EXHIBIT 10.5
AMENDED AND RESTATED WFS REINVESTMENT CONTRACT
This AMENDED AND RESTATED WFS REINVESTMENT CONTRACT (the "AGREEMENT"),
dated as of January 1, 2004 (the "EFFECTIVE DATE"), is among Western Financial
Bank, a federal savings bank (the "BANK"), and WFS Financial Inc, a California
corporation ("WFS"), and supersedes and replaces in its entirety the Master
Reinvestment Contract, dated as of May 1, 1998, by and between the Bank and WFS,
with reference to the following:
A. The Bank receives funds under certain reinvestment contracts established in
connection with securitization transactions of automobile installment sale
contracts by WFS or its affiliates prior to and after the Effective Date. The
"REINVESTMENT CONTRACTS" are identified in the trust agreements under which
owner trusts are created with respect to such securitization transactions.
B. Pursuant to the Reinvestment Contracts, the Bank is permitted to invest the
funds it receives under the Reinvestment Contracts with WFS on the terms and
provisions of this Agreement.
C. WFS is willing, on the terms and provisions set forth in this Agreement, to
accept the funds credited from time to time by the Bank under the Reinvestment
Contracts.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained in this Agreement, the parties agree as follows:
1. INVESTMENT OF FUNDS. The Bank shall provide WFS with certain funds it
receives under the Reinvestment Contracts. Such amounts delivered by the Bank to
WFS from time to time pursuant to this Agreement shall collectively be referred
to as the "FUNDS." WFS shall accept the Funds from the Bank. WFS shall invest
the Funds in investments selected by WFS in its sole discretion, including
without limitation the use of such Funds in WFS' operations. WFS shall not be
obligated to segregate the Funds.
2. REMITTANCES. The Bank may, on one day's prior notice, demand and receive
payment of all or any portion of the Funds. Notwithstanding the preceding
sentence, on or before each date on which the Bank requires payment by WFS of
Funds in order to fulfill the Bank's obligations under a Reinvestment Contract,
the Bank shall notify WFS of each such amount of Funds to be deposited or
remitted to the Bank or its designee, the date on which such payment is due, and
the manner of payment, and WFS shall cause such amount to be deposited or
remitted as requested by the Bank. All remittances by WFS to the Bank shall be
made by credit or payment of immediately available funds, as directed by the
Bank.
3. FEE. WFS shall pay to the Bank an annual fee in an amount equal to fifty-five
one hundredths of one percent (.55%) per annum of the monthly amount of
collateral required to be pledged by the Bank pursuant to the Fourth Amended and
Restated Master Collateral Assignment Agreement dated as of February 1, 2003,
which amends and restates the Master Collateral Assignment Agreement dated as of
September 30, 1993, as amended and restated as of June 1, 1995, as amended and
restated as of November 1, 1998, as amended and restated as of March 1, 2000 by
and among the Bank, WFS Financial Auto Loans, Inc., WFS Funding, Inc., WFS
Receivables Corporation, WFS Receivables Corporation 2, WFS Financial Auto Loans
2, Inc., Financial Security Assurance Inc., Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), and Deutsche Bank Trust Company of
California, N.A. (formerly known as Bankers Trust Company of California, N.A.)
(collectively, and as amended from time to time, the "MASTER COLLATERAL
ASSIGNMENT AGREEMENT").
4. TERM; TERMINATION. This Agreement shall commence as of the Effective Date and
shall continue in full force and effect, so long as any Reinvestment Contract
constitutes an "Eligible Investment," as defined in a Sale and Servicing
Agreement (or similar agreement)
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identified in the applicable Reinvestment Contract. If all or any of the
Reinvestment Contracts no longer constitute an Eligible Investment, then WFS
shall pay to the Bank, or as otherwise directed by the Bank, an amount equal to
the Funds applicable for each such Reinvestment Contract, as determined by the
Bank. Either party may terminate this Agreement at any time, with or without
cause, upon thirty (30) days' prior notice to the other party. Notwithstanding
the foregoing, if the Bank determines at any time that WFS is in an unsafe or
unsound condition or is failing to comply with any material obligation under
this Agreement or any other agreement between the Bank and WFS, then WFS may
immediately terminate this Agreement. Upon termination of this Agreement, all
Funds not previously withdrawn by the Bank, together with all accrued and unpaid
fees due under Section 3 of this Agreement, shall be paid to the Bank.
5. FURNISHING OF CONTRACTS. The Bank shall promptly delivery to WFS a copy of
each Reinvestment Contract and the Master Collateral Assignment Agreement, as
such contracts are or become available.
6. REPRESENTATIONS. WFS and the Bank each represent and warrant to the other
that:
6.1. it has the power to enter into this Agreement and to consummate the
transactions contemplated hereby;
6.2. this Agreement has been duly authorized, executed, and delivered by
it and, assuming the due authorization, execution, and delivery of this
Agreement by the other party, constitutes a legal, valid, and binding obligation
of it, enforceable against it in accordance with the terms of this Agreement,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally or by general principles of equity; and
6.3. the execution and delivery of this Agreement will not violate any
federal, state or other law or any order, decree, license, permit or the like
that is applicable to it or cause any default by it under any agreement to which
it is a party or by which it is bound.
7. REPAYMENT OBLIGATIONS. The obligation of WFS to repay the Funds, together
with all fees required under Section 3 of this Agreement, constitutes an
unconditional obligation of WFS with no right of recoupment, counterclaim,
subrogation or set-off by WFS with respect to amounts owing by the Bank to WFS.
8. GENERAL.
8.1. ASSIGNMENT. Neither party may assign or transfer this Agreement, or
any rights or obligations under this Agreement, without the prior written
consent of the other party. This Agreement will bind and inure to the benefit of
the parties and their respective successors and permitted assigns.
8.2. NOTICES. Any notice or other communication required or permitted
under this Agreement shall be sufficiently given if delivered in person or sent
by facsimile or by registered or certified mail, postage prepaid, addressed as
shown on the signature page of this Agreement, with a copy to WFS' counsel, WFS
Financial Inc, 00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000, facsimile: (000) 000-0000,
attention: Legal Department, or such other address or number as shall be
furnished in writing by any such party. Such notice or communication shall be
deemed to have been given as of the date so delivered, sent by facsimile or
mailed.
8.3. WAIVER; MODIFICATIONS. No waiver by either party of any breach by the
other party of any of the provisions of this Agreement shall be deemed a waiver
of any preceding or succeeding breach of the same or any other provision hereof.
No such waiver shall be effective unless in writing and then only to the extent
expressly set forth in writing. No modifications of this Agreement shall be
effective unless in writing and signed by both parties.
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8.4. SEVERABILITY. If any one or more of the provisions of this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The parties shall negotiate in good faith to
replace any invalid, illegal or unenforceable provision with a valid provision
that, to the extent possible, will preserve the economic effect of the invalid,
illegal or unenforceable provisions.
8.5. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of WFS and the Bank and is not intended to confer any rights or remedies
upon any other person.
8.6. GOVERNING LAW. The Agreement shall be governed by and construed in
accordance with the laws of the State of California.
8.7. INTERPRETATION; EXECUTION. This Agreement constitutes the entire
agreement between the parties and supercedes any prior understanding or
agreement, oral or written, relating to the subject matter of this Agreement.
This Agreement shall not be construed as if it had been prepared by either
party, but rather as if it were jointly prepared. In the event that any action
required by the parties hereto does not occur on a business day, the action
shall be taken on the next succeeding business day thereafter. This Agreement
may be executed in one or more counterparts, each of which shall be an original
and all of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amended and Restated WFS
Reinvestment Contract to be duly executed by their authorized offers as of the
Effective Date.
WESTERN FINANCIAL BANK WFS FINANCIAL INC
By: ___________________________________ By: _____________________________
Xxxx Xxxxx J. Xxxxx Xxxxxx
Senior Vice President and Controller Senior Vice President and
Treasurer
Address: 23 Pasteur Address: 00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000
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