EXHIBIT 10.8
[WFS FINANCIAL(R) LOGO]
DEALER AGREEMENT
In consideration of the mutual promises and agreements contained herein, WFS
Financial Inc. ("Company") and the undersigned ("Dealer") agree as follows:
1. Dealer shall from time to time sell, transfer, and assign to Company,
in accordance with this Agreement, chattel paper (hereinafter called
"Contracts") including, but not limited to, purchase money security
agreements and/or retail installment sales contracts as Company in its
sole discretion shall elect to purchase. The Contracts will arise from
the credit sale by Dealer of motor vehicles, accessories, service
contracts, insurance (including credit life, accident and health
insurance) and related items, debt cancellation/GAP programs, and other
applicable programs.
2. Dealer agrees that all Contracts shall be executed only on forms
approved by Company. Dealer will provide, at a minimum, the following
documents before the Company will purchase a Contract: the original
signed contract; the original signed credit application; the
lienholder's copy of the application for title properly completed;
physical damage insurance form signed by the customer; co-signer
notice, if required; copy of manufacturer's invoice; copy of Dealer's
xxxx of sale; signed arbitration agreement and signed Addendum to the
Contract, if applicable; and other forms as may be required from time
to time by the Company.
3. Dealer agrees and warrants that it has obtained all necessary authority
from its board of directors and, if applicable, from its shareholders,
if incorporated, or its members if a limited liability company, for the
making of this Agreement, the Contracts and each related agreement to
which the Dealer is a party, and each such document constitutes a valid
and binding obligation of Dealer enforceable against Dealer in
accordance with its terms.
4. All Contracts purchased by Company shall be without recourse to the
Dealer except as otherwise agreed.
5. As to each Contract offered and sold by Dealer to the Company, Dealer
agrees and does hereby warrant, represent, and covenant that:
a) the Contract is a valid and enforceable deferred payment
obligation for the amount set forth in the Contract, arising
out of a bona fide sale of goods or the rendition of services
in the ordinary course of business, which has been finally
accepted by the buyer(s) named in the Contract (hereinafter
referred to as the "buyer," whether one or more) and for which
buyer is unconditionally liable without right of offset;
b) the Contract covers goods and services owned or provided by
Dealer free and clear of all liens, security interests, claims
or encumbrances;
c) Dealer has the authority to sell and assign the Contract free
and clear of all liens and encumbrances;
d) there are no disputes, offsets, legal or equitable defenses or
counterclaims against the Contract or the vehicles subject
thereto;
e) no information contained in buyer's or co-signer's credit
application has been altered or modified by Dealer, and Dealer
has not advised or suggested to buyer or co-signer the
reporting or omission of any information in the credit
application or any other document in connection with the
Contract other than what buyer or co-signer knows to be true,
or correct.
f) Dealer has sold, delivered, and installed the goods and
services described in the Contract;
g) the descriptions of the goods and services and other
information contained in the Contract are in all respects true
and complete;
h) the buyer named in such Contract is bona fide, has legal
capacity to make the Contracts, is solvent and financially
able to pay, and each of the buyers signatures is valid and
genuine."
i) the buyer is the registered owner of the vehicle;
j) Dealer has confirmed that each buyer possesses a current and
valid driver's license that contains buyer's photograph and is
issued by the buyer's state of residence.
k) the down payments made by the buyer have been made in cash,
unless otherwise specified in the Contracts;
l) no part of the down payment has been loaned directly or
indirectly by Dealer to the buyer;
m) none of the goods and services mentioned in the Contract will
be rented with or without a driver, or held out or used as a
taxi or other form of public conveyance;
n) the buyer and any guarantor or co-signer shall not have been
induced to enter into the Contract by any misrepresentations,
suppressions or omissions by Dealer regarding the goods or
services sold under the Contract;
o) Dealer has provided Company all credit information furnished
Dealer by the buyer, co-signer, or any guarantor of the
Contract, and to the best of dealer's knowledge all such
information is true, complete and accurate.
1 of 4
[WFS FINANCIAL(R) LOGO]
p) Dealer has secured and perfected for Company a security
interest in the vehicle free and clear of all liens and
encumbrances, and will deliver to the Company evidence
satisfactory to the Company of such security interest within
twenty (20) days of the date of the Contract or less than
twenty (20) days if required by the applicable state Motor
Vehicle Division law and regulations;
q) the sale and financing of any insurance, service contracts,
debt cancellation/GAP, or other coverage, or program provided
or arranged by Dealer do not violate any applicable law or
regulation. Service contracts, insurance documentation, debt
cancellation/GAP, or other documentation related to various
other programs, and any rebates of unearned premiums will be
delivered to buyer by Dealer within the time required by law,
or if buyer cancels the policy, the rebates will be sent to
the Company as required by law;
r) the vehicle is insured by an insurance company acceptable to
the Company against fire, theft and collision with the Company
named as loss payee and written evidence of such insurance has
been or promptly will be provided to the Company;
s) there have been no adjustments in the cash price of the goods
or services sold in the Contract as a result of this
Agreement;
t) Dealer does not charge the buyer for filing fees or other
costs paid by Dealer to public officials to perfect a security
interest in the goods sold under the Contract except where
allowed by law, and Dealer does not make any other type of
charge, other than clearly denominated finance charges, unless
those charges also are charged in cash transactions;
u) all disclosures required by law or regulation were properly
made to the buyer prior to the buyer's signing the Contract
and no material fact relating to the Contract or the goods and
services sold under the Contract was misrepresented to the
buyer or omitted from any required disclosure to the buyer;
v) Dealer has provided the buyer with a completed Contract and
any other document required by applicable law, and the
information filled in on the Contract and in any other
document given to buyer by Dealer is accurate and complete;
w) the Contract complies with, and, in the underlying
transaction, Dealer has complied with, all applicable laws and
regulations including, without limitation, the Fair Credit
Reporting Act, the Equal Credit Opportunity Act, the Federal
Truth in Lending Act, the FTC Used Motor Vehicle Trade
Regulation Rule, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, Gramm Xxxxx Xxxxxx Act, and all
other federal, state and local laws, rules and regulations now
or hereafter in effect that apply to the extension of credit,
consumer transactions or the sale or financing of the goods
and services covered by the Contract;
x) Dealer promptly will forward to the proper authorities all
federal, state and local fees and taxes due in connection with
the sale and financing of the Property;
y) all charges that Dealer is required by law to disclose in the
Contract are accurately disclosed;
z) extended service agreements or mechanical breakdown protection
sold under the Contract is optional to the buyer and is
offered for sale in connection with comparable cash
transactions at a price equal to that disclosed on the face of
the Contract;
aa) within twenty (20) days from the contract date, or less than
twenty (20) days if required by the applicable state Motor
Vehicle Division law and regulations, Dealer will apply to the
state motor vehicle division or agency for a valid certificate
of title evidencing the buyer's ownership of the goods
described in the Contract and the Company's first priority
lien on those goods;
bb) the certificates of title regarding the goods sold under the
Contract have not been issued as impaired or branded titles,
including but not limited to, titles noted as: salvage titles,
lemon law buy backs, prior police vehicle, prior taxi, or xxxx
market titles; and
cc) Dealer shall provide and maintain service on all goods sold
under the Contract in accordance with all representations and
warranties (including extended service agreements) and
standard practices and policies, and shall use its best
efforts to resolve any disputes relating to such services.
dd) Dealer will not use or disclose to any other party any
nonpublic personal information that it receives from Company
or a financial institution in connection with the Contract or
this Agreement, except to perform hereunder in accordance with
this Agreement. For purposes of this Agreement, "nonpublic
personal information" shall have the meaning set forth in the
Gramm Xxxxx Xxxxxx Act and applicable state's law and
implementing regulations.
ee) As regards confidential information or nonpublic personal
information, Dealer agrees that it will implement appropriate
security safeguards and measures designed to meet the
objectives of the Gramm Xxxxx Xxxxxx Act and implementing
regulations. Upon request Dealer will provide evidence
reasonably satisfactory to Company that it has satisfied the
obligations required by this Section.
2 of 4
[WFS FINANCIAL(R) LOGO]
Dealer unconditionally guarantees payment and performance of all
Contracts with respect to which any one or more of the foregoing
warranties, representations or covenants are breached or are false. If
any of the forgoing warranties, representations, or covenants are
breached by Dealer, Dealer agrees unconditionally to repurchase any
Contract upon demand for the full amount unpaid on the Contract (less
any refunds of unearned finance charge).
6. The Company shall establish from time to time, the minimum annual
percentage rate (the "buy rate") and the maximum annual percentage rate
at which the Company will purchase a Contract, which rate shall be
shown on the Company's buy sheet. Dealer participation, the portion of
the finance charge which is paid to the Dealer, will be determined by
the Company from time to time, at its sole discretion.
% of the Dealer participation will be retained by the Company
as a non-refundable reserve.
7. The term of the recapture period shall be in accordance with one of the
boxes checked below:
a) [ ]During the first ____________days from the Contract date (the
"recapture period"), Dealer shall refund to the Company the entire
Dealer Participation paid to Dealer if (i) the buyer prepays the
Contract in full before maturity, (ii) the buyer defaults, (iii) a
bankruptcy action is filed by or against buyer, or (iv) the Company
repossess the vehicle, whether due to default in the terms of the
Contract or by a voluntary repossession at the request of the buyer, or
b) [ ] During the entire term of the contract (the "recapture period"),
If during the recapture period, because of prepayment, default,
refinancing, repossession, or repossession sale, the buyer becomes
entitled by law to a refund of the unearned portion of the finance
charge on a Contract, then the respective obligations of Company and
Dealer for the refund shall be proportionate to their sharing of the
finance charge pursuant to Paragraph 5 and shall be handled as follows:
(a) the refund shall be computed in accordance with the Rule of 78s,
the Sum of the Periodic Time Balances, or Actuarial method as required
under applicable state law for the type of Contract purchased, (b)
Company's obligation shall be for that amount of the refund which
Company would have been required by law to credit to the buyer if the
original finance charge in the Contract had not included that portion
of the Dealer Participation paid to Dealer when the Company acquired
the Contract from Dealer, and (c) Dealer shall pay to the Company
promptly on demand that part of the refund which is the difference
between the refund credited to the buyer and the amount of the refund
which is Company's obligation under this refund Agreement.
Dealer is not responsible for repayment of any Dealer Participation or
unearned finance charge after the recapture period.
8. a) Dealer shall forward to the Company any unearned premium for
credit life or disability insurance or unearned payment for extended
service contracts if the policies or service contracts are canceled,
regardless of whether the request for the refund is made by the buyer
or the Company; and
b) if the Contract is prepaid for any reason and the Company
rebates any unearned service contract payments, or credit life or
disability insurance premiums, the Company will xxxx the Dealer for the
rebated amounts and the Dealer agrees to pay for such refunds within
ten (10) days of billing.
9. The amount or method of calculating the Dealer Participation may be
changed from time to time by the Company, which changes shall be
effective immediately upon notice to Dealer. For all Contracts which
have been approved for purchase by the Company prior to such notice,
previous commitments will apply.
10. Dealer agrees not to accept payments or tender of payments made to
Dealer by buyer for any Contracts sold to the Company, and to provide
notice to the buyer of the assignment and sale of the Contract to
Company and of Company's rights under the Contract. Notwithstanding the
foregoing, if Dealer receives any payments, Dealer further agrees
immediately to forward to Company any payment in the original form
received by Dealer in connection with a Contract purchased by Company.
11. Contracts shall be assigned by Dealer on Contract forms approved by the
Company. Such assignment shall govern the rights and responsibilities
of the parties to this Agreement, except as they are modified herein.
In the event of a conflict between this Agreement and such assignment,
this Agreement shall control. The Company shall be under no obligation
to purchase any Contracts which are unacceptable to it for any reason,
including the credit-worthiness of the buyer. Following an assignment
of any Contract, the Company shall have the right, in its sole
discretion, to modify, extend, renew, or otherwise change the terms of
any Contract, to compromise or adjust claims in connection with
Contracts purchased hereunder, and to release any collateral securing a
Contract, all without discharging any of Dealer's warranties,
representations and covenants in connection with a Contract or under
this Agreement or without affecting the enforceability of this
Agreement.
12. Dealer agrees to indemnify and hold Company harmless from any claims,
demands, losses, liabilities, damages and costs of defense, including
without limitation, reasonable attorneys' fees, resulting from any
breach of this Agreement, any breach of any warranty made in this
Agreement, or any violation or alleged violation of any federal, state
or local law, rule or regulation in connection with a transaction
underlying a Contract, or arising in connection with any Contract
(including the preparation and completion of Contracts). Dealer agrees
to assist and cooperate with Company in enforcing Company's rights
under all
3 of 4
[WFS FINANCIAL(R) LOGO]
Contracts. Dealer shall immediately notify Company of any notice given
to Dealer of any setoff against, claim arising from, or defenses to a
Contract or goods or services subject to any Contract.
13. Dealer hereby waives any right to require Company to: (a) proceed
against the buyer under any Contract; (b) proceed against or exhaust
any security for a Contract held by Company; or (c) pursue any other
remedy in Company's power whatsoever.
14. Dealer hereby expressly authorizes the Company to send or continue to
send fax communications to Dealer.
15. Dealer further covenants that it shall be bound by each signature on
its behalf on a Contract or related documents submitted to Company in
the ordinary course of business, and Dealer further agrees that Company
shall have no duty to inquire as to the signatory's employment status
or authority to execute the Contract or other documents.
16. Company's failure to exercise any of its rights shall not operate as a
waiver of any such rights, and such rights shall continue until all
Contracts have been paid in full. All of Company's rights, as provided
herein, shall be cumulative and not in the alternative.
17. Company reserves the right to apply the whole or any part of the
Dealer's participation in satisfaction of any delinquent obligation of
Dealer under this Agreement or otherwise. The remedy of Company to
apply money from the participation and/or Dealer Reserve Account is
cumulative with all other remedies and Company may at any time take any
other right or remedy which Company may have against Dealer or
otherwise.
18. This Agreement may be terminated by either party upon giving to the
other party written notice of election to terminate. Notice to Dealer
may be given by Company by depositing said notice in the United States
mail, postage prepaid addressed to Dealer at his last known address as
shown on the records of the Company, and when so deposited the notice
shall be deemed given. No such termination shall affect the rights and
obligations of the parties as to Contracts purchased by Company
pursuant to this Agreement prior to the effective date of such
termination.
19. This Agreement may be executed in duplicate by the parties hereto, each
to have the full force and effect of an original for all purposes. This
Agreement shall inure to the benefit of and bind the parties, their
heirs, personal representatives and successors and assigns. This
Agreement supersedes all prior Dealer agreements between Dealer and
Company. Contracts purchased pursuant to previous Dealer agreements
shall be governed by those agreements with respect to repayment of the
Dealer participation, if applicable.
20. In the event Dealer consists of more than one person, the obligations
of Dealer are joint and several.
21. If a court of competent jurisdiction or an arbitrator holds any
provision of this Agreement to be illegal, unenforceable or invalid,
the validity and enforceability of the remaining provisions will not be
affected.
22. This Agreement shall be governed by the laws of the state of _________.
Except for changes regarding buy rates and the amount or method of
calculating Dealer participation, non-refundable reserve, or reserve,
which changes shall be effective upon notice to Dealer, no modification
of this Agreement shall be valid unless in writing and signed by the
party to be charged.
23. This Agreement is effective on the date shown below.
24. THIS AGREEMENT IS A FINAL EXPRESSION OF THE AGREEMENT BETWEEN DEALER
AND COMPANY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY ALLEGED ORAL
AGREEMENT. BY SIGNING THIS AGREEMENT, DEALER AND COMPANY AFFIRM THAT NO
UNWRITTEN ORAL AGREEMENT EXISTS.
Dated: __________________________ Dated: _______________________________
_________________________________
Dealership (corporate name)
_________________________________ WFS Financial Inc.
DBA (if applicable)
By: _____________________________ By: __________________________________
Signature Signature
_____________________________ __________________________________
Print Name Print Name
Title: __________________________ Title: _______________________________
4 of 4
