EXHIBIT 10.28
SECURITY AGREEMENT
This security agreement ("Agreement") is made as of the ___ day of
_______, 2002 by and between WFS Receivables Corporation 2 ("WFSRC2") and WFS
Financial Inc ("WFS") and Western Financial Bank (the "Bank") with respect to
the following facts:
RECITALS
A. WFSRC2 and WFS entered into a Sale and Servicing Agreement dated as
of August 1, 2000 with respect to the WFS Financial 2000-C Owner Trust pursuant
to which WFS is entitled to receive additional servicing fees, the payment of
which is deferred until funds are released to WFSRC2 from the spread account
established pursuant to that agreement (the "2000-C Spread Account").
B. WFSRC2 and WFS entered into a Sale and Servicing Agreement dated as
of May 1, 2001 with respect to the WFS Financial 2001-B Owner Trust pursuant to
which WFS is entitled to receive additional servicing fees, the payment of which
is deferred until funds are released to WFSRC2 from the spread account
established pursuant to that agreement (the "2001-B Spread Account").
C. The deferral of payment of accrued Additional Servicing Fees (as
defined in those Sale and Servicing Agreements) result in an advance being
deemed made by WFS to WFSRC2, which advance is an asset of the Bank, the parent
company of WFS, upon consolidation pursuant to GAAP.
D. To ensure compliance with OTS transactions with affiliates
regulations, 12 CFR Section 563.41, WFSRC2 desires to memorialize its intention
that WFS and the Bank have a perfected security interest in the money and other
investments in or made with funds in each of the 2000-C Spread Account and the
2001-B Spread Account, or with respect to any future similar spread account.
AGREEMENT
In reliance upon the foregoing facts and in consideration of the mutual
promises set forth herein, the parties hereto agree as follows:
1. WFSRC2 hereby confirms that it has previously orally granted and does
hereby grant WFS and the Bank a security interest in all money and other
investments in or made with funds in the 2000-C Spread Account and the 2001-B
Spread Account, or with respect to any future similar spread account to secure
payment of any accrued Additional Servicing Fee earned by WFS which is accounted
for as an advance by the Bank.
2. 2001-B Spread Account are deposited with the Bank and that such funds
are invested in reinvestment contracts with the Bank, which essentially results
in all cash in the 2000-C Spread Account and the 2001-B Spread Account being in
possession of the Bank, except as such funds are otherwise disbursed pursuant to
the terms and conditions of the above
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referenced Sale and Servicing Agreements, such that the Bank will have
possession of all such funds and will have perfected the security interest
previously granted and as granted in this Agreement by that possession.
3. The Bank shall have all rights of a secured creditor available under
the California Uniform Commercial Code.
4. By reason of limitations set forth in the articles of incorporation
of WFSRC2, which limitations are included therein as a condition to obligations
issues by WFSRC2 or any trust it originates being rated not less than investment
grade, subject to otherwise meeting applicable qualifications for such rating,
WFSRC2 may not obligate itself to pay the additional servicing fees except out
of funds released from the 2000-C Spread Account and the 2001-B Spread Account,
and that any such obligations of WFSRC2 be subordinated to payment of any such
rated debt, in both cases while such debt is outstanding. WFSRC2 agrees that to
the extent it has not fully paid all accrued Additional Servicing Fees due with
respect to the WFS Financial 2000-C Owner Trust or the WFS Financial 2001-B
Owner Trust at the time that the last of such owner trusts is terminated in the
manner contemplated by the Sale and Servicing Agreement applicable to each such
owner trust, that the obligation of WFSRC2 to fully pay such fees shall be
unconditional and that WFS and the Bank shall have recourse to all assets of
WFSRC2 to enforce that obligation. In addition, notwithstanding the right of
WFSRC2 to receive 50% of all amounts released from the spread account, with the
remaining 50% being paid to WFS to the extent of any accrued Additional
Servicing Fees, WFSRC2 hereby waives and relinquishes its right to receive any
amount released from the spread account for either the WFS Financial 2000-C
Owner Trust or WFS Financial 2001-B Owner Trust unless and until all amounts of
accrued Additional Servicing Fees due to WFS have been paid in full. WFS is
hereby authorized by WFSRC2 to so advise and direct the Owner Trustee to
disburse any such Excess Spread Amounts to WFS and not to WFSRC2, unless and
until all amounts of accrued Additional Servicing Fees due to WFS have been paid
in full.
5. At the sole cost and expense WFSRC2, WFSRC2 shall duly execute and
deliver, or cause to be duly executed and delivered to the Bank or WFS, as each
may request, 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 the Bank or WFS in the money
and other investments in or made with funds in the 2000-C Spread Account and the
2001-B Spread Account, or with respect to any future similar spread account or
to otherwise carry out more effectively the provisions and purposes of this
Agreement as the Bank or WFS may from time to time request.
6. WFSRC2 shall 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 it.
7. That all costs, expenses, obligations and liabilities of WFSRC2 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
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long as by reason of such non-payment and contest no material item or portion of
the assets of WFSRC2 is in jeopardy of being seized, levied upon or forfeited.
8. WFSRC2 shall be in default hereunder if it fails to comply with any
provisions set forth herein. Upon any default by WFSRC2 not cured with in 10
days of written notice thereof from the Bank of WFS, the Bank and WFS shall have
all rights of a secured creditor under the California Uniform Commercial Code.
9. Neither the Bank nor WFS shall cause WFSRC2 to, petition or otherwise
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against WFSRC2 under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of WFSRC2
or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of WFSRC2 at any time that either WFSRC2 or any trust
originated by WFSRC2 have any debt obligations outstanding rated by any Rating
Agency, as that term is defined in either of the above referenced Sale and
Servicing Agreements.
10. All notices, requests, demands and other communications required or
permitted to be given hereunder shall 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 WFSRC2:
WFS Receivables Corporation
00 Xxxxxxx
Xxxxxx Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Fax No.: 000-000-0000
With a copy to:
Xxx XxXxxx, Esq.
00 Xxxxxxx
Xxxxxx Xxxxxxxxxx 00000
Fax No.: 000-000-0000
If to the Bank or WFS:
Western Financial Bank/WFS Financial Inc:
00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Fax No.: 000-000-0000
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Any notice given by messenger or courier delivery as provided in this Section 10
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.
11. No failure or delay on the part of the Bank or WFS in notifying
WFSRC2 of a default, or in exercising, or partial exercise of, any right, power
or privilege hereunder shall operate as a waiver of any such default, or
privilege or right hereunder or otherwise or preclude any other or further
exercise of any other right power or privilege.
12. 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, but subject to any federal law that may pre-empt application
of the law of California. This Agreement may not be assigned, pledged,
hypothecated or otherwise encumbered by WFSRC2. Subject to the foregoing
sentence, this Agreement shall inure to the benefit of the Bank and WFS (and
their respective successors and assigns) and WFSRC2, and shall be binding upon
the successors and assigns of the parties hereto.
13. 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.
14. This Agreement and the Sale and Servicing Agreement 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.
15. No modification or waiver of any provision of this Agreement and no
consent to any departure by WFSRC2 from the Agreement shall in any event be
effective unless the same shall be in writing and signed by the each of the
parties hereto and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
WFS RECEIVABLES CORPORATION
By:
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Its:
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WESTERN FINANCIAL BANK
By:
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Its:
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WFS FINANCIAL INC
By:
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Its:
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