EXHIBIT 10.16
REVOLVING LINE OF CREDIT AGREEMENT
THIS REVOLVING LINE OF CREDIT AGREEMENT (this "Agreement") is
effective as of the 30th day of September, 2003, by and between WFS RECEIVABLES
CORPORATION 2, a Nevada corporation (the "Borrower") and WESTCORP, a California
corporation ("Westcorp"), with reference to the following:
PREAMBLE
A. Borrower expects to acquire retail installment sales contracts
and installment loans secured in each instance by an automobile or light duty
truck ("Contracts"). Borrower intends to enter into one or more asset-backed
securities transactions utilizing those Contracts and requires a line of credit
to permit it to have sufficient funds to complete the purchase and
securitization of those Contracts.
B. Westcorp is prepared to provide to Borrower a revolving line
of credit on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby covenant and agree as follows:
TERMS
1. CERTAIN DEFINITIONS.
Unless (i) elsewhere defined herein, each capitalized term used in this
Agreement shall have the following meanings, and (ii) the context otherwise
requires, any of the following capitalized terms may be used in the singular or
the plural, depending on the reference:
"ADVANCES" shall mean the principal amount of all sums which Westcorp
lends to the Borrower pursuant to this Agreement.
"AVAILABILITY PERIOD" shall mean the period commencing on the date of
this Agreement and ending on January 1, 2010: provided however, that
the ending date may be extended at the election of the Borrower for a
further period or periods not to exceed sixty (60) months for each
extension so long as (i) the extension would not be illegal or contrary
to any governmental law, rule, regulation or order applicable to
Westcorp or the Borrower, (ii) the extension would not result in the
withdrawal or reduction by any Rating Agency of its rating of any rated
debt issued by Westcorp or the Borrower or any trust of which either is
the originator, or (iii) Westcorp determines, in its sole and absolute
discretion, that such extension would not be an unsafe or unsound act
or practice.
"BASE RATE" shall mean the average one-month London Interbank Offering
Rate ("LIBOR") as provided by Westcorp on each date as of which
interest is to be calculated.
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"BORROWING CERTIFICATE" shall mean a borrowing request executed by the
Borrower in substantially the form attached hereto as Exhibit A or such
other form as may be acceptable to Westcorp in its sole and absolute
discretion.
"BUSINESS DAY" shall mean a day when banks are not authorized or
required to close in the State of California.
"CODE" shall mean the Uniform Commercial Code in effect from time to
time in the relevant State or States.
"COLLATERAL" shall mean any and all assets and properties, if any,
pledged from time to time by the Borrower to Westcorp pursuant to any
Loan Documents to secure all or a portion of the Obligations.
"COMMITMENT AMOUNT" shall mean $50,000,000.
"COSTS" shall mean, collectively, all sums (other than Principal and
Interest) payable by the Borrower pursuant to this Agreement including,
without limitation, all sums payable pursuant to Sections 7 and 9.6
hereof.
"DRAWDOWN DATE" shall mean the date as of which an Advance is to be
made by Westcorp to Borrower pursuant to a written or oral request of
Borrower to Westcorp.
"ENCUMBRANCES" shall mean security interests, mortgages, pledges,
equities, encumbrances, conditional sales or other title retention
agreements, leases (excluding only operating leases for office
equipment and real property), rights, restrictions, reservations or
charges or liens of any nature, collectively.
"FINAL PREPAYMENT DATE" shall mean the last day of the Availability
Period, including any extension or extensions thereof.
"GAAP" shall mean generally accepted accounting principles consistently
applied.
"INTEREST" shall mean all interest amounts required to be paid by the
Borrower pursuant to this Agreement.
"INTEREST SPREAD" shall mean (i) one and one-eighths percent (1.125%)
with respect to any Obligations not secured by Collateral acceptable to
Westcorp in its sole discretion, and (ii) five-eighths of one percent
(0.625%) with respect to any Obligations secured by Collateral
acceptable to Westcorp in its sole discretion.
"LOAN" shall mean the aggregate amount of all outstanding Advances and
accrued but unpaid Interest.
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"LOAN DOCUMENTS" shall mean, collectively, this Agreement, security
agreements, UCC financing statements, and any other certificates,
documents or agreements of any type or nature heretofore or hereafter
executed and/or delivered by or on behalf of the Borrower to Westcorp
in furtherance of this Agreement or evidencing and/or securing any of
the Obligations.
"MODIFICATIONS" shall mean amendments, alterations, supplements,
replacements, modifications or terminations, collectively.
"MODIFY" shall mean amend, alter, supplement, replace, modify or
terminate, collectively.
"OBLIGATIONS" shall mean, collectively, the Principal, together with
accrued Interest and Costs.
"PERSON" shall mean an individual or a corporation, association,
limited liability company, joint venture, partnership, trust or other
private or governmental entity.
"PRINCIPAL" shall mean the aggregate of the Advances that are advanced
to or for the account of the Borrower and that remains unpaid.
"RATE OF INTEREST" shall mean with respect to each Obligation, the Base
Rate plus the then applicable Interest Spread with respect to the
Obligation in question.
"RATING AGENCY" shall mean a nationally recognized statistical rating
organization as that term is used in paragraphs (c)(2)(vi)(E), (F) and
(H) of Rule 15c3-1 as promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended.
"STATE" shall mean any state of the United States.
"UNITED STATES" and "U.S." shall mean the United States of America and
its territories and possessions.
2. THE LOAN.
2.1 COMMITMENT. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow during the Availability
Period, in the form of Advances, amounts constituting the Commitment Amount.
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2.2 NOTICE AND MAKING OF ADVANCES. Whenever the Borrower desires
to draw down an Advance, the Borrower shall advise Westcorp, orally or
in writing of the amount it seeks as an Advance. The Borrower hereby
irrevocably authorizes Westcorp, on behalf of the Borrower, to retain
from time to time any Advance or portion thereof to be used to pay any
outstanding Interest or Costs hereunder. The conditions herein with
respect to the making of Advances are for the benefit of Westcorp and
Westcorp may modify or waive any of such conditions in its sole and
absolute discretion.
2.3 CURRENCY OF ADVANCES. Each Advance shall be made in United
States dollars.
2.4 COMPUTATION AND PAYMENT OF INTEREST.
2.4.1 ACCRUAL OF INTEREST. Interest shall accrue and be
calculated on a monthly basis on (i) each Advance commencing on the
applicable Drawdown Date and (ii) all Costs not paid on or before the
applicable due date, commencing on the next day following the
applicable due date; in each case until repaid in full at the
applicable Rate of Interest, provided however that interest for any
period less than a calendar month shall be calculated on the number of
calendar days actually elapsed on the basis of a year of 365 days.
Interest shall be calculated on all Obligations based upon the average
amount of such Obligations outstanding during the month in question at
the Rate of Interest. Interest shall be paid as stipulated in this
Section 2.4, and each change in the Rate of Interest resulting from a
change in the Base Rate or the Interest Spread shall be effective from
the date of the respective change in either such rate.
2.4.2 PAYMENTS OF INTEREST. Subject to Section 2.4.3,
Interest shall be due and payable (i) on the tenth calendar day of each
month (or if such day is not a Business Day, on the next Business Day
thereafter) for the preceding month, and (ii) at maturity (by
acceleration or otherwise). In the event that the Borrower fails to pay
Interest when due, Westcorp may, in its sole discretion, advance such
amount for the Borrower's account, which amount shall be deemed an
Advance hereunder.
2.4.3 DEFERRAL OF PAYMENTS OF INTEREST. Borrower shall not
be required at any time to make any payment of Interest other than from
funds released to Borrower from any spread account, or similar account
however denominated, established in connection with an asset-backed
securities transaction utilizing Contracts transferred by Borrower,
directly or indirectly, into the securitization trust of that
asset-backed securities transaction or from the net proceeds of the
voluntary sale of assets of Borrower. Payments of Interest which accrue
and are not paid by reason of this Section 2.4.3 shall not bear
interest.
2.5 REPAYMENT OF THE LOAN.
2.5.1 FINAL REPAYMENT DATE. Subject to the payment
provisions set forth in Section 2.5.2 hereof, all outstanding Advances
shall be due and payable without notice, and the Borrower shall pay all
such Advances to Westcorp on or before the Final Repayment Date.
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2.5.2 MANDATORY PREPAYMENTS.
2.5.2.1 LOAN EXCEEDS THE COMMITMENT. In the event
the aggregate outstanding amount of the Loan at any time
exceeds the Commitment, the Loan shall be immediately due and
payable without notice to the extent of such excess (together
with accrued Interest thereon), and the Borrower shall
immediately pay such excess amount to Westcorp.
2.5.2.2 AUTOMATIC PREPAYMENT OF ALL OBLIGATIONS. All
Obligations shall be due and payable without notice or demand,
and the Borrower shall pay all such Obligations to Westcorp
upon the earliest to occur of any Event of Default specified
in Sections 6.5 or 6.6 hereof.
2.5.2.3 UPON DEMAND. At the election of Westcorp,
upon demand, all outstanding Obligations shall be due and
payable upon the occurrence of an Event of Default (other than
any Event of Default described in Sections 6.5 or 6.6, for
which no notice is necessary), and the Borrower shall pay all
such Obligations to Westcorp.
2.5.2.4 DEFERRAL OF PAYMENTS OF PRINCIPAL. Any other
provision of this Agreement notwithstanding, Borrower shall
not be required at any time to make any payment of Principal
other than from funds released to Borrower from any spread
account, or similar account however denominated, established
in connection with an asset-backed securities transaction
utilizing Contracts transferred by Borrower, directly or
indirectly, into the securitization trust of that asset-backed
securities transaction or from the net proceeds of the
voluntary sale of assets of Borrower. Payments of Principal
which accrue and are not paid by reason of this Section
2.5.2.4 shall continue to bear interest at the Interest Rate,
until paid.
2.5.3 OPTIONAL PREPAYMENTS. The Borrower may prepay any
outstanding Principal, either in whole or in part. All such prepayments
shall be accompanied by the payment of any accrued Interest on the
amount of the outstanding Principal prepaid.
2.6 TIME AND PLACE OF PAYMENTS. The Borrower shall make each
payment hereunder at the office of Westcorp set forth in, or designated by
Westcorp pursuant to, Section 8 hereof, on the day when due, in freely
transferable Dollars representing "same day" funds. Whenever any payment to be
made hereunder or under any instrument delivered hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day; and such extension of time shall in each such case be
excluded in the computation and payment of Interest.
2.7 APPLICATION OF PAYMENTS. Subject to Section 7.4 hereof, all
payments made hereunder in respect of any of the Obligations (whether optional
or mandatory) shall be credited first to Costs to the extent that Costs have not
previously been paid, then to Interest to the extent that Interest is accrued
and unpaid, and then to outstanding Principal.
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2.8 NO OFFSET BY THE BORROWER; NET PAYMENTS. All payments by the
Borrower under this Agreement shall be made without setoff or counterclaim and
in such amounts as may be necessary in order that all such payments (after
deduction or withholding for or on account of any present or future taxes of any
kind, imposts, levies, assessments, duties, fees, deductions or other charges,
restrictions, conditions of whatever nature now or hereafter imposed, levied,
collected or asserted to be due or payable) shall not be less than the amounts
otherwise specified to be paid under this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.1 The Borrower hereby represents and warrants to Westcorp, as of
the date hereof and as of each Drawdown Date (except to the extent that any such
representation or warranty expressly relates to an earlier date), that:
3.1.1 GOOD STANDING AND CORPORATE POWER. The Borrower is a
corporation duly organized, validly existing and in good standing under
the laws of the state of California, and is qualified to transact
business as a foreign corporation in good standing in each other
jurisdiction where the failure to be so qualified would have a material
adverse effect on it, its assets or properties, or the conduct of its
business. The Borrower has the right, power and authority to own its
properties and assets and to transact the business in which it is
engaged and proposes to engage.
3.1.2 BINDING AGREEMENT. This Agreement and the other Loan
Documents (to the extent such other Loan Documents are intended to be
of a contractual nature), when executed and delivered, will constitute
the valid and legally binding obligations of the Borrower and are
enforceable in accordance with their respective terms.
3.1.3 DUE AUTHORIZATION; NO CONFLICTS OR VIOLATIONS. The
execution, delivery and performance of this Agreement and the other
Loan Documents by the Borrower, the borrowings hereunder, and any grant
of security interests under any Loan Documents, (i) have been duly
authorized by all requisite corporate action of the Borrower and will
not violate any provision of any law, any order of any court or other
agency of the United States, any State or any foreign country, state or
province having jurisdiction, and (ii) will not violate any provision
of the articles of incorporation, or by-laws of the Borrower, or any
provision of any material agreement or instrument to which the Borrower
is a party or by which the Borrower or any of its properties or assets
may be bound, or be in conflict with, result in a breach of or
constitute a default under, any such agreement or other instrument, or
result in the creation or imposition of any Encumbrance (other than
Encumbrances approved by Westcorp in its sole discretion) of any nature
whatsoever upon the Collateral.
3.1.4 AUTHORIZATIONS. All authorizations, approvals,
registrations or filings from or with (i) any governmental or public
regulatory body or authority of the United States, any State or of any
foreign country, state, province or other jurisdiction, or (ii) any
other Person,
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required for the execution, delivery or performance by the Borrower of
the Loan Documents to which the Borrower is a party, have been obtained
or made and are in full force and effect.
3.2 NO MISREPRESENTATIONS. No representation or warranty of the
Borrower made in any Loan Documents, and none of such documents themselves
contain, or will contain, a misstatement by or on behalf of the Borrower of a
material fact or omits, or will omit to state a material fact required to be
stated herein or therein in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading in any respect.
3.3 MAKING OF AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of the Borrower made in the Loan Documents shall
survive the execution and delivery of this Agreement and the making of any
Advance.
4. CONDITIONS PRECEDENT TO ADVANCES.
The obligation of Westcorp to make any Advance is subject to the
Borrower's full compliance with each of the following conditions precedent to
the satisfaction of Westcorp in its sole and absolute discretion, unless
otherwise waived in writing by Westcorp in its sole and absolute discretion:
4.1. COMPLIANCE. At the time of the making of the requested Advance
(i) the Borrower shall have complied and then be in compliance with all terms,
covenants and conditions of this Agreement; (ii) there shall exist no Event of
Default, and no such event will result from such requested Advance, and (iii)
each of the material representations and warranties made by the Borrower in any
of the Loan Documents shall be true and correct on and as of such date with the
effect as though such representations and warranties had been made on and as of
such date.
4.2. BORROWING CERTIFICATE. The Borrower shall have timely
delivered to Westcorp in accordance with Section 2.2 hereof a Borrowing
Certificate duly completed by it.
4.3. NOTICE OF ADVANCE. The Borrower shall have timely delivered to
Westcorp, in accordance with Section 2.2 hereof, notice of its request to obtain
an Advance.
4.4. PAYMENT OF CERTAIN OBLIGATIONS. The Borrower shall, subject to
the deferral of the payment of Interest and Costs permitted by Section 2.4.3,
respectively, have paid to Westcorp all Interest and Costs payable to and/or
incurred by Westcorp through the Drawdown Date.
4.5. ADDITIONAL DOCUMENTS. Westcorp shall have received such
additional documents, agreements and certificates as Westcorp may request in its
sole and absolute discretion.
4.6. PROPOSED USE. Westcorp shall have determined in its sole and
absolute discretion that the requested Advance will not be used by the Borrower
for any purpose not permitted by Section 5.1 hereof.
5. ADDITIONAL COVENANTS.
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The Borrower hereby covenants to and agrees with Westcorp that, until
payment in full of all of the Obligations and until such time as Westcorp is no
longer obligated to lend any funds under this Agreement, the Borrower will
(unless otherwise waived in writing by Westcorp):
5.1 PERMITTED USE OF PROCEEDS. Use the proceeds of the Advances to
only finance the Borrower's general working capital needs (including, without
limitation, the payment of Interest and Costs owing from time to time hereunder,
the purchasing of Contracts, payment of underwriting discounts, issuance of
costs and any other use consistent with the uses described in Preamble A to this
Agreement or necessary or incidental thereto).
5.2 EXISTENCE. Do or cause to be done all things necessary to
comply with all laws and regulations applicable to the Borrower, and to
preserve, renew and keep in full force and effect (i) the corporate existence of
the Borrower in its place of incorporation and in all other jurisdictions where
the Borrower conducts business, and (ii) all rights, licenses, permits and
franchises of the Borrower.
5.3 PERFORMANCE COVENANTS.
5.3.1 Duly and timely comply with all the terms,
conditions, covenants and warranties set forth in the Loan Documents,
all at the times and places and in the manner set forth herein and
therein, and diligently protect the rights of Westcorp under such
agreements where the failure to protect such rights would have a
material adverse effect on Westcorp's interests therein;
5.3.2 At all times maintain or cause to be maintained in
favor of Westcorp the security interests provided for under or pursuant
to the Loan Documents as valid security interests in the Collateral
subject only to such Encumbrances as may be consented to by Westcorp in
its sole discretion; and
5.3.3 Diligently and timely defend the Collateral and
Westcorp's rights therein against any and all Encumbrances (other than
such Encumbrances).
5.4 NOTICE OF CERTAIN EVENTS. Promptly give notice in writing to
Westcorp of (i) the occurrence of any Event of Default; or (ii) any action or
event of which any Borrower has knowledge which might materially and adversely
affect the condition (whether financial or otherwise) of the Borrower and/or the
performance by the Borrower of any of its obligations under any Loan Document or
the security interests granted under any Loan Document.
5.5 FURTHER ASSURANCES. At the Borrower's sole cost and expense,
duly execute and deliver, or cause to be duly executed and delivered to Westcorp
such further agreements, documents, instruments and information and do or cause
to be done such further acts as may be necessary or proper to evidence and/or
perfect the security interests of Westcorp in the Collateral or to otherwise
carry out more effectively the provisions and purposes of the Loan Documents as
Westcorp may from time to time request.
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5.6 COMPLIANCE WITH LAWS. At all times comply with the
requirements of all applicable laws, rules, regulations and orders of all
governmental authorities of the United States, the States, foreign countries,
states, provinces thereof and their respective counties, municipalities and
other subdivisions and of any other jurisdictions (whether domestic or foreign)
applicable to the Borrower.
5.7 DISCHARGE OF LIABILITIES. That all costs, expenses,
obligations and liabilities of the Borrower shall be discharged as and when they
fall due except any such items being diligently contested in good faith for
which appropriate reserves and provisions as required by GAAP have been made, so
long as by reason of such non-payment and contest no material item or portion of
the assets of the Borrower is in jeopardy of being seized, levied upon or
forfeited.
6. EVENTS OF DEFAULT.
An "Event of Default" shall mean the occurrence of any of the following
events:
6.1 A default in the payment when due and in the manner prescribed
herein of any installment of Principal or Interest and such default shall not be
cured within seven (7) Business Days after Westcorp has given written notice to
the Borrower of such default.
6.2 The failure, refusal or neglect of the Borrower to observe or
perform for any reason any of the material covenants, conditions, agreements or
provisions contained in any Loan Document (other than the payment of any
Obligation of which the failure to pay constitutes an Event of Default described
in Section 6.1 hereof) or to execute and deliver any documents, agreements or
instruments requested by Westcorp hereunder or thereunder, and such failure,
refusal or neglect shall not be cured within forty-five (45) days after Westcorp
has given written notice to the Borrower of such failure, refusal or neglect.
6.3 Any material representation or warranty made by the Borrower
in any Loan Document shall prove to have been false or misleading in any
material respect.
6.4 Westcorp shall cease to have valid security interests (subject
only to Encumbrances consented to in writing by Westcorp) at any time for any
reason in the Collateral or any portion thereof (other than due to a release by
Westcorp of any such security interests).
6.5 The Borrower shall be dissolved or shall sustain the loss,
cancellation or forfeiture of its legal status or good standing by reason of any
judicial, extra-judicial or administrative proceedings or otherwise, or shall
(i) apply for or consent to the appointment of a receiver, trustee or liquidator
of the Borrower or of all or a substantial part of the Borrower's assets; (ii)
be unable to, or admit in writing its inability to, pay its debts as they
mature; (iii) make a general assignment for the benefit of creditors; (iv) be
adjudicated a bankrupt or insolvent; (v) file a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization or an arrangement for the
benefit of creditors or take advantage of any insolvency law in its capacity as
a debtor; (vi) interpose an answer admitting the material allegations of the
petition filed against the Borrower in any bankruptcy, reorganization or
insolvency proceedings; (vii) take any action which would have the effect of
dissolving the Borrower; or (viii) take any action for the purpose of effecting
any of the foregoing.
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6.6 Any (i) involuntary petition is filed against the Borrower
seeking to subject it to any bankruptcy, insolvency or similar laws and such
petition shall remain unstayed or not be withdrawn for a period of forty-five
(45) days; or (ii) order, judgment or decree shall be entered against the
Borrower by any court of competent jurisdiction approving a petition seeking its
reorganization or appointment of a receiver, trustee or liquidator of the
Borrower or of all or a substantial part of its assets and such order, judgment
or decree shall continue and stay in effect for a period of forty-five (45)
days.
7. REMEDIES; APPLICATION OF PROCEEDS.
7.1 Subject in each instance to Sections 2.4.3 and 2.5.2.4,
Westcorp may, upon the occurrence of an Event of Default, exercise any one or
more of the following rights and remedies:
7.1.1 If the Commitment or any portion thereof has not yet
been advanced, declare the obligations of Westcorp to honor the
Commitment immediately terminated, whereupon the obligation of Westcorp
to make Advances shall terminate immediately;
7.1.2 Declare all Obligations to be forthwith due and
payable, whereupon all such Obligations shall be accelerated and shall
become immediately due and payable without presentation, demand or
notice of any kind to the Borrower (all of which are hereby waived by
the Borrower), except that if an Event of Default specified in Sections
6.5 or 6.6 shall occur such acceleration shall be automatic and no
declaration or other act of Westcorp shall be necessary to effect such
acceleration;
7.1.3 Proceed to protect and enforce the rights of Westcorp
to payment of the Obligations and its rights to proceed against the
Collateral (including, without limitation, exercise in respect of the
Collateral all rights and remedies of a secured party under the Code)
and exercise its remedies whether by suit in equity or by action at
law, or both, whether for the specific performance of any covenant,
agreement or other provision of any of the Loan Documents or any other
legal or equitable right or remedy of Westcorp;
7.1.4 Westcorp may exercise all other rights and remedies
available at law or in equity (or both) pursuant to any applicable law,
statute, rule or regulation, including, without limitation, the right
to statutorily foreclose on the Collateral.
7.2 POWER OF ATTORNEY. The Borrower does hereby irrevocably make,
constitute, and appoint Westcorp and its officers and designees as its true and
lawful attorney-in-fact, with full power in the name of Westcorp and/or the
Borrower, to take the following actions upon the occurrence of an Event of
Default: to do any and all acts necessary or proper to carry out the intent of
the Loan Documents (including, without limitation, execute such further
mortgages, pledges and assignments of the Collateral as Westcorp may require for
the purpose of protecting, maintaining, or enforcing the security interests
granted to Westcorp by the Loan Documents); enforce all of the Borrower's rights
under all agreements with respect to the Collateral, and the Borrower hereby
ratifies and confirms all that Westcorp as such attorney-in-fact or its
substitutes shall properly do by
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virtue of this power of attorney. Such powers of attorney are coupled with an
interest and are therefore irrevocable.
7.3 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy conferred
upon Westcorp in any of the Loan Documents or otherwise available at law or in
equity (or both) shall be exclusive of any other right or remedy contained
herein or therein or otherwise made available. All such rights and remedies are
cumulative and are not exclusive of any right or remedy which Westcorp may
otherwise have.
7.4 APPLICATION OF PROCEEDS AFTER EVENT OF DEFAULT. After the
occurrence of an Event of Default, all Collateral in the form of cash, all
income on the Collateral and all proceeds from any sale or other disposition of
the Collateral pursuant hereto shall be applied against the Obligations in such
order as Westcorp shall in its sole discretion determine. Any amounts remaining
after such applications shall be remitted to the Borrower or as a court of
competent jurisdiction may otherwise direct.
7.5 LIMITATIONS OF REMEDIES. Any other provision of this Section 7
notwithstanding, Westcorp acknowledges and agrees that all Advances and all
remedies as to such Advances are (i) fully subordinated to and may only be paid
by Borrower after all obligations then due with respect to any rated debt of
Borrower or of any securities issued by Borrower or of any trust of which
Borrower is an originator or depositor, are paid in full, (ii) without recourse
by Westcorp against any assets of Borrower, now owned or hereafter acquired,
other than such assets specifically pledged by Borrower and (iii) that such
Advances and all remedies provided for in this Section 7 shall not constitute a
claim against Borrower to the extent the assets, if any, specifically pledged by
Borrower are insufficient to fully pay such Advances.
7.6 NON-PETITION. Westcorp shall not, nor cause Borrower to,
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Borrower under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Borrower.
8. NOTICES.
All notices, requests, demands and other communications required or
permitted to be given hereunder shall, except as otherwise permitted, be in
writing and shall be deemed to have been duly given if telecopied or if
delivered by messenger or courier delivery, or sent by first class mail, postage
prepaid, certified or registered, return receipt requested, as set forth below
or at such other address as may be furnished in writing:
If to the Borrower:
WFS Receivables Corporation 2
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000 X. Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxxxx
Fax No.: 000-000-0000
With copies to:
Guy Du Bose, Esq. and Xxxx Xxxxx
00 Xxxxxxx
Xxxxxx Xxxxxxxxxx 00000
Fax: No.: 000-000-0000
If to Westcorp:
Westcorp
00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Guy Du Bose, Esq.
Fax No.: 000-000-0000
Any notice given by messenger or courier delivery as provided in this Section 8
shall be deemed given when delivered if during normal business hours on a
Business Day (or if not, the next Business Day after delivery); any notice given
by telecopier as provided herein shall be deemed given when sent if during
normal business hours on a Business Day (or, if not, the next Business Day after
it is sent), provided that at the time such telecopy is sent, the sending party
receives written confirmation of receipt and forwards a copy of the notice by
mail, messenger or courier delivery as provided herein; any notice given by
first class mail, postage prepaid, certified or registered, return receipt
requested shall be deemed given two (2) Business Days after the date of mailing.
Any party may by notice to the other change the address at which notices and
demands may be given to it.
9. MISCELLANEOUS.
9.1 NO WAIVER. No failure or delay on the part of Westcorp in
notifying the Borrower of an Event of Default, or in exercising, or partial
exercise of, any right, power or privilege hereunder shall operate as a waiver
of any Event of Default, or privilege or right hereunder or otherwise or
preclude any other or further exercise of any other right power or privilege.
9.2 GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
subject to, construed and governed by, the laws of the State of California
without giving effect to such state's conflicts of law provisions. This
Agreement may not be assigned, pledged, hypothecated or otherwise encumbered by
the Borrower. Subject to the foregoing sentence, this Agreement shall inure to
the benefit of Westcorp (and its successors and assigns) and the Borrower, and
shall be binding upon the successors and assigns of the parties hereto.
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9.3 HEADINGS. Section headings are included for the sake of
convenience only and shall not affect the interpretation of any provision of
this Agreement.
9.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original Agreement, but all of
which together shall constitute one and the same instrument.
9.5 ENTIRE AGREEMENT. The Loan Documents set forth the entire
agreement and understanding of the parties concerning the subject matter of this
Agreement and supersede all prior agreements, arrangements, and understandings
regarding such subject matter between the parties hereto, which agreements,
arrangements and understandings are merged herein.
9.6 COSTS. Whether or not the transactions hereby contemplated
shall be consummated, the Borrower agrees to pay all out-of-pocket costs and
expenses incurred by Westcorp in connection with the transactions hereby
contemplated (including, without limitation, the performance of any due
diligence by Westcorp) and the preparation, negotiation, execution, delivery,
waiver, Modification and administration of this Agreement, the other Loan
Documents and any other documentation contemplated hereby or thereby, the making
of the Advances and/or the enforcement or protection of the rights of Westcorp
in connection therewith, including but not limited to, Westcorp's legal fees and
costs. Such payments shall be made within five (5) Business Days of receipt of a
written demand by Westcorp.
9.7 SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without invalidating the remaining provisions
hereof or thereof, and any such invalidity, illegality or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
9.8 AMENDMENTS. No Modification or waiver of any provision of this
Agreement or any of the other Loan Documents, and no consent to any departure by
the Borrower herefrom or therefrom (including, without limitation, any
Modification to or deviation from any form of Loan Document required to be
delivered hereunder by the Borrower), shall in any event be effective unless the
same shall be in writing and signed by Westcorp and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.
9.9 MAXIMUM RATE. No provision of this Agreement shall be deemed
to establish or require the payment of interest at a rate in excess of the
maximum rate permitted by applicable law. In the event that the interest
required to be paid under this Agreement exceeds the maximum rate permitted by
applicable law, the interest required to be paid hereunder shall be
automatically reduced to the maximum rate permitted by applicable law. In the
event any interest paid exceeds the then applicable legal rate, the excess of
such interest over the maximum amount of interest permitted to be charged shall
automatically be deemed to be applied to reduce accrued and unpaid Costs, if
any;
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then to reduce accrued and unpaid interest, if any; and then to reduce
Principal; the balance of any excess Interest remaining after application of the
foregoing, if any, shall be refunded to the Borrower.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first set forth above.
WFS RECEIVABLES CORPORATION 2
By:______________________________
Name: XXXX XXXXXXXX
Its: President
WESTCORP
By:______________________________
Name: XXX XXXXXXXX
Its: Executive Vice President,
Chief Financial Officer
and Chief Operating Officer
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