EXHIBIT 10.39
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made and entered into as of the 7th day of
March, 2003 (this "Agreement"), by and between WFS RECEIVABLES CORPORATION 3, a
California corporation (the "Debtor") and WESTERN FINANCIAL BANK, a federally
chartered institution ("Secured Party"), with reference to the following:
A. Debtor and Secured Party have entered into that certain Revolving Line
of Credit Agreement dated as of August 8, 2002, as subsequently amended, (the
"Credit Agreement"), pursuant to which the Secured Party has established a
revolving line of credit in favor of the Debtor. All capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the Credit
Agreement.
B. The Debtor and Secured Party are entering into this Agreement to
collateralize the Debtor's obligations under the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF SECURITY INTEREST
As security for the full and timely payment and performance of the
"Secured Obligations" (as defined herein), the Debtor hereby grants to the
Secured Party a continuing security interest in and lien upon any and all of the
Debtor's right, title and interest (whether presently existing or hereafter
arising) in and to the "Collateral". As used herein, the term "Collateral" shall
mean and include the following: (i) the Debtor's retained interest in
securitized asset; and (ii) all proceeds of any of the foregoing; in each case,
whether presently existing or owned or hereafter arising or acquired.
2. SECURED OBLIGATIONS
As used herein, the term "Secured Obligations" shall mean and
include each and all of the following:
2.1 The full and timely payment by the Debtor of the Obligations;
and
2.2 The full and timely performance by the Debtor of all of the
Debtor's obligations, covenants, representations and warranties owing
and/or made to the Secured Party under this Agreement.
3. COVENANTS OF DEBTOR
Until the full payment of the Obligations and until such time as the
Secured Party has no further obligation to lend funds to the Debtor under the
Credit Agreement, the Debtor hereby covenants to the Secured Party as follows:
3.1 SECURITY INTEREST. The Debtor shall at all times maintain or
cause to be maintained in favor of the Secured Party the security interest
granted hereunder as a valid security interest in the Collateral subject
only to such Encumbrances as may be consented to by the Secured Party in
its sole discretion.
3.2 DEFENSE OF COLLATERAL. The Debtor shall diligently and timely
defend the Collateral and the Secured Party's rights therein against all
Encumbrances (other than such Encumbrances as may be consented to by the
Secured Party in its sole discretion);
3.3 DISCHARGE OF LIABILITIES. The Debtor shall at all times timely
pay and discharge all costs, expenses, obligations and liabilities of the
Debtor except (i) any such items being diligently contested in good faith
for which appropriate reserves and provisions as required by GAAP have
been made, and (ii) any such items which if not timely paid and discharged
will not result in any material item or portion of the Collateral being in
jeopardy of seizure, levy or forfeiture;
3.4 FURTHER ASSURANCES. Upon the request of the Secured Party, the
Debtor shall duly execute and deliver at its sole expense, or cause to be
executed and delivered at its sole expense, such further documents and
take such further actions as may be necessary or desirable, in the
reasonable discretion of the Secured Party, to maintain and protect the
Secured Party's security interest granted hereunder in and to all of the
Collateral; and
3.5 COLLATERALIZATION OF PRINCIPAL. Without the prior consent of the
Secured Party, the Debtor shall cause the fair market value of the
Collateral to not be less than the outstanding Principal.
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR
4.1 REPRESENTATIONS AND WARRANTIES. The Debtor hereby represents and
warrants to the Secured Party as follows:
4. 1.1 BINDING AGREEMENT. This Agreement, when executed and
delivered, will constitute the valid and legally binding obligation of the
Debtor and is enforceable in accordance with its terms;
4.1.2 DUE AUTHORIZATION; NO CONFLICTS OR VIOLATIONS. The execution,
delivery and performance of this Agreement, and the grant of the security
interest contemplated herein, (i) has been duly authorized by all
requisite corporate action of the Debtor and will not violate any
provision of any law, any order of any court or other agency of the United
States or of any state thereof; and (ii) will not violate any provision of
the Articles of Incorporation or By-laws of the Debtor, or any provision
of any material agreement or instrument to which the Debtor is a party or
by which the Debtor or any of the Collateral 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 upon the Collateral (other than Encumbrances
approved by the Secured Party in its sole discretion) of any nature
whatsoever;
4.1.3 AUTHORIZATIONS. Any and all authorizations, approvals,
registrations or filings from or with any governmental agency or any other
person or entity, required for the execution, delivery or performance by
the Debtor of this Agreement, have been obtained or made and are in full
force and effect; and
4.1.4 THE SECURITY INTEREST. This Agreement creates and grants a
valid security interest in favor of the Secured Party in the Collateral.
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4.2 MAKING OF AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Debtor made herein shall survive the
execution and delivery of this Agreement and the making of any Advance.
5. EVENT OF DEFAULT
As used herein the term "Event of Default" shall mean the occurrence
of any "Event of Default" (as defined in the Credit Agreement).
6. REMEDIES UPON DEFAULT; LIMITATIONS ON SECURIED PARTY
Upon the occurrence and during the continuation of any Event of
Default, Secured Party shall be entitled to exercise all of the rights,
remedies, powers and privileges of a secured party under the Commercial Code of
the State of California, and all other rights and remedies under any other
applicable laws including the right to realize upon and/or sell the Collateral
or any portion thereof in accordance with applicable law, provided however, the
Secured Party acknowledges that Debtor is expressly limited by Article 5,
Section C, of its Articles of Incorporation and has no corporate authority to
agree to or to incur any debt of any kind which is not rated by each Rating
Agency which has rated any outstanding debt of Debtor or of any trust of which
Debtor is an originator, unless: (a) that debt is fully subordinated to and by
its terms may be repaid only after any amounts then due and payable by Debtor or
any such trust have been paid; (b) that debt is nonrecourse against any assets
of the Debtor other than those assets specifically pledged to secure that debt;
and (c) that debt does not constitute a claim against the Debtor in the event
the assets specifically pledged to secure that debt are insufficient to pay that
debt. The Secured Party hereby acknowledges and agrees that any other provisions
of this Agreement notwithstanding, this Agreement is subject to and the rights
of the Secured Party with respect to the Collateral pledged hereunder are
limited by the provisions of Article 5, Section C, of the Articles of
Incorporation of Debtor.
7. RIGHTS AND REMEDIES CUMULATIVE
Subject to Section 6, no right or remedy conferred upon the Secured
Party herein or in any other agreements between the Debtor and the Secured Party
shall be exclusive of any other right or remedy contained herein or therein.
Such rights and remedies are cumulative and are not exclusive of any right or
remedy which the Secured Party may otherwise have.
8. APPLICATION OF PROCEEDS AFTER AN EVENT OF DEFAULT
Subject to Section 6, after the occurrence of an Event of Default,
all income from the Collateral and all proceeds from any sale of the Collateral
pursuant hereto shall be applied against the Secured Obligations in such order
as the Secured Party may elect in its sole discretion (and any amounts remaining
after such applications shall be remitted to the Debtor or as a court of
competent jurisdiction may otherwise direct); provided, however, that so long as
no Event of Default has occurred and is continuing, the Debtor shall be
permitted to receive and retain all income on and proceeds of the Collateral and
deal with the Collateral in such ways as it deems appropriate (including,
without limitation, demand, xxx for, collect or receive, any money or property
at any time payable or receivable with respect to the Collateral, make any
compromise
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or settlement deemed desirable with respect to any of the Collateral, or extend
the time of payment, or otherwise modify the terms of, or release, any of the
Collateral).
9. TERMINATION OF SECURITY INTEREST
9.1 TERMINATION IN ALL COLLATERAL. Upon the full payment of all of
Obligations, the Secured Party shall release its security interest in all of the
Collateral.
9.2 FURTHER ASSURANCES. With respect to any release of the Secured
Party's security interest in the Collateral pursuant to this Section 9, the
Secured Party shall duly execute and deliver, or cause to be duly executed and
delivered to the Debtor, such agreements, documents and other instruments, and
do or cause to be done such further acts as may be necessary or proper to
terminate (or evidence the termination of) the Secured Party's security interest
in the Collateral or portion thereof, as the case may be.
10. NOTICES
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be given in
accordance with the notice provisions contained in the Credit Agreement.
11. MISCELLANEOUS
11.1 NO WAIVER; MODIFICATIONS. This Agreement may only be amended or
modified by a written instrument executed by all parties hereto and no waiver by
any party hereto will be effective unless in writing and then only to the extent
specifically stated.
11.2 SECTION HEADLINES. Section headings are inserted for the sake
of convenience only and shall not affect the interpretation of any provision of
this Agreement.
11.3 CHOICE OF LAW. That this Agreement shall be subject to,
construed and governed by, the laws of the State of California without giving
effects to such state's conflicts of law provisions. This Agreement may not be
assigned, pledged, hypothecated or otherwise encumbered by the Debtor. Subject
to the foregoing sentence, this Agreement shall inure to the benefit of the
Secured Party (and its successors and assigns) and the Debtor, and shall be
binding upon the successors and assigns of the parties hereto.
11.4 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.
11.5 ENTIRE AGREEMENT. This Agreement and the Credit Agreement set
forth the entire agreement and understanding of the parties hereto concerning
the subject matter of this Agreement and supersede all prior agreements,
arrangements and understandings regarding such
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subject matter between the parties hereto, which agreements, arrangements and
understandings are merged herein.
11.6 COSTS AND EXPENSES. Within five (5) business days of receipt of
a written request by the Secured Party, the Debtor shall promptly reimburse the
Secured Party for all costs and expenses (including reasonable attorneys' fees
and costs) incurred by or on behalf of the Secured Party in connection with the
enforcement of the rights and the protection of the interests of the Secured
Party in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first set forth above.
WFS RECEIVABLES CORPORATION 3
By:
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Its:
WESTERN FINANCIAL BANK
By:
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Its:
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