EXHIBIT 10.27
INTEREST RATE SWAP GUARANTEE AGREEMENT
This Interest Rate Swap Guarantee Agreement ("Agreement") is made as of this
30th day of August, 2002, by and between Western Financial Bank, a federal
savings bank ("Bank" or "WFB"), WFS Financial Inc, a California corporation
("WFS"), and WFS Receivables Corporation, a California corporation ("WFSRC") and
is based upon the following recitals. The aforementioned parties shall
hereinafter be collectively referred to as "Companies."
RECITALS
A. WFB is the parent company of WFS, which in turn is the parent company of
WFSRC.
B. WFB desires to reduce the level of risk assets maintained by WFS for the
determination of WFB's regulatory capital requirement while concurrently
avoiding the creation of additional amounts of retained interest in
securitized assets ("RISA") on the consolidated financial statements of
WFS.
C. WFSRC is a first tier subsidiary of WFS and acts as the originator or
co-originator of one or more asset securitization trusts and as a seller
of WFS auto contracts to each of such trusts. The reduction of risk and
avoidance of additional amounts of RISA on the consolidated financial
statements of WFS can be accomplished upon the non-recourse sale of WFS
originated auto contracts on a whole loan servicing released basis to
WFSRC.
D. WFB desires to limit the amount of collateral required and prepayment
risk related to the floating rate note classes issued by the WFS
Financial 2002-1 Owner Trust, which supported the most economic secured
financing available to facilitate the aforementioned loan sale.
E. In consideration of the above recitals B-D, WFB is willing to guarantee
the timely exchange of any variable notes, rates, classes and interest
payments between WFS and WFSRC.
AGREEMENT
In consideration of the mutual promises set forth herein, and in reliance upon
the recitals set forth above, the parties agree as follows:
1. The above recitals are hereby incorporated into this Agreement by
reference and made a part hereto.
2. Guarantee. WFB hereby guarantees the timely exchange of any variable
notes, rates, classes and interest payments due to third parties by WFS or
WFSRC.
3. Further Assurances. The Companies agree that they will modify, amend, or
restate any provision of this Agreement as necessary in order to insure that
this Agreement complies with all applicable federal laws and OTS regulations
with respect to transacting business between the parties.
4. Term.
4.1 This Agreement shall commence as of the date stated above and
shall continue until terminated by the parties.
4.2 This Agreement 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 any party hereto.
4.3 Termination shall not effect the obligations of the Companies
with respect to any event occurring before termination. Each
Company shall be bound by and responsible for any transaction or
expense properly agreed to or incurred by the other Company in
connection with services performed hereunder but not settled,
paid or reimbursed prior to the date of any such termination.
Upon termination of this Agreement, the fee referred to above
will be prorated, but the due date thereof shall not be changed.
5. Representations and Warranties of Each Company. Each Company on its
behalf alone represents and warrants to and for the benefit of the other
Company as follows:
5.1 Corporate Existence and Qualifications. Each Company is either a
corporation or association duly organized, validly existing and
in good standing under the laws of the United States or of the
State of California, as applicable, with full corporate power to
own its properties and to carry on its business as now owned and
operated by Company.
5.2 Licenses: Compliance with Laws. Each Company has all licenses,
franchises, permits and authorizations necessary ("Licenses"),
or is otherwise exempt from having to obtain such Licenses, for
the lawful conduct by the respective Company of its business.
Neither Company has violated, nor is in violation of, any such
licenses, franchises, permits or authorizations or any
applicable statues, 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.
6. Covenants Regarding Corporate Existence.
6.1 Preservation of Corporate Existence and Qualifications. Each
Company shall keep in full effect its existence, rights and
franchises as a corporation or association under the laws of the
jurisdiction in which each is 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.
6.2 Observation of Corporate Formalities. Each Company shall at all
times observe the applicable legal requirements for the
recognition of Company as a corporate entity separate and apart
from any other Company, including without limitation the
following:
(a) Each Company shall maintain corporate records and books
of account separate from those of every other Company;
(b) Each Company shall hold meetings of its Board of
Directors as appropriate to authorize its corporate
actions;
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(c) Each Company shall hold meetings of its shareholder(s)
as appropriate and as required by applicable law in the
jurisdiction in which organized to authorize its
corporate actions;
(d) Each Company shall file all reports required by the
Secretary of State in any and all jurisdictions in which
that Company is licensed or qualified, including the
annual statement by whatever name denominated, in a
timely manner; and
(e) Each Company shall ensure that any applicable yearly
franchise taxes are paid in a timely manner so as to
maintain its corporate existence uninterrupted.
6.3 Advertising. Each Company will at all times hold itself out to
the public as an entity separate from every other Company and
its advertising and marketing shall reflect such separate
corporate existence.
6.4 OTS Regulations. Each Company shall comply with all applicable
OTS regulations. If required by 12 C.F.R. Section 563.37(b), any
instrument evidencing borrowing by a Company shall indicate that
no other Company is responsible for any such debt.
7. Liability; Consultation with Counsel. With respect to the obligations
hereunder, no Company shall assume responsibility or liability with
respect to the business or affairs of any other Company except to the
extent provided for in this Agreement. Each benefiting Company under
this Agreement ("Indemnitor") shall indemnify, defend and hold harmless
the performing Company 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 such
performing Company shall incur or suffer, which arise, result from or
relate to (i) conduct by Indemnitor of its business and operations and
(ii) breach by Indemnitor of its obligations pursuant to this Agreement.
Notwithstanding anything contained herein to the contrary, Indemnitor's
obligations pursuant to this section shall not be applicable to Claims
arising directly from the performing Company'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 performing
Company for any advice, service or facility provided or omitted by
performing Company pursuant to this Agreement. The performing Company
may consult with legal counsel (who may also be counsel to Indemnitor)
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.
8. General.
8.1 This Agreement may be modified, amended or superseded in whole
or in part, at any time, by a writing executed by the parties
hereto.
8.2 The laws of California shall govern this Agreement, except to
the extent federal law or regulation supersedes any such laws.
8.3 This Agreement may be executed in counterparts, all of which,
taken together shall constitute one agreement.
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8.4 No Company shall assign this Agreement without the prior written
consent of each of the other Companies, which consent shall not
unreasonably be withheld.
Wherefore, the undersigned have executed this Agreement as of the date first set
forth above.
WESTERN FINANCIAL BANK
By:
-------------------------------------
Thomas A. Wolfe
Its: President
WFS RECEIVABLES CORPORATION
By:
-------------------------------------
John Coluccio
Its: President
WFS FINANCIAL INC
By:
-------------------------------------
J. Keith Palmer
Its: Sr. Vice President & Treasurer
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