSRC 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.
WFSRC 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 WFSRC as may relate to the Notes, the Certificates and the
obligations of WFSRC under this Agreement and the other Transaction Agreements
to which WFSRC is a party; and (ii) to discuss the affairs, finances and
accounts of WFSRC with any of its respective officers, directors and
representatives, including its Independent Accountants.
18
(e) Maintain Licenses. WFSRC shall maintain all licenses,
permits, charters and registrations that are material to the performance by
WFSRC of its obligations under the Transaction Agreements to which it is a party
or by which WFSRC is bound.
(f) Financing Statements and Further Assurances. WFSRC 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 WFSRC 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. WFSRC 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 WFSRC is a party. WFSRC 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 WFSRC has merged or the Person which
acquires by conveyance, transfer or lease substantially all the assets of WFSRC
as an entirety, can lawfully perform the obligations of WFSRC 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
WFSRC under this Agreement.
(h) Maintenance of Separate Corporate Existence. WFSRC shall at
all times hold itself out to the public, including WFS and the Bank, under
WFSRC'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 WFSRC (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 WFSRC. WFSRC 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. WFSRC shall not engage in
business transactions with any of its Affiliates on terms and conditions less
favorable to WFSRC than those available to WFSRC for comparable transactions
from Persons who are not Affiliates of WFSRC. WFSRC shall maintain its chief
executive office, principal place of business and the office where it keeps its
records in the State of Nevada and separate and apart from any office of the
Master Servicer.
19
(i) Exercise of Optional Repurchase under the Sale and Servicing
Agreement. Except as otherwise consented to by the Insurer, WFSRC shall ensure
that as Holder of the WFSRC Certificate, if the optional repurchase is exercised
pursuant to Section 3.10 of the Sale and Servicing Agreement, no more than 50%
of any funds used for the exercise of such repurchase option shall be obtained
from WFS or the Bank; provided however, that if WFSRC is the Holder of the WFSRC
Certificate and seeks to exercise the optional repurchase pursuant to Section
3.10 in connection with a further securitization of such Contracts, at such time
as the sum of the Principal Balances of such Contracts is greater than or equal
to 10% of the Cut-Off Date Aggregate Principal Balance, then WFSRC may borrow
from either WFS or the Bank an amount up to 10% of the Aggregate Principal
Balance; provided further, that any such borrowing must be on an arms-length
basis and the term of such borrowing shall be limited to no more than 90 days.
(j) Compliance with Article 76 of New York Insurance Law. WFSRC
shall ensure that the Prospectus, and any supplements or amendments thereto, and
every preliminary prospectus delivered with respect to the Notes, clearly
disclose that the Policy is not covered by the property/casualty insurance
security fund specified in Article 76 of the New York Insurance Law.
(k) Incorporation of Covenants. WFSRC agrees to comply with each
of the covenants of WFSRC set forth in the Transaction Agreements and hereby
incorporates such covenants by reference as if each were set forth herein.
(l) Certificates. Except as may be agreed to by Financial
Security, in its sole discretion, WFSRC shall purchase from the Trust and
thereafter retain beneficial and record ownership of the WFSRC Certificate.
(m) Notification of Failure to Perform or Observe Certain
Covenants or Agreements. WFSRC shall promptly deliver to WFS a copy of any
written notice delivered to WFSRC pursuant to Section 5.01(d) concerning any
failure to perform or observe any covenant or agreement contained in any of the
Transaction Agreements by WFS.
Section 2.09. [Reserved].
Section 2.10. Negative Covenants of WFSRC. WFSRC agrees and
covenants with Financial Security that at all times during the term of this
Agreement:
(a) Amendments to Organizational Documents. WFSRC 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. Except as contemplated in connection with the
transaction to which this Agreement relates, without the prior written consent
of Financial Security, WFSRC shall not create, incur, assume or suffer to exist
any
20
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 WFSRC as a debtor,
or sign any security agreement authorizing any secured party thereunder to file
such financing statement.
(c) Creation of Indebtedness. Except as contemplated in
connection with the transaction to which this Agreement relates, without the
prior written consent of Financial Security, WFSRC 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, WFSRC 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, WFSRC shall not form, or cause to be formed, any subsidiaries.
(f) Insolvency. WFSRC 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. WFSRC 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. WFSRC shall not be unable to, or admit in
writing its inability to, pay its debts.
(g) Impairment of Rights. WFSRC 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. WFSRC 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
21
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.
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, the Noteholders 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.
22
(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.
(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 WFSRC 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 Policy. Financial Security
agrees to issue the Policy subject to the satisfaction of the conditions
hereinafter set forth.
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Section 3.02. Conditions Precedent to Issuance of Policy.
(a) The obligation of Financial Security to issue the Policy 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 WFSRC, (ii) WFSRC shall have created
a valid security interest in the Collateral in favor of the Collateral Agent,
(iii) WFSRC shall have assigned, conveyed, pledged 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 WFSRC, threatened by the
Commission and any request for 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 Policy 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 stating that nothing has come to the attention of such Western
Entity to indicate that the Registration Statement, the Prospectus or
the Prospectus Supplement, 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 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
24
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
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
25
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 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
LLP, counsel to the Seller, WFS and the Bank, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
LLP, counsel to the Seller, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
LLP, special tax counsel to the Seller, WFS and the Bank, 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;
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(xiii) a favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A., 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 LLP, 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;
(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 WFSRC 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 Seller 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 Seller 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.
27
Section 3.03. Premium. In consideration of the issuance by
Financial Security of the Policy, the Seller shall pay to Financial Security the
initial installment of the Premium at the time of delivery of the Policy and
further installments of the Premium, all in accordance with the terms of the
letter agreement between the Seller and Financial Security referred to in the
definition of "Premium" set forth herein. Failure by the Seller to pay any such
further installments of the Premium shall not cause the Policy to be cancelled
and shall not in any way relieve Financial Security of its obligations to make
any payments under the Policy. 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
Policy 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 Seller 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 Policy, 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 WFSRC 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 Policy;
(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 Policy, including,
but not limited to, any fees and charges in connection with any accounts
established to facilitate payments under the Policy, to the extent
Financial Security has not been immediately reimbursed on the date that
any amount is paid by Financial Security under the Policy;
(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 Seller 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
28
(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
Policy or the business or operations of the Seller including, without
limitation, by reason of the Seller being deemed to do business in the
State of California;
(vi) Financial Security's cost of providing to the Seller
(or to any Person at the request of the Seller) 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 WFSRC 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 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 anything
to the contrary contained in this Agreement, the obligations of WFSRC under
Section 3.04(a)
29
are solely the corporate obligations of WFSRC, and shall be payable by WFSRC,
solely as provided in Section 3.04(a). WFSRC shall only be required to pay (a)
any fees, expenses, indemnities or other liabilities that it may incur under
Section 3.04(a) (i) from funds available pursuant to, and in accordance with,
the payment priorities set forth in Section 5.05 of the Sale and Servicing
Agreement and (ii) to the extent WFSRC has additional funds available (other
than funds described in the preceding clause (i)) that would be in excess of
amounts that would be necessary to pay the debt and other obligations of WFSRC
incurred in accordance with WFSRC's certificate of incorporation and all
financing documents to which WFSRC is a party and (b) any expenses, indemnities
or other liabilities that it may incur under Section 3.04(a) (i) from funds
available pursuant to, and in accordance with, the payment priorities set forth
in Section 5.05 of the Sale and Servicing Agreement and (ii) only to the extent
it receives additional funds designated for such purposes or to the extent it
has additional funds available (other than funds described in the preceding
clause (i)) that would be in excess of amounts that would be necessary to pay
the debt and other obligations of WFSRC incurred in accordance with WFSRC's
certificate of incorporation and all financing documents to which WFSRC is a
party. In addition, no amount owing by WFSRC hereunder in excess of the
liabilities that it is required to pay in accordance with the preceding sentence
shall constitute a "claim" (as defined in Section 101(5) of the Bankruptcy Code)
against it. No recourse shall be had for the payment of any amount owing
hereunder or for the payment of any fee hereunder or any other obligation of, or
claim against, WFSRC arising out of or based upon Section 3.04(a), against any
stockholder, employee, officer, agent, director or authorized person of WFSRC or
Affiliate thereof; provided, however, that the foregoing shall not relieve any
such person or entity of any liability they might otherwise have as a result of
fraudulent actions or omissions taken by them.
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, WFSRC
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
30
(A) information set forth in the Prospectus under the caption "Financial
Security Assurance Inc." in the Prospectus and "Capitalization of
Financial Security Assurance Inc." in the prospectus supplement 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 WFSRC 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 WFSRC or the
Trust;
(iv) the violation by WFSRC or the Trust 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
transactions contemplated by this Agreement and the other Transaction
Agreements;
(v) the violation by WFSRC 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 WFSRC or the
Trust or any of its directors, officers, employees or agents;
(vii) the breach by WFSRC or the Trust of its obligations
under this Agreement or any of the other Transaction Agreements;
(viii) the breach by WFSRC or the Trust of any
representation or warranty on the part of WFSRC 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 WFSRC 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 WFSRC or the
Trust, or any affiliate of WFSRC, of a Financed Vehicle.
31
(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 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 Assurance Inc." 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
32
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
(x) the violation by WFSRC or the Trust 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 WFSRC 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
33
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.
(e) Notwithstanding anything to the contrary contained in this
Agreement, the obligations of WFSRC under this Section 3.06 are solely the
corporate obligations of WFSRC, and shall be payable by WFSRC, solely as
provided in this Section 3.06. WFSRC shall only be required to pay (a) any fees,
expenses, indemnities or other liabilities that it may incur under this Section
3.06 (i) from funds available pursuant to, and in accordance with, the payment
priorities set forth in Section 5.05 of the Sale and Servicing Agreement and
(ii) to the extent WFSRC has additional funds available (other than funds
described in the preceding clause (i)) that would be in excess of amounts that
would be necessary to pay the debt and other obligations of WFSRC incurred in
accordance with WFSRC's certificate of incorporation and all financing documents
to which WFSRC is a party and (b) any expenses, indemnities or other liabilities
that it may incur under this Section 3.06 (i) from funds available pursuant to,
and in accordance with, the payment priorities set forth in Section 5.05 of the
Sale and Servicing Agreement and (ii) only to the extent it receives additional
funds designated for such purposes or to the extent it has additional funds
available (other than funds described in the preceding clause (i)) that would be
in excess of amounts that would be necessary to pay the debt and other
obligations of WFSRC incurred in accordance with WFSRC's certificate of
incorporation and all financing documents to which WFSRC is a party. The
agreement set forth in the preceding sentence shall constitute a subordination
agreement for purposes of Section 510(a) of the Bankruptcy Code. In addition, no
amount owing by WFSRC hereunder in excess of the liabilities that it is required
to pay in accordance with the preceding sentence shall constitute a "claim" (as
defined in Section 101(5) of the Bankruptcy Code) against it. No recourse shall
be had for the payment of any amount owing hereunder or for the payment of any
fee hereunder or any other obligation of, or claim against, WFSRC arising out of
or based upon this Section 3.06, against any stockholder, employee, officer,
agent, director or authorized person of WFSRC or Affiliate thereof; provided,
however, that the foregoing shall not relieve any such person or entity of any
liability they might otherwise have as a result of fraudulent actions or
omissions taken by them.
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Section 3.07. Liability Absolute. The obligations of WFSRC, WFS
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:
(a) any lack of validity or enforceability of the Policy 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 Policy 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 Policy against
presentation of a certificate or other document which does not comply with the
terms of the Policy, 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 Policy;
(g) the failure of WFSRC, or, indirectly, WFS, to receive the
proceeds of the sale of the Notes; 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 Policy 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 Policy; 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
35
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 Notes and
Certificates.
Section 3.09. Payment of Costs, Fees and Expenses.
(a) WFSRC 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 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, WFSRC 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
WFSRC's obligations 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 Seller 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 WFSRC 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.
36
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 Seller and WFS. WFSRC, WFS
and any and all others who are now or may become liable for all or part of the
obligations of WFSRC 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.
Section 3.13. [Reserved].
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 WFSRC (such indebtedness and
liabilities being herein called the "Obligations") in the order of priority
indicated:
37
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 WFSRC 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
WFSRC, and
Second, (i) the repayment of all amounts advanced or paid
by Financial Security under the Policy 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 connection
therewith) and under or in connection with this Agreement and the
Policy.
Section 4.02. Granting Clause. In order to secure and to provide
for the repayment of the Obligations, WFSRC 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 all of its right, title and
interest in the Collateral owned by it, 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 WFSRC from the
performance of any term, covenant, condition or agreement on WFSRC'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 WFSRC'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 WFSRC relative thereto or for any breach of any representation or
warranty on the part of WFSRC contained therein, or made in connection
therewith, and WFSRC 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 WFSRC (other than an act or omission on the part of such party 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
38
shall become effective prior to the effectiveness of the Seller Assignments, and
the assignment by WFSRC 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 assignments 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 3.10 or 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 by Financial Security and the
Collateral Agent of a Certificate of the Seller that the conditions set forth in
Section 3.10, with respect to the Optional Repurchase under such Section 3.10
and Section 9.01 with respect to the Optional Purchase under that Section 9.01,
in each case, of the Sale and Servicing Agreement have been satisfied.
ARTICLE V
INTERCREDITOR PROVISIONS
Section 5.01. Financial Security's Direction Upon Servicer
Default.
(a) So long as no Insurer Insolvency has occurred and no Insurer
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 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 WFSRC
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 WFSRC 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
39
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
Insurer Insolvency has occurred and no Insurer 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 WFSRC 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 WFSRC, 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 WFSRC 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
(v) Financial Security shall have the power to direct the
actions to be taken by WFSRC 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, 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
Noteholders. Financial Security further agrees that, until such time that all
required payments shall have been made with respect to the Notes, 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.
40
ARTICLE VI
THE COLLATERAL AGENT; REMEDIES
Section 6.01. Appointment and Powers of Collateral Agent.
Financial Security hereby appoints Deutsche Bank Trust Company Americas as the
Collateral Agent, and Deutsche Bank Trust Company Americas 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
WFSRC 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 WFSRC 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 WFSRC; provided, however, that the validity of any such
appointment shall not be impaired or affected by any failure to give any such
notice to WFSRC 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
41
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 WFSRC 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 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
42
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, WFSRC, 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 WFSRC, 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 part thereof, or the possession thereof by any purchaser
at any sale under this Article; and each of WFSRC 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
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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 WFSRC, 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 WFSRC, 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
Insurer Insolvency has occurred and no Insurer Default has occurred and is
continuing, Financial Security shall, upon the occurrence and during the
continuation of any of the Servicer Defaults 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, and certain amounts
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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 Collection Account and the Spread 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 and the Spread 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
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Agreement to be cancelled, void or voidable or otherwise terminated or otherwise
affect the Collateral Agent's obligations hereunder.
Section 6.11. Protection of Financial Security's Security
Interest.
(a) The Seller 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 Seller, all in
such manner and in such places as may be required by law (whether in the event
of a change of the Seller's name, identity or corporate structure, or otherwise)
fully to preserve, maintain, and protect the interest of Financial Security in
the Collateral. The Seller 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. Furthermore, to
effectuate the provisions and purposes of this Agreement, including for the
purpose of perfecting the security interest granted hereunder, the Trust, WFS
and the Seller, respectively, hereby authorize the filing by Financial Security,
on or prior to the Closing Date and any subsequent Closing Dates, an appropriate
Uniform Commercial Code financing statement in California in form sufficient to
assure that the Collateral Agent, as agent for Financial Security, has a first
priority perfected security interest in all Collateral which can be perfected by
the filing of a financing statement.
(b) The Seller 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 Seller, in accordance with paragraph (a)
above, seriously misleading within the meaning of Section 9-507(c) of the UCC,
unless it shall have given the Collateral Agent and Financial Security at least
60 days' prior written notice thereof.
(c) The Seller shall give Financial Security at least 60 days'
prior written notice of any relocation of the Seller's principal executive
offices, as applicable 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. WFS 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) The Seller agrees that, upon request by Financial Security,
such Seller 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. None of WFSRC
or 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 hereunder, except as contemplated herein.
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(e) In the event that either the Master Servicer or WFSRC
relocates its principal executive office, such party 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) WFSRC shall be obligated to 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.
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 the Policy;
(b) any representation or warranty made by the Trust, WFSRC, or
WFS 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 either Seller 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, WFSRC or WFS shall fail to pay when due any
amount payable by it under any of the Transaction Agreements (other than
payments of principal and interest on the Notes); (ii) the Trust, WFSRC or WFS
shall have asserted that any of the Transaction Agreements to which it is a
party is not valid and binding on
47
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, WFSRC or WFS shall fail to perform or observe any
other covenant or agreement by it 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 and WFSRC; 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;
(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 (v) of Section 5.05(a) of the Sale and Servicing
Agreement; and
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(i) the Trust, WFSRC or WFS shall fail to deliver to Financial
Security within 30 days of the Closing Date an "agreed upon procedures" letter
in a form acceptable to Financial Security from a firm of nationally-recognized
independent certified public accountants with respect to the Contracts that were
not included in the "agreed upon procedures" letter dated as of the Statistical
Calculation Date.
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, WFSRC or WFS 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 WFSRC. 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 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.
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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 WFSRC, WFS, 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. WFSRC 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 WFSRC, to
execute instruments of satisfaction or 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 Policy 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.
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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 WFSRC,
WFS, 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 Policy 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 Policy and
provided further that Financial Security shall reimburse WFSRC or WFS, 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 WFSRC or WFS, 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 WFSRC or WFS, 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 WFSRC or
WFS pursuant to Section 3.03 or 3.04 hereof.
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.
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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 as Party Only for Certain Provisions.
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 2.06, 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.
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 WFSRC, 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.
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
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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 Policy, 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 Recourse. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of WFSRC under Sections
2.08(i), 3.04, 3.06 and 3.09 are solely the corporate obligations of WFSRC, and
shall be payable by WFSRC solely as provided in Sections 2.08(i), 3.04, 3.06 and
3.09. WFSRC shall only be required to pay (i) any fees, expenses, indemnities or
other liabilities that it may incur under Sections 2.08(i), 3.04, 3.06 or 3.09,
as applicable, (y) from funds available pursuant to, and in accordance with, the
payment priorities set forth in Section 5.06 of the Sale and Servicing Agreement
and (z) to the extent WFSRC has additional funds available (other than funds
described in the preceding clause (y)) that would be in excess of amounts that
would be necessary to pay the debt and other obligations of such entity incurred
in accordance with its certificate of incorporation and all financing documents
to which it is a party and (ii) any expenses, indemnities or other liabilities
that it may incur under Sections 2.08(i), 3.04, 3.06 or 3.09, as applicable, (y)
from funds available pursuant to, and in accordance with, the payment priorities
set forth in Section 5.06 of the Sale and Servicing Agreement and (z) only to
the extent it receives additional funds designated for such purposes or to the
extent it has additional funds available (other than funds described in the
preceding clause (y)) that would be in excess of amounts that would be necessary
to pay its debt and other obligations incurred in accordance with its
certificate of incorporation and all financing documents to which it is a party.
In addition, no amount owing by WFSRC hereunder in excess of the liabilities
that it is required to pay in accordance with the preceding sentence shall
constitute a "claim" (as defined in Section 101(5) of the Bankruptcy Code)
against it. No recourse shall be had for the payment of any amount owing
hereunder or for the payment of any fee hereunder or any other obligation of, or
claim against, WFSRC arising out of or based upon Sections 2.08(i), 3.04, 3.06
or 3.09, as applicable, against any stockholder, employee, officer, agent,
director or authorized person of the WFSRC or Affiliate thereof; provided,
however, that the foregoing shall not relieve any such person or entity of any
liability they might otherwise have as a result of fraudulent actions or
omissions taken by them.
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Section 8.18. Limited Liability of Chase Manhattan Bank USA,
National Association. It is expressly understood and agreed by the parties
hereto that (a) this Agreement is executed and delivered by Chase Manhattan Bank
USA, National Association 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
USA, National Association, 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 USA, National Association,
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
USA, National Association 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 8.19. Entire Agreement. This Agreement and the Policy 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 2002-2 OWNER TRUST
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
not in its individual capacity, but
solely in its capacity as Owner
Trustee under the Trust Agreement
By:
------------------------------------------
Title:
WFS RECEIVABLES CORPORATION
By:
------------------------------------------
Title:
WFS FINANCIAL INC
By:
------------------------------------------
Title:
FINANCIAL SECURITY ASSURANCE INC.
By:
------------------------------------------
Title: Authorized Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent, Proceeds Agent and
Indenture Trustee
By:
------------------------------------------
Title:
55