EXHIBIT 10.6
EXECUTION COPY
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ADMINISTRATION AGREEMENT
among
WFS FINANCIAL 2003-3 OWNER TRUST,
as Issuer,
WESTCORP,
as Administrator,
WFS RECEIVABLES CORPORATION 2,
as Seller,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee
Dated as of August 1, 2003
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TABLE OF CONTENTS
Page
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Section 1. Duties of the Administrator...................................................................... 1
Section 2. Records.......................................................................................... 8
Section 3. Compensation..................................................................................... 8
Section 4. Additional Information to be Furnished to the Issuer............................................. 8
Section 5. Independence of the Administrator................................................................ 8
Section 6. No Joint Venture................................................................................. 8
Section 7. Other Activities of Administrator................................................................ 8
Section 8. Term of Agreement; Resignation and Removal of Administrator...................................... 8
Section 9. Action upon Termination, Resignation or Removal.................................................. 9
Section 10. Notices......................................................................................... 10
Section 11. Amendments...................................................................................... 10
Section 12. Successors and Assigns.......................................................................... 11
Section 13. Governing Law................................................................................... 11
Section 14. Headings........................................................................................ 11
Section 15. Counterparts.................................................................................... 11
Section 16. Severability.................................................................................... 11
Section 17. Not Applicable to Westcorp in Other Capacities.................................................. 12
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee.................................. 12
Section 19. Third-Party Beneficiary......................................................................... 12
Section 20. Capitalized Terms............................................................................... 12
Exhibit A Form of Power of Attorney......................................................................... A-1
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This ADMINISTRATION AGREEMENT, dated as of August 1, 2003 (the
"Agreement"), is among WFS FINANCIAL 2003-3 OWNER TRUST (the "Issuer"), WESTCORP
("Westcorp" or, in its capacity as administrator, the "Administrator"), WFS
RECEIVABLES CORPORATION 2, as seller (the "Seller"), and DEUTSCHE BANK TRUST
COMPANY AMERICAS, not in its individual capacity but solely as indenture trustee
(the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer is issuing 1.12875% Class A-1 Notes, 1.58% Class
A-2 Notes, 2.29% Class A-3A Notes, Floating Rate Class A-3B Notes and 3.25%
Class A-4 Notes (collectively, the "Notes"), pursuant to the indenture, dated as
of the date hereof (the "Indenture"), between the Issuer and the Indenture
Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests of
the Issuer, including (i) the Indenture, (ii) a sale and servicing agreement,
dated as of the date hereof (the "Sale and Servicing Agreement"), among the
Issuer, the Seller, WFS Financial Inc ("WFS"), as master servicer (in such
capacity, the "Master Servicer"), and Westcorp, as indemnifier, and (iii) a
Letter of Representations, dated August 28, 2003 (the "Depository Agreement"
and, together with the Basic Documents, the "Related Agreements"), among the
Issuer, the Indenture Trustee and The Depository Trust Company ("DTC") relating
to the Notes;
WHEREAS, pursuant to the Related Agreements, the Issuer and Chase
Manhattan Bank USA, National Association, as owner trustee (the "Owner
Trustee"), are required to perform certain duties in connection with (i) the
Notes and the collateral therefor pledged pursuant to the Indenture and (ii) the
beneficial ownership interests in the Issuer;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Duties of the Administrator.
(a) Duties with Respect to the Depository Agreement and the
Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Depository Agreement. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuer
or the Owner Trustee under the Indenture and the Depository Agreement.
The Administrator shall monitor the performance of the Issuer and shall
advise the Owner Trustee when action is necessary to comply with the
respective duties of the Issuer and the Owner Trustee under the
Indenture and the Depository Agreement. The Administrator shall prepare
for execution by the Issuer, or shall cause the preparation by other
appropriate persons, of all such documents, reports, filings,
instruments, certificates and opinions that it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Depository Agreement. In furtherance of the
foregoing, the Administrator shall take (or, in the case of the
immediately preceding sentence, cause to be taken) all appropriate
action that the Issuer or the Owner Trustee is required to take
pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under
the Indenture (references are to Sections of the Indenture):
(A) the preparation of or obtaining of the
documents and instruments required for execution and
authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.02);
(B) the duty to cause the Note Register to be
kept and to give the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.04);
(C) the notification of Noteholders and the
Rating Agencies of the final principal payment on the Notes
(Section 2.07(b));
(D) the fixing or causing to be fixed of any
special record date and the notification of the Indenture
Trustee and Noteholders with respect to special payment dates,
if any (Section 2.07(c));
(E) the preparation of Definitive Notes in
accordance with the instructions of the Clearing Agency
(Section 2.11);
(F) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.12);
(G) the maintenance of an office in the Borough
of Manhattan, The City of New York, for registration of
transfer or exchange of Notes (Section 3.02);
(H) the duty to cause newly appointed Paying
Agents, if any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds held in
trust (Section 3.03);
(I) the direction to the Indenture Trustee to
deposit monies with Paying Agents, if any, other than the
Indenture Trustee (Section 3.03);
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(J) the obtaining and preservation of the
Issuer's qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect
the validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(K) the preparation of all supplements and
amendments to the Indenture and all financing statements,
continuation statements, instruments of further assurance and
other instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(L) the delivery of the Opinion of Counsel on
the Closing Date and the annual delivery of Opinions of
Counsel as to the Trust Estate, and the annual delivery of the
Officer's Certificate and certain other statements as to
compliance with the Indenture (Sections 3.06 and 3.09);
(M) the identification to the Indenture Trustee
and the Insurer in an Officer's Certificate of a Person with
whom the Issuer has contracted to perform its duties under the
Indenture (Section 3.07(b));
(N) the notification of the Indenture Trustee,
the Insurer and each Rating Agency of a Servicer Default under
the Sale and Servicing Agreement and, if such Servicer Default
arises from the failure of the Master Servicer to perform any
of its duties or obligations under the Sale and Servicing
Agreement with respect to the Contracts, the taking of all
reasonable steps available to remedy such failure (Section
3.07(d));
(O) the duty to cause the Master Servicer to
comply with the Sale and Servicing Agreement, including
Section 5.07 and Articles Four and Seven thereof (Section
3.14);
(P) the preparation and obtaining of documents
and instruments required for the release of the Issuer from
its obligations under the Indenture (Section 3.10(b));
(Q) the delivery of written notice to the
Indenture Trustee, the Insurer and each Rating Agency of each
Event of Default under the Indenture and each default by the
Master Servicer or the Seller under the Sale and Servicing
Agreement (Section 3.18);
(R) the monitoring of the Issuer's obligations
as to the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(S) the compliance with any written directive of
the Controlling Party with respect to the sale of the Trust
Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing (Section 5.04);
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(T) the notification of the Rating Agencies of
any waiver of a Default or an Event of Default (Section 5.13);
(U) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.08);
(V) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of the Indenture
Trustee or any co-trustee or separate trustee (Sections 6.08
and 6.10);
(W) maintaining the effectiveness of the sales
finance company licenses required under the Maryland Code and
the licenses required under the Pennsylvania Motor Vehicle
Sales Finance Act (Section 6.14);
(X) the furnishing of the Indenture Trustee with
the names and addresses of Noteholders during any period when
the Indenture Trustee is not the Note Registrar (Section
7.01);
(Y) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state
agencies and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may
be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(Z) the opening of one or more accounts in the
Issuer's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and reinvestment
of funds in the Trust Accounts (Sections 8.02 and 8.03);
(AA) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate (Sections 8.04 and 8.05);
(BB) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(CC) the execution, authentication and delivery
of new Notes conforming to any supplemental indenture (Section
9.06);
(DD) the duty to notify Noteholders and the
Rating Agencies of redemption of the Notes or to cause the
Indenture Trustee to provide such notification (Section
10.02);
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(EE) the preparation and delivery of all
Officer's Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture
(Section 11.01(a));
(FF) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.01(b));
(GG) the notification of the Rating Agencies,
upon the failure of the Issuer, the Owner Trustee or the
Indenture Trustee to give such notification, of the
information required pursuant to Section 11.04 of the
Indenture (Section 11.04);
(HH) the preparation and delivery to Noteholders
and the Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.06); and
(II) the recording of the Indenture, if
applicable (Section 11.15).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the
Indenture Trustee under the Indenture (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in
the Indenture, reimburse the Indenture Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its
agents for, and hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith
on their part, arising out of or in connection with the
acceptance or administration of the transactions contemplated
by the Indenture, including the reasonable costs and expenses
of defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents
for, and hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust
Agreement, including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Trust Agreement.
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(b) Additional Duties.
(i) In addition to the duties set forth in
Section 1(a)(i), the Administrator shall perform such calculations and
shall prepare or cause to be prepared by other appropriate persons, and
shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions
that the Issuer or the Owner Trustee are required to prepare, file or
deliver pursuant to the Related Agreements or Section 5.05 of the Trust
Agreement, and at the request of the Owner Trustee shall take all
appropriate action that the Issuer or the Owner Trustee are required to
take pursuant to the Related Agreements. In furtherance thereof, the
Owner Trustee shall, on behalf of itself and of the Issuer, execute and
deliver to the Administrator and to each successor Administrator
appointed pursuant to the terms hereof, one or more powers of attorney
substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer
for the purpose of executing on behalf of the Owner Trustee and the
Issuer all such documents, reports, filings, instruments, certificates
and opinions. Subject to Section 5, and in accordance with the
directions of the Owner Trustee, the Administrator shall administer,
perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Agreements) as
are not covered by any of the foregoing provisions and as are expressly
requested by the Owner Trustee and are reasonably within the capability
of the Administrator.
(ii) Notwithstanding anything in this Agreement
or the Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event that
any withholding tax is imposed on the Trust's payments (or allocations
of income) to an Owner as contemplated in Section 5.02(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement
or the Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05 of the Trust Agreement with respect to, among
other things, accounting and reports to Owners; provided, however, that
the Owner Trustee shall retain responsibility for the distribution of
any Schedule K-1s necessary to enable each Owner to prepare its federal
and state income tax returns.
(iv) The Administrator shall satisfy its
obligations with respect to clauses (ii) and (iii) above by retaining,
at the expense of the Trust payable by the Administrator, a firm of
independent public accountants (the "Accountants") acceptable to the
Owner Trustee, which shall perform the obligations of the Administrator
thereunder. In connection with paragraph (ii) above, the Accountants
will provide prior to December 31, 2003, a letter in form and substance
satisfactory to the Owner Trustee if any tax withholding is then
required and the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Accountants shall be
required
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to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax
withholding shall no longer be required.
(v) The Administrator shall perform the duties
of the Administrator specified in Section 10.02 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any
of its other obligations under this Agreement, the Administrator may
enter into transactions or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action, the Administrator shall have notified
the Owner Trustee of the proposed action and the Owner Trustee shall
not have withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Contracts);
(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note
Registrars, successor Paying Agents and successor Indenture
Trustees pursuant to the Indenture or the appointment of
successor Administrators or a successor Master Servicer, or
the consent to the assignment by any of the Note Registrar,
the Paying Agent or the Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in
this Agreement, the Administrator shall not be obligated to, and shall
not, (A) make any payments to the Noteholders under the Related
Agreements, (B) sell the Trust Estate pursuant to clause (iv) of
Section 5.04 of the Indenture, (C) take any other action that the
Issuer directs the Administrator not to take on its behalf or (D) take
any other action which may be construed as having the effect of varying
the investment of the Holders.
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Section 2. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Company at any time during normal business hours.
Section 3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to an annual
payment of compensation which shall be solely an obligation of the Company.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement shall
(i) constitute the Administrator and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
This Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(a) Subject to Section 8(e), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days' prior written
notice.
(b) Subject to Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(c) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator if any of the following events shall occur:
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(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such
default, shall not cure such default within ten days (or, if such
default cannot be cured in such time, shall not give within ten days
such assurance of cure as shall be reasonably satisfactory to the
Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall not
have been vacated within 60 days, in respect of the Administrator in
any involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) above shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the occurrence of such
event.
(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
(f) Subject to Sections 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a Successor Master Servicer pursuant
to the Sale and Servicing Agreement, the Administrator shall immediately resign
and such Successor Master Servicer shall automatically become the Administrator
under this Agreement; provided, however, that this subsection (f) shall not
apply at such times as the Indenture Trustee shall be the Successor Master
Servicer.
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to the first
sentence of Section 8 or the resignation or removal of the Administrator
pursuant to Section 8(a), (b) or (c), respectively, the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to the first sentence of Section 8
deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(a), (b) or
(c),
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respectively, the Administrator shall cooperate with the Issuer and take all
reasonable steps requested to assist the Issuer in making an orderly transfer of
the duties of the Administrator.
Section 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
WFS Financial 2003-3 Owner Trust
Chase Manhattan Bank USA, National Association
c/o XX Xxxxxx Xxxxx
500 Xxxxxxx Xxxxxxxxxx Rd., OPS4 /0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
(b) if to the Administrator, to:
Westcorp
00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Guy Du Bose, Esq.
(c) if to the Indenture Trustee, to:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx, 00xx Xxxxx
MS XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust & Agency Services - Structured
Finance Services
(d) if to the Insurer, to:
Financial Security Assurance Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Oversight Department
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
Section 11. Amendments. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the parties hereto, with
the written consent of the Insurer and the Owner Trustee but without the consent
of the Noteholders and the Certificateholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
Certificateholders; provided that such amendment will not, in the Opinion of
Counsel satisfactory to the Indenture Trustee, materially and adversely affect
the interest of any
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Noteholder or Certificateholder. This Agreement may also be amended by the
parties hereto with the written consent of the Owner Trustee and the holders of
Notes evidencing at least a majority of the Outstanding Amount of the Notes and
the holders of Certificates evidencing at least a majority of the Certificate
Percentage for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of Noteholders or the Certificateholders; provided, however,
that no such amendment may (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on the Contracts
or distributions that are required to be made for the benefit of the Noteholders
or Certificateholders or (ii) reduce the aforesaid percentage of the holders of
Notes and Certificates which are required to consent to any such amendment,
without the consent of the Insurer and the holders of all outstanding Notes and
Certificates. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Seller, which permission shall not
be unreasonably withheld.
Section 12. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to the satisfaction of
the Rating Agency Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer, the Insurer or the Owner Trustee to a corporation or
other organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization executes
and delivers to the Issuer, the Insurer, the Owner Trustee and the Indenture
Trustee an agreement, in form and substance reasonably satisfactory to the Owner
Trustee, the Indenture Trustee and the Insurer, in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
Section 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, EXCEPT THAT THE DUTIES OF THE INDENTURE TRUSTEE SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
Section 14. Headings. The section and subsection headings hereof have
been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
Section 16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition
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or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 17. Not Applicable to Westcorp in Other Capacities. Nothing in
this Agreement shall affect any obligation Westcorp may have in any other
capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by Chase Manhattan Bank USA, National
Association not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles Six, Seven and Eight of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Deutsche Bank Trust Company Americas
not in its individual capacity but solely as Indenture Trustee and in no event
shall Deutsche Bank Trust Company Americas have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
(c) In no event shall the Indenture Trustee be liable for any
indirect, special, punitive or consequential loss or damage of any kind
whatsoever, including lost profits, even if the Indenture Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
(d) In no event shall the Indenture Trustee be liable for any
failure or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Agreement.
Section 19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
Section 20. Capitalized Terms. Except as otherwise specified herein or
as the context may otherwise require, capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Indenture or
the Sale and Servicing Agreement, as the case may be.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
WFS FINANCIAL 2003-3 OWNER TRUST
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: ____________________________________
Name:
Title:
WESTCORP,
as Administrator
By: ____________________________________
Xxx Xxxxxxxx
Executive Vice President, Chief
Financial Officer and Chief Operating
Officer
WFS RECEIVABLES CORPORATION 2,
as Seller
By: ____________________________________
Xxxx X. Xxxxxxxx
President
DEUTSCHE BANK TRUST COMPANY
AMERICAS, not in its individual
capacity but solely as Indenture
Trustee
By: ____________________________________
Name:
Title:
EXHIBIT A
FORM OF POWER OF ATTORNEY
A-1
