EXHIBIT 10.1
FIRST TIER SUBSEQUENT ASSIGNMENT
This FIRST TIER SUBSEQUENT ASSIGNMENT (this "Agreement"), dated as of
April 14, 2005, is made and entered into by and between WFS Financial Inc, a
California corporation ("WFS") and WFS Receivables Corporation 3, a California
corporation ("WFSRC3"), in reliance upon the following facts:
WHEREAS, WFSRC3 desires to purchase from WFS a portfolio of automobile
retail installment sales contracts and installment loans, primarily originated
by motor vehicle dealers and subsequently purchased by WFS, on a without
recourse servicing released basis;
WHEREAS, WFS is willing to sell such automobile retail installment sales
contracts and installment loans to WFSRC3 pursuant to the terms hereof; and
WHEREAS, WFS has previously sold to WFSRC3 a portfolio of automobile
retail installment sales contracts and installment loans, primarily originated
by motor vehicle dealers and subsequently purchased by WFS, on a without
recourse basis, pursuant to the Sale and Assignment between WFS and WFSRC3,
dated as of March 1, 2005, in accordance with the Sale and Servicing Agreement,
dated as of March 1, 2005, by and among WFS, WFSRC3 and the WFS Financial 2005-2
Owner Trust (the "Sale and Servicing Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Definitions. All capitalized terms not otherwise defined in this Agreement
shall have the meanings given to those terms in the Sale and Servicing
Agreement.
2. Conveyance of Contracts.
a. In consideration of WFSRC3's delivery to or upon the order of WFS of
the purchase price for the Contracts listed on Schedule A hereto (the "Schedule
of Contracts"), WFS hereby sells, grants, transfers, assigns and otherwise
conveys to WFSRC3 on the Subsequent Transfer Date, without recourse (subject to
the obligations herein), all of its right, title and interest, including all
rights to service the Subsequent Contracts (exclusive of the amount, if any,
allocable to any rebatable insurance premium financed by any such Subsequent
Contract) in, to and under each and all of the Subsequent Contracts listed on
that Schedule of Contracts, including, without limitation, all payments of
Monthly P&I received after the close of business on April 13, 2005; all Net
Liquidation Proceeds and Net Insurance Proceeds with respect to any Financed
Vehicle to which a Subsequent Contract relates received after the close of
business on April 13, 2005 and all other proceeds received on or in respect of
any such Subsequent Contract, and any and all security interests in the Financed
Vehicles; the Contract Documents relating to each of such Subsequent Contracts;
and all proceeds in any way
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delivered with respect to the foregoing, all rights to payments with respect to
the foregoing and all rights to enforce the foregoing. Although the parties
intend, and have expressly so stated, that the conveyance of WFS' right, title
and interest in, to and under the Subsequent Contracts pursuant to this
Agreement shall constitute a purchase and sale and not a financing, in order to
protect WFSRC3 in the event that, despite such express intention that the
transaction be treated as a sale, such conveyance is instead deemed to be a
financing, WFS hereby grants to WFSRC3 a first priority security interest in all
of WFS' right, title and interest in, to and under the Subsequent Contracts,
including all proceeds thereof to secure the repayment of such financing, and
agrees this Agreement shall constitute a security agreement under applicable
law.
b. The purchase price for the Subsequent Contracts is $250,000,000.60.
At the Subsequent Transfer Date WFSRC3 shall deliver to WFS the amount on
deposit in the Pre-Funding Account on such date as part of the consideration for
the transfer of the Subsequent Contracts to the Trust pursuant to this
Agreement. To the extent the amount received by WFS from WFSRC3 at the
Subsequent Transfer Date is insufficient to fully pay the purchase price, the
balance shall be accounted for as an advance obligation due from WFSRC3 to WFS
under the Revolving Line of Credit Agreement, as amended, dated as of August 8,
2002, by and between WFS and WFSRC3.
c. WFS has filed or authorized to be filed with the office of the
Secretary of State of the State of California UCC-1 financing statements as
debtor, naming WFSRC3 as secured party and describing all of the Contracts as
collateral. From time to time, WFS shall cause to be taken such actions as are
necessary to continue the perfection of the interests of WFSRC3 in the Contracts
and to continue the first priority security interest in the Financed Vehicles
and their proceeds (other than, as to such priority, any statutory lien arising
by operation of law after the Subsequent Transfer Date which is prior to such
interest), including, without limitation, the filing of financing statements,
amendments thereto or continuation statements and the making of notations on
records or documents of title.
d. If any change in the name, identity or corporate structure of WFS or
the place of its incorporation would make any financing or continuation
statement or notice of lien filed under this Agreement seriously misleading
within the meaning of applicable provisions of the UCC or any title statute, WFS
within the time period required by applicable law, shall file such financing
statements or amendments as may be required to preserve and protect the
interests of WFSRC3 in the Contracts, Financed Vehicles and the proceeds
thereof. Promptly thereafter, WFS shall deliver to WFSRC3 an Opinion of Counsel
stating that, in the opinion of such counsel, all financing statements or
amendments necessary fully to preserve and protect the interests of WFSRC3 in
the Contracts, Financed Vehicles and the proceeds thereof have been filed, and
reciting the details of such filings.
e. WFS shall pay all reasonable costs and disbursements in connection
with the perfection and the maintenance of perfection, as against all third
parties, of WFSRC3's right, title and interest in and to the Contracts and in
connection with
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maintaining the first priority security interest in the Financed Vehicles and
the proceeds thereof.
3. Representations and Warranties of WFS. WFS hereby makes the following
representations and warranties on which WFSRC3 is deemed to have relied in
acquiring the Subsequent Contracts. Such representations and warranties speak as
of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, but shall survive the sale, transfer and assignment of the
Subsequent Contracts to WFSRC3 and the transfer of those Subsequent Contracts by
WFSRC3 to the Trust and the pledge thereof to the Indenture Trustee pursuant to
the Indenture.
a. As to WFS:
i. Organization and Good Standing. WFS is duly organized and
validly existing as a corporation in good standing under the laws of the State
of California, with power and authority to own its properties and to conduct its
business, and has the corporate power, authority and legal right to acquire and
own the Subsequent Contracts.
ii. Due Qualification. WFS is duly qualified to do business as a
foreign corporation in good standing, and shall have obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications,
subject to the effect of 12 C.F.R. Section 560.2.
iii. Power and Authority. WFS has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; WFS
has full power and authority to sell and assign the property to be sold and
assigned to and deposited with WFSRC3, and has duly authorized such sale and
assignment to WFSRC3 by all necessary corporate action; and the execution,
delivery and performance of this Agreement has been duly authorized by WFS by
all necessary corporate action.
iv. Binding Obligation. This Agreement constitutes (A) a valid
sale, transfer and assignment of the Subsequent Contracts, enforceable against
creditors of and purchasers from WFS and (B) a legal, valid and binding
obligation of WFS enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
v. No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of WFS, or any indenture, agreement or other
instrument to which WFS is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
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pursuant to the Bank Documents for which WFS is a party); nor violate any law
or, to the best of WFS's knowledge, any order, rule or regulation applicable to
WFS of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over WFS or its
properties.
vi. No Proceedings. There are no proceedings or investigations
pending, or to WFS's best knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over WFS or its properties: (A) asserting the invalidity of this
Agreement or any of the other Basic Documents, the Notes or the Certificates,
(B) seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement, (C)
seeking any determination or ruling that might materially and adversely affect
the performance by WFS of its obligations under, or the validity or
enforceability of, this Agreement, any of the other Basic Documents, the Notes
or the Certificates or (D) which might adversely affect the federal or state
income tax statements of the Notes or the Certificates.
vii. No Tax Liens. WFS is not aware of any judgment or tax lien
filing against it.
b. As to each Subsequent Contract or as to all of the Subsequent
Contracts listed on the Schedule of Contracts as the case may be:
i. Schedule of Contracts. The information pertaining to each
Subsequent Contract set forth in the Schedule of Contracts was true and correct
in all material respects at the Subsequent Transfer Date and the calculations of
the Principal Balances appearing in such Schedule of Contracts for each such
Subsequent Contract at the Subsequent Transfer Date and at each Distribution
Date thereafter prior to the related Maturity Date have been performed in
accordance with this Agreement and are accurate.
ii. Security Interests. As of the Subsequent Transfer Date, WFS
has taken all steps necessary to perfect its security interest against the
Obligors in the Financial Vehicles securing the Subsequent Contracts and such
Subsequent Contracts granted a valid and enforceable first priority security
interest in favor of WFS (or to the Bank, a Dealer or Third Party Lender, which
security interest has been assigned to WFS) in the related Financed Vehicle, and
such security interest has been duly perfected and is prior to all other liens
upon and security interests in such Financed Vehicle which now exist or may
hereafter arise or be created (except, as to priority, for any lien for unpaid
taxes or unpaid storage or repair charges which may arise after the Subsequent
Transfer Date). WFS has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the Contracts
granted to WFSRC3 hereunder. All financing statements filed against WFS in favor
of WFSRC3 in connection herewith describing the Contracts contain a statement to
the following effect: "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of WFSRC3 unless
WFSRC3 authorizes it.
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iii. Title Documents. (A) If the related Financed Vehicle was
originated in a State in which notation of a security interest on the Title
Document is required or permitted to perfect such security interest, the Title
Document for such Financed Vehicle shows, or if a new or replacement Title
Document is being applied for with respect to such Financed Vehicle the Title
Document will be received within 180 days of the Subsequent Transfer Date and
will show WFS named as the original secured party under the related Contract as
the holder of a first priority security interest in such Financed Vehicle, and
(B) if the related Financed Vehicle was originated in a State in which the
filing of a financing statement under the UCC is required to perfect a security
interest in motor vehicles, such filings or recordings have been duly made and
show WFS named as the original secured party under the related Subsequent
Contract, and in either case, the Indenture Trustee and the Owner Trustee have
the same rights as such secured party has or would have (if such secured party
were still the owner of the Subsequent Contract) against all parties claiming an
interest in such Financed Vehicle. With respect to each Subsequent Contract for
which the Title Document has not yet been returned from the Registrar of Titles,
WFS has received written evidence from the related Dealer that such Title
Document showing WFS as first lienholder has been applied for.
iv. Title to the Contracts. Immediately prior to the Subsequent
Transfer Date, WFS had good and indefeasible title to and was the sole owner of
each Subsequent Contract and the Certificates to be transferred to WFSRC3
pursuant to this Agreement free of liens, claims, encumbrances and rights of any
Person and, upon transfer of each such Subsequent Contract to WFSRC3 pursuant to
this Agreement, WFSRC3 will have good and indefeasible title to and will be the
sole owner of each such Subsequent Contract free of liens, claims, encumbrances
and rights of any Person; except for the Lien of the Indenture Trustee under the
Indenture; provided, however, the Issuer or Indenture Trustee may be required to
file or record a transfer of the lien on a Financed Vehicle prior to enforcement
of that lien in the name of the Issuer or Indenture Trustee, respectively.
v. Current in Payment. As of the Subsequent Transfer Date, each
Subsequent Contract is no more than 30 days delinquent in payment as to all or
any portion of any installment of Monthly P&I.
vi. Tax Liens. As of the Subsequent Transfer Date, there is no
lien against the related Financed Vehicle for delinquent taxes.
vii. Rescission, Offset, Etc. As of the Subsequent Transfer Date,
there is no right of rescission, offset, defense or counterclaim to the
obligation of the Obligor to pay the unpaid principal or interest due under each
Subsequent Contract; the operation of the terms of such Subsequent Contract or
the exercise of any right thereunder will not render such Subsequent Contract
unenforceable in whole or in part or subject to any right of rescission, offset,
defense or counterclaim, and no such right of rescission, offset, defense or
counterclaim has been asserted.
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viii. Mechanics' Liens. As of the Subsequent Transfer Date, there
are no liens or claims for work, labor, material or storage affecting the
related Financed Vehicle which are or may become a lien prior to or equal with
the security interest granted by each Subsequent Contract.
ix. Compliance with Laws. Each Subsequent Contract, and the sale
of the Financed Vehicle sold thereunder, complied, at the time it was made, in
all material respects with all applicable state and federal laws (and
regulations thereunder), including without limitation usury, equal credit
opportunity, fair credit reporting, truth-in-lending or other similar laws, the
Federal Trade Commission Act, and applicable state laws regulating retail
installment sales contracts and loans in general and motor vehicle retail
installment contracts and loans in particular; and the consummation of the
transactions herein contemplated, including, without limitation, the transfer of
ownership of the Subsequent Contracts to WFSRC3, the pledge of the Subsequent
Contracts to the Indenture Trustee by the Issuer, and the receipt of interest by
WFSRC3 will not involve the violation of any applicable state or federal law.
x. Valid and Binding. Each Subsequent Contract is the legal,
valid and binding obligation of the Obligor thereunder and is enforceable in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally; all parties to such Subsequent Contract had full legal capacity to
execute and deliver such Subsequent Contract and all other documents related
thereto and to grant the security interest purported to be granted thereby; and
the terms of such Subsequent Contract have not been waived or modified in any
respect, except by instruments that are part of the Contract Documents.
xi. Enforceability. Each Subsequent Contract contains customary
and enforceable provisions such as to render the rights and remedies of the
holder or assignee thereof adequate for the realization against the collateral
of the benefits of the security, subject, as to enforceability, to bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally.
xii. No Default. As of the Subsequent Transfer Date, there was no
default, breach, violation or event permitting acceleration existing under such
Subsequent Contract (except payment delinquencies permitted by subparagraph (v)
above) and no event which, with notice and the expiration of any grace or cure
period, would constitute such a default, breach, violation or event permitting
acceleration under such Subsequent Contract, and WFS has not waived any such
default, breach, violation or event permitting acceleration except payment
delinquencies permitted by subparagraph (v) above.
xiii. Insurance. At the Subsequent Transfer Date, the related
Financed Vehicle will be covered by (A) a comprehensive and collision insurance
policy (i) in an amount at least equal to the lesser of (a) its actual cash
value or (b) the principal amount due from the Obligor under the related
Subsequent Contract, (ii) naming WFS as a loss payee and (iii) insuring against
loss and damage due to fire, theft, transportation, collision
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and other risks generally covered by comprehensive and collision coverage or (B)
an LDI Policy; provided, however, that if such Financed Vehicle has an unpaid
principal balance of less than $4,000.00 or the related Subsequent Contract has
six or fewer months remaining before its Maturity Date, it will not be required
to be covered by the insurance described in this subparagraph; provided further,
to the extent not paid in full by the Obligor, the related Advanced Insurance
Premium for such LDI Policy shall be an expense of the Master Servicer. WFS
shall at all times comply with all of the provisions of such insurance policies
and the LDI Policy applicable to such Financed Vehicle.
xiv. Acquisition of Contract. Such Subsequent Contract was either
acquired by WFS (or its predecessor in interest) from a Dealer or a Third Party
Lender with which it ordinarily does business or the Bank or originated directly
by WFS in the ordinary course of its business, and no adverse selection
procedures have been utilized in selecting such Subsequent Contract from all
other similar contracts purchased by WFS.
xv. Scheduled Payments. As of the Subsequent Transfer Date,
scheduled payments under such Subsequent Contract are applied in accordance with
the Rule of 78's method or the simple interest method and are due monthly in
level payments through its Maturity Date sufficient to fully amortize the
principal balance of such Subsequent Contract by its Maturity Date, assuming
timely payment by Obligors on Simple Interest Contracts, except that the payment
in the first or last month in the life of the Subsequent Contract may be
minimally different from the level payment.
xvi. One Original. There is only one original of each Subsequent
Contract and such original, together with all other Contract Documents, is being
held by WFS pursuant to Section 3.04 of the Sale and Servicing Agreement.
xvii. Characteristics. With respect to each Contract owned by WFS
at the Statistical Calculation Date, at the Statistical Calculation Date such
Contract had (i) an Outstanding Principal Balance of not less than $541.25 nor
more than $171,490.46, (ii) an original term of not less than 12 months nor
greater than 84 months, (iii) a remaining maturity of not less than three months
nor greater than 84 months, and (iv) an APR of not less than 0.42%.
xviii. Identification. WFS has clearly marked its electronic
records to indicate that each Subsequent Contract is owned by WFSRC3.
xix. Maturity. As of the Subsequent Transfer Date, no Subsequent
Contract had a Maturity Date later than the last day of the Collection Period
immediately preceding the Class D Final Scheduled Distribution Date.
xx. Principal Balance. At the Subsequent Transfer Date the
initial Principal Balance of each Subsequent Contract was not greater than the
purchase price of the related Financed Vehicle and such Principal Balance does
not include any amounts the Master Servicer may have expended in obtaining an
LDI Policy, if any, for such Subsequent Contract.
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xxi. Location of Contract Files. The Contract Files are kept at
one or more of the locations listed in Schedule B to the Sale and Servicing
Agreement.
xxii. Finance Charge. With respect to each Contract owned by WFS
at the Statistical Calculation Date, such Contract provides for the payment of a
finance charge calculated at its APR based on the Rule of 78's or the simple
interest method, and such APR shall be equal to or greater than 0.42% for Rule
of 78's Contracts and Simple Interest Contracts.
xxiii. Third Party Lender Originations. With respect to the
Contracts owned by WFS at the Statistical Calculation Date, the aggregate
Principal Balance as of the Statistical Calculation Date of such Contracts
purchased by WFS from the Bank and Third Party Lenders or originated directly by
WFS is not more than approximately 3.04% of the Statistical Calculation Date
Principal Balance.
xxiv. Simple Interest Contracts. With respect to each Contract
owned by WFS at the Statistical Calculation Date, as of the Statistical
Calculation Date, approximately 99.21% of the Contracts by Statistical
Calculation Date, Principal Balance shall be Simple Interest Contracts and
approximately 0.79% of the Contracts by Statistical Calculation Date Principal
Balance shall be Rule of 78's Contracts.
xxv. New or Pre-owned Vehicles. At least 27.85% of the Contracts
owned by WFS at the Statistical Calculation Date by Statistical Calculation Date
Principal Balance were Contracts that financed new vehicles and not greater than
72.15% were Contracts that financed pre-owned vehicles.
xxvi. States of Origination. Approximately 38.41% of the
Contracts owned by WFS at the Statistical Calculation Date by the Statistical
Calculation Date Principal Balance were originated or purchased by WFS in
California and approximately 61.59% of the Contracts by Statistical Calculation
Date Principal Balance were originated in states other than California.
xxvii. No Government Entity Obligors. Each Subsequent Contract
shall have an Obligor that is not a local, state or federal governmental entity.
xxviii. Chattel Paper. Each Subsequent Contract constitutes
"tangible chattel paper" as defined in the applicable UCC.
xxix. Priority of Interest. This Agreement creates a valid and
continuing security interest (as defined in the UCC) in the Subsequent Contracts
in favor of WFSRC3, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from WFS. Other than
the security interest granted to WFSRC3 pursuant to this Agreement, WFS has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Subsequent Contracts. WFS has not authorized the filing of and is not
aware of any financing statements against WFS that
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include a description of collateral covering the Subsequent Contracts other than
any financing statement relating to the security interest granted to WFSRC3
hereunder, the security interest granted to the Indenture Trustee under the
Indenture or that has been terminated or subordinated to the rights of WFSRC3,
the Issuer and the Indenture Trustee.
xxx. Contract Characteristics as of the Subsequent Transfer Date.
The representations and warranties made in this Section with respect to certain
Contracts as of the Statistical Calculation Date shall also be true and correct
in every material respect for all Contracts as of the Subsequent Transfer Date.
xxxi. Obligor Bankruptcy. As of the Subsequent Transfer Date with
respect to the Subsequent Contracts, WFS is not aware of any Obligor that is or
has been, since the origination of the related Subsequent Contract, the subject
of a bankruptcy proceeding.
xxxii. No Extensions. The number of, or timing of, scheduled
payments has not been changed on any Subsequent Contract on or before the
Subsequent Transfer Date, except as reflected on the computer tape delivered in
connection with the sale of the Subsequent Contracts.
xxxiii. Repossession. On or prior to the Subsequent Transfer
Date, no Financed Vehicle has been repossessed.
xxxiv. Prepayment of Contracts. Any prepayment in full of a
Subsequent Contract by an Obligor to the Master Servicer will consist of the
entire outstanding principal balance of such Subsequent Contract together with
all accrued and unpaid interest thereon.
4. Purchase of Certain Contracts. The representations and warranties of WFS set
forth in Section 3 shall survive delivery of the Contract Documents to WFSRC3 or
as directed by WFSRC3 and shall continue until the termination of this
Agreement. Upon discovery by WFSRC3, WFS or the Owner Trustee, as the case may
be, that any of such representations and warranties was incorrect as of the time
made or that any of the Contract Documents relating to any such Subsequent
Contract has not been properly executed by the Obligor or contains a material
defect or has not been received by WFSRC3, such Person making such discovery
shall give prompt notice to the other such Persons. If any such defect,
incorrectness or omission materially and adversely affects the interest of
WFSRC3, WFS shall, within 90 days after discovery thereof or receipt of notice
thereof, cure the defect or eliminate or otherwise cure the circumstances or
condition in respect of which such representation or warranty was incorrect as
of the time made. If WFS is unable to do so, WFS shall purchase such Subsequent
Contract on the Master Servicer Report Date next succeeding the end of such
90-day period from WFSRC3 for an amount equal to the related Repurchase Amount
for that Subsequent Contract. Upon any such repurchase, WFSRC3 shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in WFS title to any Subsequent Contract
repurchased hereunder. The sole remedy of WFSRC3 with respect to a breach of a
WFS representation and warranty pursuant to
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Section 3 shall be to enforce WFS's obligation to repurchase Subsequent
Contracts pursuant to this Section; provided, however, that WFS shall indemnify
WFSRC3 against all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel, which may be asserted against
or incurred by it as a result of third-party claims arising out of the events or
facts giving rise to such breach.
5. Custody of Contract Files. Subject to further direction by WFSRC3, which it
may give at any time while it owns the Subsequent Contracts in its sole
discretion, WFSRC3 hereby irrevocably appoints WFS to act as the agent of WFSRC3
as custodian of the Contract Documents and any and all other documents that WFS
shall keep on file, in accordance with its customary procedures, relating to a
Subsequent Contract, Obligor or Financed Vehicle, which are hereby
constructively delivered to WFSRC3 with respect to each Subsequent Contract,
provided, however, all obligations of WFS to WFSRC3 hereunder shall be
superceded by the obligations of WFS under the Sale and Servicing Agreement:
a. the original of the Subsequent Contract;
b. documents evidencing the existence of physical damage insurance
covering the Financed Vehicles;
c. the original credit application fully executed by the Obligor; and
d. the original certificate of title or such documents that the Master
Servicer shall keep on file, in accordance with its customary procedures,
evidencing the security interest of WFS in the Financed Vehicle.
e. WFS shall maintain the Contract Documents held by it (by itself or
through one or more Subservicers) in a file area physically separate from the
other installment sales contracts and installment loans owned or serviced by it
or any of its Affiliates, which area shall be clearly marked as directed by
WFSRC3. WFS shall cause the electronic record of the Subsequent Contracts
maintained by it to be clearly marked to indicate that the Subsequent Contracts
have been sold to WFSRC3 and shall not in any way assert or claim an ownership
interest in the Subsequent Contracts.
f. Instructions; Authority to Act. WFS shall be deemed to have received
proper instructions with respect to the Contract Files upon its receipt of
written instructions signed by a Responsible Officer of WFSRC3.
g. Indemnification. WFS shall indemnify WFSRC3 for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever (including the reasonable fees and expenses of
counsel) that may be imposed on, incurred by or asserted against WFSRC3 as the
result of any improper act or omission in any way relating to the maintenance
and custody by WFS of the Contract Files, or the failure of WFS to perform its
duties in compliance with the terms of this Agreement.
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6. Effective Period and Termination. WFS' appointment as custodian shall become
effective as of the Subsequent Transfer Date and shall continue in full force
and effect until terminated under the transfer of the Subsequent Contracts by
WFSRC3 to the Trust pursuant to the Sale and Servicing Agreement.
7. Nonpetition Covenant. WFS shall not petition or otherwise invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of WFSRC3 or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of WFSRC3.
8. Collecting Title Documents Not Delivered at the Subsequent Transfer Date. In
the case of any Subsequent Contract in respect of which written evidence from
the Dealer selling or transferring the related Financed Vehicle that the Title
Document for such Financed Vehicle showing WFS as first lienholder has been
applied for from the Registrar of Titles was delivered to the Owner Trustee on
the Subsequent Transfer Date in lieu of a Title Document, WFS shall use its best
efforts to collect such Title Document from the Registrar of Titles as promptly
as possible. If such Title Document showing WFS as first lienholder is not
received by WFS or the related Subservicer within 180 days after the Subsequent
Transfer Date, then the representation and warranty in Section 3(b)(iii) in
respect of such Subsequent Contract shall be deemed to have been incorrect in a
manner that materially and adversely affects the Certificateholders.
9. Corporate Existence of WFSRC3. During the term of this Agreement, WFSRC3 will
keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, and each other instrument or agreement
necessary or appropriate to the proper administration of this Agreement and the
transaction contemplated hereby. In addition, all transactions and dealings
between WFSRC3 and its Affiliates will be conducted on an arm's-length basis.
10. Amendment. This Agreement may only be amended by a writing signed by all
parties to this Agreement and only if such amendment will not be contrary to any
obligation of WFS or WFSRC3, in any capacity under the Sale and Servicing
Agreement.
11. Protection of Title to Trust.
a. WFS shall file such financing statements and cause to be filed such
continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of WFSRC3
in the Subsequent Contracts and in the proceeds thereof. WFS shall deliver (or
cause to be delivered) to WFSRC3 file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
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b. WFS authorizes WFSRC3 to file such financing statements as may be
required by law fully to preserve, maintain and protect the interest of WFSRC3
in the Subsequent Contracts and in the proceeds thereof.
c. WFS shall not change its name, identity or corporate structure or
place of incorporation in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with Section
11(a) seriously misleading within the meaning of Section 9-507(c) of the UCC,
unless it shall have given WFSRC3 at least 60 days' prior written notice thereof
and shall have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements.
d. WFS shall give WFSRC3 at least 60 days' prior written notice of any
relocation of the principal executive office of WFS if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and shall promptly file any such amendment or new
financing statement.
e. WFS, so long as it is custodian hereunder, shall maintain or cause to
be maintained accounts and records as to each Subsequent Contract accurately and
in sufficient detail to permit (i) the reader thereof to know at any time the
status of such Subsequent Contract.
12. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of California and the obligations, rights, and remedies of the
parties under the Agreement shall be determined in accordance with such laws. To
the extent this Agreement imposes obligations on WFS or rights in favor of
WFSRC3 greater than the terms and conditions of the January S&SA provide, this
Agreement shall control.
13. Notices. All demands, notices and communications upon or to WFS or WFSRC3
under this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt in the case of (a) WFS, at 00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx
00000, Attention: Legal Department, and (b) WFSRC3, at 000 Xxxx Xxxx Xxxxxxx
Xxxx #000, Xxx Xxxxx, Xxxxxx, 00000, Attention: Legal Department, or, as to each
of the foregoing, at such other address as shall be designated by written notice
to the other parties. Any notice so mailed within the time prescribed herein
shall be conclusively presumed to have been duly given, whether or not such
Securityholder shall receive such notice.
14. Severability of Provisions. If one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
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15. Assignment. Notwithstanding anything to the contrary contained herein, the
obligation of WFS under this Agreement may not be assigned by WFS without the
prior written consent of WFSRC3.
16. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be an original and all of which shall together constitute but one
and the same instrument.
17. Headings. The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
WFS RECEIVABLES CORPORATION 3
By: /s/ XXXX X. XXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
WFS FINANCIAL INC
By: /s/ J. XXXXX XXXXXX
--------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Senior Vice President and
Treasurer
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Schedule A
SCHEDULE OF CONTRACTS
(Schedule of Contracts and terms of sale for Subsequent
Contracts sold on April 14, 2005, the Subsequent
Transfer Date)
Closing Date: 4/14/05
Number of Contracts Sold: 14,125
Aggregate Principal Balance of Contracts Sold: $250,000,000.60
Purchase Price of Contracts Sold: $250,000,000.60
List of Contracts sold attached as print-out or on Xx-Xxx XX-Xxx
00
