EXHIBIT 10.45
COLLATERAL ASSIGNMENT AGREEMENT
COLLATERAL ASSIGNMENT AGREEMENT dated as of July 1, 2004 (the "Agreement")
is by and among WESTERN FINANCIAL BANK, a federally chartered savings bank (the
"Bank"), WFS Receivables Corporation ("WFSRC"), and WFS Financial Inc ("WFS").
Capitalized terms used without definition have the meanings set forth in Article
I hereof.
R E C I T A L S
WHEREAS, WFSRC is a wholly owned subsidiary of WFS;
WHEREAS, WFS is a majority owned subsidiary of the Bank;
WHEREAS, WFSRC desires to have the Bank post certain amounts of
Collateral, from time to time, on its behalf pursuant to those certain Interest
Rate Swap Agreements ("Swap Agreements") to which it is a party;
WHEREAS, WFSRC and WFS are parties to that certain Short-Term
Investment Agreement dated March 1, 2004, as amended ("ST Agreement");
WHEREAS, pursuant to the ST Agreement, WFSRC authorizes WFS to provide the
Bank with Restricted Cash in order for the Bank to provide Collateral to Third
Party pursuant to the Swap Agreements;
WHEREAS, the Bank is desirous of posting such Collateral if secured by
Restricted Cash in order to maximize the Bank's earnings assets.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
and in reliance upon the recitals set forth above, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall have the following
respective meanings:
1
(a) "Business Day" means any day that is not (a) a Saturday or
Sunday or (b) a day on which banking institutions in the State of
California are authorized or obligated by law or executive order to be
closed.
(b) "Collateral" means any assets and properties acceptable to the
Third Party pursuant to the Swap Agreements.
(c) "Default" means (i) any failure by WFSRC or WFS to Deliver
Restricted Cash as and when required hereunder, (ii) any other material
breach by WFSRC or WFS of its obligations hereunder and failure to cure
such breach within two (2) Business Days after receipt of notice.
(d) "Delivery" means, with respect to Collateral, all "instruments"
and "certificated securities" payable to the order of the Bank or
specially indorsed to the Bank;
(e) "Lien" means, as applied to the property or assets (or the
income, proceeds, products, rents or profits therefrom) of any Person, in
each case whether the same is consensual or nonconsensual or arises by
contract, operation of law, legal process or otherwise: (a) any mortgage,
lien, pledge, attachment, charge, lease, conditional sale or other title
retention agreement, or other security interest or encumbrance of any
kind; or (b) any arrangement, express or implied, under which such
property or assets (and/or such income, proceeds, products, rents or
profits) are transferred, sequestered or otherwise identified for the
purpose of subjecting or making available the same for payment of debt or
performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person.
(f) "Person" means any individual, sole proprietorship, joint stock
company, unincorporated association, joint venture, corporation,
partnership, business or owner trust, government, governmental department
or agency or any other entity whatsoever.
(g) "Restricted Cash Account" means the amounts placed in general
ledger account with the Bank by or on behalf of WFSRC.
(h) "Third Party" means that certain entity that is a counterparty
to the Swap Agreements with WFSRC pursuant to which the Restricted Cash
and Collateral are being posted.
2
(i) "Termination Date" means the date which is the earlier of (a)
the date on which the Bank and WFSRC have mutually agreed upon or (b) as
required by law, regulation, or government order.
(j) "Uniform Commercial Code" or "UCC" means the Uniform Commercial
Code as in effect in the State of California or other applicable
jurisdiction.
(k) "Rules of Interpretation". The terms "hereof", "herein" or
"hereunder", unless otherwise modified by more specific reference, shall
refer to this Agreement in its entirety. Unless otherwise indicated in
context, the terms "Article", "Section", "Exhibit" or "Annex" shall refer
to an Article or Section of, or Exhibit or Annex to, this Agreement. The
definition of a term shall include the singular, the plural, the past, the
present, the future, the active and the passive forms of such term.
ARTICLE II
OBLIGATIONS
Section 2.01. WFSRC agrees to post cash plus an annual fee of .125% (the
"Restricted Cash") to the Bank, from time to time, in an amount equal to or
greater than the Collateral it desires to have the Bank post for the benefit of
Third Party.
Section 2.02. The Bank shall maintain such Restricted Cash in the
Restricted Cash Account and will pledge Collateral to Third Party, as notified
from time to time by or on behalf of WFSRC.
ARTICLE III
THE COLLATERAL
Section 3.01. Security Interests.
(a) The "Restricted Cash" shall at any time consist of:
(i) any assets or property posted by or on behalf of WFSRC to
Bank from time to time;
(ii) the related documentation, and all proceeds, income and
profits thereon, and all interest, principal and other payments and
distributions with respect thereto;
3
(iii) all rights and remedies for the enforcement of payment
of any principal, interest and proceeds;
(iv) any collateral securing any Restricted Cash including,
without limitation, all rights and remedies of a beneficiary of such
security to foreclose upon, repossess and sell the related
collateral, or all rights and remedies assertable against any Person
other than the related obligor under a guaranty, warranty or
otherwise in connection with any Restricted Cash;
(v) insurance proceeds, if any, and any other proceeds
received in connection with the disposition, repossession,
foreclosure, destruction or condemnation of, or impairment of title
to, any Restricted Cash;
(vi) any cash, securities or other property received on
account of the Restricted Cash from any liquidation thereof or any
adjustment of debt of the obligors and any portion of the Restricted
Cash which may be distributed in kind in connection with any such
liquidation or adjustment of debt of the obligors;
(vii) the Restricted Cash Account and each other account, if
any, established by or with the Third Party hereunder; and
(viii) all distributions, revenues, products, substitutions,
benefits, profits and proceeds, in whatever form, of any of the
foregoing.
(b) The Bank agrees that it will not (i) use any adverse selection
method in including Collateral hereunder, and (ii) include any Collateral
which would be charged off in accordance with its normal accounting
practices. If any Collateral Delivered to the Third Party hereunder shall
be or become subject to charge off by the Third Party, the Bank will
promptly substitute new Collateral therefor to the extent necessary to
satisfy the requirements of Section 3.02 hereof.
In order to effectuate the provisions and purposes of this
Agreement, including to effectuate the collateral assignment to the Third
Party pursuant to this Section 3, the Bank hereby Delivers, and in the
future agrees to Deliver, to the Third Party, all items of Collateral
pledged by it hereunder in which a security interest must be perfected by
possession ("Security Interest"). The Bank hereby agrees to take all
additional steps that may be necessary or reasonably requested by the
Third Party or WFSRC from time to time for the perfection, preservation,
protection, maintenance or continuation of such transfers, assignments and
security interests including, but not limited to, the execution,
recording, registering and filing of any appropriate collateral
assignments, security interests and Uniform
4
Commercial Code financing statements and the making of notations on
records or documents of title.
The Security Interests are granted as security only and shall not
(i) transfer or in any way affect or modify, or relieve WFSRC, from any
obligation to perform or satisfy, any term, covenant, condition or
agreement to be performed or satisfied by it under or in connection with
this Agreement or with the Third Party, (ii) impose any obligation on the
Bank to perform or observe any such term, covenant, condition or agreement
or impose any liability on the Bank for any act or omission on its part
relative thereto or for any breach of any representation or warranty on
its part contained therein or made in connection therewith.
Section 3.02. Priority. WFSRC, intends that the Security Interests granted
hereunder to be prior to all other Liens with respect to the Restricted Cash,
and WFSRC shall take all actions necessary to obtain and maintain, in favor of
the Bank, a first lien on and a first priority, perfected security interest in
the Restricted Cash other than in general intangibles and rights under insurance
policies not perfected by the means used to perfect the Security Interest in the
items of Restricted Cash.
Section 3.03. Maintenance of Restricted Cash.
(a) Safekeeping. The Bank agrees to maintain the Restricted Cash
received by it and all records and documents relating thereto at the Bank.
The Bank shall keep or cause to be kept all Restricted Cash and related
documentation in its possession separate and apart from all other property
that it is holding in its possession and from its own general assets and
shall maintain accurate records pertaining to the Restricted Cash and the
Restricted Cash Account in such a manner as shall enable the Bank to
verify the accuracy of such record-keeping. The Bank's books and records
shall at all times show that the Restricted Cash is held by the Bank on
behalf of WFSRC. The Bank will promptly report to WFSRC or its designee
any failure on its part to hold the Restricted Cash as provided in this
Section and will promptly take appropriate action to remedy any such
failure.
(b) Access. The Bank, or its respective duly authorized
representative, attorney, auditor or designee, shall permit WFSRC or its
designee to inspect the Restricted Cash or Collateral in its possession or
otherwise under the control of the Third Party.
Section 3.04. General Authority. WFSRC hereby irrevocably appoints the
Bank as its true and lawful attorney, with full power of substitution, to
exercise, at any time while a Default has occurred and is continuing, all or any
of the following powers with respect to all or any of the Restricted Cash:
5
(i) to demand, xxx for, collect, receive and give acquittance
for any and all monies due or to become due upon or by virtue
thereof,
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectually
as if the Bank were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto;
Provided that the Bank will give WFSRC or its designee such prior notice of the
time and place of sale of any of the Restricted Cash as may be required pursuant
to Section 6.01 hereof.
ARTICLE IV
THE COLLATERAL ACCOUNT
Section 4.01. Collateral Account Funds. Payments on the Collateral
received by the Third Party shall be paid over to the Bank.
Section 4.02. General Provisions Regarding the Accounts. Upon Delivery or
other pledge of Restricted Cash hereunder, the Bank will have a valid perfected
first priority security interest in such Restricted Cash.
Section 4.03. Waiver of Setoffs. The Bank hereby expressly waives any and
all rights of setoff that the Bank may otherwise at any time have under
applicable law with respect to the Restricted Cash Account and agrees that
amounts in the Restricted Cash Account shall at all times be held and applied
solely in accordance with the provisions of this Agreement.
Section 4.04. Control by the Bank. WFSRC shall comply with notices and
instructions given by the Bank only if expressly contemplated hereby.
6
ARTICLE V
COVENANTS OF THE BANK AND WFSRC AND WFS
Section 5.01. Preservation of Collateral. The Bank shall take such action
as is necessary and proper with respect to the Collateral in order to preserve,
maintain and service such Collateral and to cause the Bank to perform its
obligations with respect to such Collateral as provided herein. The Bank will
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such instruments of transfer or take such other
steps or actions as may be necessary to perfect the Security Interests granted
hereunder (a) to Third Party, all Collateral, to ensure that such Security
Interests rank prior to all other Liens and to preserve the priority of such
Security Interests and the validity and enforceability thereof. Upon any
Delivery or substitution of Collateral, the Bank, as pledgor, shall be obligated
to create for the benefit of the Third Party a valid first Lien on, and valid
and perfected, first priority security interest in, all Collateral so delivered
and to deliver such Collateral to the Third Party, free and clear of any other
Lien, together with satisfactory assurances thereof, and to pay any reasonable
costs incurred by the Bank or otherwise in connection with such Delivery.
Section 5.02. Waiver of Stay or Extension Laws; Marshalling of Assets. The
Bank covenants, to the fullest extent permitted by applicable law, 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 any sale of the
Collateral or any part thereof in accordance with this Agreement or the
possession thereof by any purchaser at any sale, pursuant to and in accordance
with Section 6.01 hereof; and the Bank, to the fullest extent permitted by
applicable law hereby waives the benefit of all such laws, and covenant that
they will not hinder, delay or impede the execution of any power herein granted
to the Bank, but will suffer and permit the execution of every such power as
though no such law had been enacted. The Bank shall waive, to the fullest extent
permitted by applicable law, all right to have the Collateral marshalled upon
any foreclosure or other disposition thereof.
Section 5.03. Representations and Warranties of WFSRC and WFS. Upon
receipt by the WFSRC, WFS or the Bank of a notice stating that a Default has
occurred and is continuing, the defaulting party shall deliver to the
non-defaulting party(ies) all documents and instruments related thereto.
7
Section 5.04. Licenses: Compliance with Laws. Each of WFSRC and WFS have
all licenses, franchises, permits and authorizations necessary for the lawful
conduct by WFSRC or WFS of its business. Each of WFSRC and WFS have not
violated, and is not in violation of, any such licenses, franchises, permits or
authorizations or any applicable statutes, laws, ordinances, rules or
regulations of any federal, state, or local governmental bodies, agencies or
subdivisions having, asserting or claiming jurisdiction over it or over any part
of its operations.
Section 5.05. Corporate Existence and Qualifications.
(a) WFSRC is a corporation or association duly organized, validly
existing and in good standing under the laws of the State of Nevada with
full corporate power to own its properties and to carry on its business as
now owned and operated by WFSRC.
(b) WFS is a corporation or association duly organized, validly
existing and in good standing under the laws of the State of California
with full corporate power to own its properties and to carry on its
business as now owned and operated by WFS.
Section 5.06. Covenants Regarding Corporate Existence.
(a) Preservation of Corporate Existence and Qualifications. Each of
WFSRC and WFS will keep in full effect its existence, rights and
franchises as a corporation or association under the laws of the
jurisdiction in which organized and will obtain and preserve its
qualifications to carry on business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary.
(b) Observation of Corporate Formalities. Each party shall at all
times observe the applicable legal requirements for the recognition of the
other(s) as a corporate entity(ies) separate and apart from each other,
including without limitation the following:
(i) Each party shall maintain corporate records and books of
account separate from those of the other party(ies);
(ii) Each party shall not at any time commingle its funds with
another party;
(iii) Each party shall hold meetings of the Board of Directors
as appropriate to authorize its corporate actions;
8
(iv) Each party shall hold meetings of its shareholder(s) as
appropriate and as required by the Corporations Code of the
jurisdiction in which organized to authorize its actions;
(v) Each party shall file all reports required by the
Secretary of State in all jurisdictions in which it is licensed or
qualified, including the annual statement by whatever name
denominated, in a timely manner; and
(vi) Each party shall ensure that yearly franchise taxes are
paid in a timely manner so as to maintain its corporate existence
uninterrupted.
Section 5.07. Regulations. Each of the parties shall comply with all
applicable federal and state regulations, including OTS.
Section 5.08. Liability: Consultation with Counsel. The Bank shall assume
no responsibility or liability with respect to the business or affairs of WFSRC
or WFS. WFSRC and WFS shall indemnify, defend and hold harmless the Bank against
and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies (collectively the
"Claims"), including without limitation interest penalties and attorney's fees,
that the Bank shall incur or suffer, which arise, result from or relate to (i)
conduct by WFSRC or WFS of its business and operations and (ii) breach by WFSRC
or WFS of its obligations pursuant to this Agreement. Notwithstanding anything
contained herein to the contrary, WFSRC's or WFS's obligations pursuant to this
section shall not be applicable to Claims arising directly from the Bank's bad
faith, gross negligence or willful misconduct. This Agreement shall create no
right, benefit or privilege in favor of any person not a party hereto, and no
person not a party hereto shall have any recourse against the Bank for any
advice, service or facility provided or omitted by the Bank pursuant to this
Agreement. The Bank may consult with legal counsel (who may also be counsel to
WFSRC or WFS) concerning any questions that may arise with respect to its duties
and obligations hereunder, and it shall be fully protected in respect of any
action taken or omitted by it hereunder in good faith reliance on any opinion of
such counsel with respect to any such duty or obligation.
ARTICLE VI
REMEDIES UPON DEFAULT
Section 6.01. Rights and Remedies Upon Default.
9
(a) In addition to and not in limitation of the rights otherwise
provided to the Bank pursuant to this Agreement, to the fullest extent
permitted by applicable law, if a Default has occurred and is continuing,
the Bank may in its discretion exercise the following rights, privileges
and remedies:
(b) Collection of the Collateral. The Bank shall have the right to
collect all proceeds of the Collateral or Restricted Cash, to pay all
expenses of such collection, including the reasonable expenses and
compensation of the Bank, its agents and attorneys, and to apply the
remainder of the moneys so received as provided herein.
(c) In the event that WFSRC or WFS shall default in the performance
or observance of any covenant or agreement contained herein, the Bank
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.
Section 6.02. No Remedy Exclusive. No right or remedy herein conferred
upon or reserved to the Bank is intended to be exclusive of any other right or
remedy, and every right or remedy 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 Bank, and the exercise of or the beginning of the
exercise of any right or 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.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Further Assurances. WFSRC and WFS shall take such action and
deliver such instruments, in addition to the actions and instruments
specifically provided for herein, as may be reasonably requested or required by
the Bank to effectuate the purpose or provisions of this Agreement or to confirm
or perfect any transaction described or contemplated herein. The parties hereto
will make any changes required by federal or state regulations if mutually
agreed by the parties hereto and if there is no such mutual agreement, the Bank,
WFSRC and WFS shall agree to terminate this Agreement.
10
Section 7.02. Waiver. Any waiver by any party of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and stop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 7.03. Severability. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Bank hereunder is unavailable or unenforceable
shall not affect in any way the ability of the Bank to pursue any other remedy
available to it.
Section 7.04. Notices. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Bank:
Western Financial Bank
00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
11
(ii) If to WFSRC:
WFS Receivables Xxxxxxxxxxx
Xxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
(iii) If to WFS:
WFS Financial Inc
00 Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 7.05. Term of this Agreement. This Agreement shall take effect on
the date hereof and shall continue in effect until the Termination Date. On the
Termination Date, this Agreement shall terminate, all obligations of the parties
hereunder shall cease and terminate and the Collateral, if any, held hereunder
and not to be used or applied in discharge of any obligations of WFSRC under
this Agreement, shall be released to and in favor of WFSRC or its designee.
Section 7.06. This Agreement may be terminated by either party without
cause upon five (5) days prior written notice and may be terminated immediately
for breach of any covenant, obligation, or duty herein contained or for
violation of law, ordinance, statute, rule or regulation (collectively referred
to as "law") governing the conduct of either party hereto.
Section 7.07. This Agreement may be modified, amended or superseded in
whole or in part, at any time, by a writing executed by the parties hereto.
Section 7.08. This Agreement shall be governed by the laws of California,
except to the extent any such laws are superseded by federal law or regulation.
Section 7.09. This Agreement may be executed in counterparts, all of
which, taken together shall constitute one agreement.
12
Section 7.10. Neither party shall assign this Agreement without the prior
written consent of the other party, which consent shall not unreasonably be
withheld.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date set forth on the first page hereof.
WESTERN FINANCIAL BANK
By: ________________________________
Name:
Title:
WFS RECEIVABLES CORPORATION
By: ________________________________
Name:
Title:
WFS FINANCIAL INC
By: ________________________________
Name:
Title:
13
