1
EXHIBIT 10.1.1
REINVESTMENT CONTRACT
AGREEMENT dated as of ______________ by and among WESTERN FINANCIAL
BANK, a federally chartered savings association formerly known as Western
Financial Savings Bank, F.S.B. (including its successors and assigns, the
"Bank"), WFS FINANCIAL AUTO LOANS 2, INC., a California corporation (including
its successors and assigns, "WFAL 2"), and BANKERS TRUST COMPANY, not in its
individual capacity but solely in its respective capacities as trustee (the
"Indenture Trustee") and as collateral agent, under the Indenture dated as of
______________ (the "Indenture"), between the Trust and the Indenture Trustee.
R E C I T A L S
WFS Financial _______ Owner Trust (the "Trust"), created by the Trust
Agreement dated as of _______________________________________, among WFS
Financial Auto Loans, Inc., WFS Investments, Inc., Financial Security Assurance
Inc. (the "Insurer") and Chase Manhattan Bank Delaware, has issued
$______________ aggregate principal amount of ______% Auto Receivable Backed
Notes, Class A-1 (the "Class A-1 Notes"), $______________ aggregate principal
amount of ____% Auto Receivable Backed Notes, Class A-2 (the "Class A-2 Notes"),
$_________ aggregate principal amount of ____% Auto Receivable Backed Notes,
Class A-3 (the "Class A-3 Notes"), $________ aggregate principal amount of
_____% Auto Receivable Backed Notes, Class A-4 (the "Class A-4 Notes" and,
collectively with the Class A-1 Notes and the Class A-2 Notes, the "Notes"), and
one Auto Receivable Backed Certificate (the "Certificate"). The Contracts will
be transferred to the Trust and serviced by the Master Servicer pursuant to the
Sale and Servicing Agreement, dated as of ______________ (the "Sale and
Servicing Agreement"), among the Trust, WFS Financial Auto Loans, Inc. and WFS
Financial Inc (the "Master Servicer"). The Indenture Trustee as trustee under
the Indenture desires to assure that the funds deposited in or credited to the
Collection Account, the Note Distribution Account and the Certificate
Distribution Account (collectively, the "Specified Accounts") from time to time
are invested and that funds deposited in or credited to the Holding Account are
held (but not invested) and applied in accordance with the Sale and Servicing
Agreement, and the Indenture Trustee as collateral agent desires to assure that
funds on deposit from time to time in the Spread Account are invested.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in (i) the Amended and Restated Master RIC Reimbursement Agreement
dated as of November 1, 1998 among Western Financial Bank, WFS Financial Auto
Loans 2, Inc. and Financial Security Assurance Inc. (as may be amended, the
"Master RIC Reimbursement Agreement") and (ii) the Indenture.
A G R E E M E N T S
The parties hereto agree as follows:
Section 1. Investments by the Indenture Trustee. In accordance with, but
subject to, Section 2, the Indenture Trustee shall invest pursuant to this
Agreement with the Bank or WFAL 2 or both, as directed by the Master Servicer,
(i) all funds credited to the Specified Accounts,
2
from time to time, on the Business Day on which such funds are so credited (such
funds so invested being herein referred to as the "Specified Account Invested
Funds"), and (ii) all funds credited to the Spread Account, from time to time,
on the Business Day on which such funds are so credited (such funds so invested
being herein referred to as the "Spread Account Invested Funds"). Each of the
Indenture Trustee, WFAL 2 and the Bank agrees that the aggregate amount of funds
that are permitted to be invested hereunder with WFAL 2 that are Specified
Account Invested Funds on any day shall not exceed twenty-five percent (25%) of
the aggregate amount of Specified Account Invested Funds on such day. The
Indenture Trustee, in addition, shall deliver to WFAL 2 or the Bank pursuant to
this Agreement as directed by the Master Servicer, all funds in the Holding
Account, from time to time, on the Business Day on which such funds are so
credited (such funds so held being herein referred to as the "Holding Account
Deposited Funds"). The Specified Account Invested Funds and the Spread Account
Invested Funds are herein referred to collectively as the "Invested Funds."
Section 2. Investment of Invested Funds. (a) The Master Servicer will
deposit in the Collection Account upon receipt certain collections on the
Contracts as described in Sections 4.01 and 5.02 of the Sale and Servicing
Agreement and the Indenture Trustee will deposit in the Spread Account, the Note
Distribution Account and the Certificate Distribution Account amounts from time
to time required to be deposited in such Accounts pursuant to Article Five of
the Sale and Servicing Agreement. Subject to paragraphs (b) and (c) below, each
of the Bank and WFAL 2, as the case may be, may invest the Invested Funds
received by it in investments selected by it at its discretion (including,
without limitation, in the case of the Bank, the use of such funds in its
operations, or, in the case of WFAL 2, the use of such funds to purchase
Contracts as permitted by its Articles) so long as this Agreement is an Eligible
Investment. Except as specified in paragraphs (b) and (c) below, it shall not be
necessary for the Bank or WFAL 2 to segregate the Invested Funds or the Holding
Account Deposited Funds deposited with it hereunder. If on any date this
Agreement shall cease to be an Eligible Investment or is terminated, then on
such date and on each date thereafter funds in the Specified Accounts will not
be delivered to and invested by the Bank and/or WFAL 2 but will instead be
invested by the Indenture Trustee in Eligible Investments pursuant to the Sale
and Servicing Agreement, funds in the Holding Account will be maintained in such
Account and will not be deposited with the Bank or WFAL 2 pursuant to this
Agreement and funds in the Spread Account will (in each case) not be invested by
the Bank or WFAL 2 but will instead be invested by the Indenture Trustee as
collateral agent in Eligible Investments pursuant to the Sale and Servicing
Agreement.
(b) If on any date the Insurer, acting in its sole discretion, shall
have notified the Bank and WFAL 2 and the Indenture Trustee (in its capacity as
Indenture Trustee under the Indenture) in writing that the Specified Account
Invested Funds are to be held in a segregated trust account, then on such date
(or, if such date is not a Business Day, the next succeeding Business Day) and
on each day thereafter during the term of this Agreement all Specified Account
Invested Funds shall be held in segregated trust accounts established by the
Indenture Trustee as Eligible Accounts at Bankers Trust Company or at another
depositary institution approved by the Insurer. All Invested Funds held in an
account established pursuant to this paragraph shall be invested in Eligible
Investments, except pursuant to paragraph (a) above, pursuant to instructions by
the Bank or WFAL 2 in its discretion or, in the absence of such instructions by
the Bank or WFAL 2, as the case may be, or if any Event of Default shall have
occurred and is continuing, pursuant to instructions by the Insurer.
2
3
(c) If on any date the Insurer, acting in its sole discretion, shall
have notified the Bank and WFAL 2 and the Indenture Trustee (in its capacity as
collateral agent) in writing that the Spread Account Invested Funds are to be
held in a segregated trust account, then on such date (or, if such date is not a
Business Day, the next succeeding Business Day) and on each day thereafter
during the term of this Agreement all Spread Account Invested Funds shall be
held in a segregated trust account established by the Indenture Trustee as an
Eligible Account at Bankers Trust Company or at another depositary institution
approved by the Insurer. All Invested Funds held in an account established
pursuant to this paragraph shall be invested in Eligible Investments, except
pursuant to paragraph (a) above, pursuant to instructions by the Master Servicer
or, in the absence of such instructions, as otherwise provided in Section
5.06(c) of the Sale and Servicing Agreement.
(d) If on any date the Insurer, acting in its sole discretion, shall
have notified the Bank and WFAL 2 and the Indenture Trustee (in its capacity as
Indenture Trustee under the Indenture) in writing that the Holding Account
Deposited Funds are to be held in a segregated trust account, then on such date
(or, if such date is not a Business Day, the next succeeding Business Day) and
on each day thereafter during the term of this Agreement all Holding Account
Deposited Funds shall be held in a segregated trust account established by the
Indenture Trustee as an Eligible Account at Bankers Trust Company or at another
depositary institution approved by the Insurer. All Holding Account Deposited
Funds held in an account established pursuant to this paragraph shall not be
invested.
Section 3. Payments by the Bank and WFAL 2. Each of the Bank and WFAL 2
shall be obligated to make payments in accordance with this Section until this
Agreement shall have terminated and all amounts owing by it under this Agreement
shall have been paid by it in full. On the fifth Business Day prior to each
Distribution Date, the Bank and/or WFAL 2, as the case may be, shall deposit,
and each shall cause the other to deposit, its Proportionate Share (as defined
below), if any, of the following amounts in the following accounts: (A) in the
related Specified Account, the portion of the Specified Account Invested Funds
allocable to such Specified Account with respect to such Distribution Date plus
the amount, if any (the "Reinvestment Earnings"), by which the Interest Payment
(as defined below) for such Distribution Date exceeds the sum of (i) the
aggregate amount of interest collected on the Contracts (adjusted with respect
to each Contract to the Pass-Through Rate and exclusive of such collections that
have been paid to the Master Servicer in reimbursement of a previous Advance)
that is part of the Net Collections for such Distribution Date and (ii) the
amount of the interest portion of the Advance for the related Due Period
(assuming for this purpose that an Advance was made in respect of each
delinquent Contract); (B) in the Spread Account, the Spread Account Invested
Funds; and (C) in the Holding Account, the Holding Account Deposited Funds;
provided, however, that if Invested Funds (or Holding Account Deposited Funds,
as the case may be) are held in one or more segregated trust accounts at the
Indenture Trustee or another depositary institution pursuant to paragraph (b),
(c), or (d) of Section 2, then the Indenture Trustee shall, on the fifth
Business Day prior to each Distribution Date, make or cause to be made the
following respective deposits (as paragraphs (b), (c), and (d) of Section 2 are
then applicable, respectively): (A) in each Specified Account, the Specified
Account Invested Funds with respect to such Specified Account and such
Distribution Date plus the net reinvestment income, if any, thereon, (B) in the
Spread Account, the Spread Account Invested Funds plus the net reinvestment
income, if any, thereon, (C) in the Holding Account, the Holding Account
3
4
Deposited Funds; provided, further, that solely for purposes of this Agreement
the Interest Payment for the first Distribution Date shall be calculated as
interest for the period from the Cut-Off Date to and including _______________.
"Interest Payment" means, with respect to any Distribution Date, an
amount equal to the sum of (i) interest at the Class A-1 Interest Rate on the
outstanding principal balance of the Class A-1 Notes as of the immediately
preceding Distribution Date, (ii) interest at the Class A-2 Interest Rate on the
outstanding principal balance of Class A-2 Notes as of the immediately preceding
Distribution Date, (iii) interest at the Class A-3 Interest Rate on the
outstanding principal balance of Class A-3 Notes as of the immediately preceding
Distribution Date, and (iv) interest at the Class A-4 Interest Rate on the
outstanding principal balance of Class A-4 Notes as of the immediately preceding
Distribution Date.
"Proportionate Share" means, with respect to the Specified Account
Invested Funds, the Spread Account Invested Funds or the Holding Account
Deposited Funds, as applicable, and with respect to the Bank or WFAL 2, as
applicable, the amount of Specified Account Invested Funds or Spread Account
Invested Funds invested hereunder or Holding Account Deposited Funds deposited
hereunder, as applicable, either with the Bank or WFAL 2, as applicable, divided
by the total amount of the Specified Account Invested Funds, the Spread Account
Invested Funds or the Holding Account Deposited Funds, as applicable, invested
or deposited hereunder as of the fifth Business Day before a Distribution Date.
Section 4. Timing of Payments. On the fifth Business Day immediately
prior to each Distribution Date (each, a "RIC Maturity Date"), (i) the
investment pursuant to this Agreement of Specified Account Invested Funds with
respect to such Distribution Date and of all Spread Account Invested Funds shall
mature and be due and payable, and the Holding Account Deposited Funds shall be
required to be returned to and deposited into the Holding Account.
Section 5. Manner of Payments. Deposits into any Specified Account by
the Bank and WFAL 2 in accordance with this Agreement shall be made in
immediately available funds to such Specified Account under advice to the
Indenture Trustee at its address set forth in Section 8. Deposits into the
Spread Account by the Bank and WFAL 2 in accordance with this Agreement shall be
made in immediately available funds to the Spread Account under advice to the
Indenture Trustee as collateral agent at its address set forth in Section 8.
Deposits into the Holding Account by the Bank and WFAL 2 in accordance with this
Agreement shall be made in immediately available funds to the Holding Account
under advice to the Indenture Trustee at its address set forth in Section 8.
Section 6. Term of Agreement. This Agreement shall terminate on the
first date on which (i) the Notes shall have been paid in full as provided in
the Sale and Servicing Agreement, (ii) each of the Bank and WFAL 2 shall have
paid the aggregate amount of all Specified Account Invested Funds and Holding
Account Deposited Funds hereunder to the Indenture Trustee and the aggregate
amount of all Spread Account Invested Funds hereunder to the Indenture Trustee
as collateral agent, and (iii) each of the Bank and WFAL 2 shall have paid all
other remaining amounts owing by it hereunder; provided that no termination of
this Agreement shall limit or restrict any rights of the Insurer under the
Insurance Agreement to recover Unreimbursed Insurer Amounts in respect of any
claims paid under the Policy in respect of this Agreement. This Agreement may be
terminated by the Bank and WFAL 2, with the prior written consent of the
Insurer, upon written notice to the Insurer and the Indenture Trustee on any
date following
4
5
receipt by the Bank and WFAL 2 of a notice from the Insurer pursuant to
paragraph (b) of Section 2 hereof; provided that such termination by the Bank
and WFAL 2 may occur on any RIC Maturity Date without such consent of the
Insurer if (i) each of the Bank and WFAL 2 shall have made all of the payments
referred to in clauses (ii) and (iii) of the immediately preceding sentence, and
(ii) each of the Bank and WFAL 2 shall have paid the amount of the Proportionate
Share of Reinvestment Earnings and net reinvestment income accrued under Section
3 but not otherwise owing on such RIC Maturity Date. If on any date this
Agreement shall cease to be an Eligible Investment, then (A) on such date and on
each date thereafter funds in the Specified Accounts and in the Spread Account
will be invested, and funds in the Holding Account will be maintained, in the
manner specified in the last sentence of Section 2(a), (B) on the next
succeeding RIC Maturity Date, the Bank and WFAL 2 shall make all of the payments
referred to in clause (ii) of the second preceding sentence (other than
Specified Account Invested Funds, if any, relating to the second Distribution
Date immediately following such RIC Maturity Date) and clause (iii) of the
second preceding sentence, and (C) on the RIC Maturity Date next succeeding the
RIC Maturity Date referred to in clause (B) of this sentence, the Bank and WFAL
2 shall pay the aggregate amount of any remaining Specified Account Invested
Funds hereunder to the Indenture Trustee and shall pay all remaining amounts
owing by the Bank or WFAL 2 hereunder, including its Proportionate Share of the
Reinvestment Earnings and net reinvestment income accrued under Section 3 for
the period ending on such date, to the Indenture Trustee, as trustee under the
Indenture and as collateral agent, respectively, in the manner specified in
Section 5, and upon the making of all such payments pursuant to clauses (B) and
(C) of this sentence this Agreement shall terminate; provided, that no such
termination of this Agreement shall limit or restrict any rights of the Insurer
under the Insurance Agreement to recover Unreimbursed Insurer Amounts in respect
of any claims paid under the Policy in respect of this Agreement.
Section 7. Representations. (a) Each of the Bank and WFAL 2 hereby makes
the representations and warranties set forth in Section 2 of the Master RIC
Reimbursement Agreement, on and as of the date hereof as if set forth in full
herein.
(b) Each of the Indenture Trustee, solely in its respective capacities
as trustee under the Indenture and as collateral agent and not in its individual
capacity, the Bank and WFAL 2 represent and warrant, each as to itself to the
other, that this Agreement has been duly authorized, executed and delivered and
constitutes a valid and binding agreement and that neither the execution and
delivery of this Agreement by it nor the performance of its obligations under
this Agreement will contravene any federal or state law or any order, decree,
license, permit or the like which is applicable to it or to which it is a party
or by which it is bound.
Section 8. Notices. All notices and other communications given pursuant
to this Agreement shall be communicated to the addresses listed below, in each
case with a copy to Financial Security Assurance Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Surveillance Department, or to such other
address or to the attention of such other person as such party shall have
designated for such purpose in a written notice to the other:
5
6
If to the Indenture Bankers Trust Company
Trustee, as trustee Four Xxxxxx Xxxxxx, 00xx Xxxxx
under the Indenture Xxx Xxxx, Xxx Xxxx 00000
and as collateral Attention: Corporate Trust
agent Department - Asset Backed
Group
If to the Bank: Western Financial Bank
00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx XxXxxx, Esq.
General Counsel
If to WFAL 2: WFS Financial Auto Loans 2, Inc.
00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx XxXxxx, Esq.
General Counsel
Section 9. Terms. All capitalized terms used herein and not defined
herein shall have the meanings assigned to them in the Sale and Servicing
Agreement or, if not otherwise defined in the Sale and Servicing Agreement, in
the Indenture, as applicable.
Section 10. Amendments. This Agreement may not be amended except with
the prior written consent of the Insurer pursuant to an instrument signed by
each party hereto.
Section 11. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, transferees and assigns; provided that neither the Bank nor WFAL 2
may assign all or any part of this Agreement without the prior written consent
of the Insurer.
Section 12. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT THAT THE DUTIES OF THE INDENTURE
TRUSTEE, AS TRUSTEE UNDER THE INDENTURE AND AS COLLATERAL AGENT, SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
6
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the day and year first
written above.
WESTERN FINANCIAL BANK
By:
----------------------------------------
Name:
Title:
WFS FINANCIAL AUTO LOANS 2, INC.
By:
----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee under
the Indenture and as collateral agent
By:
----------------------------------------
Name:
Title:
7
