TRANSFER AGREEMENT
between
THE AFFILIATES OF THE PURCHASER LISTED AS
SIGNATORIES TO THIS AGREEMENT,
as Originators
and
WELLS FARGO FINANCIAL ACCEPTANCE,
INC.,
as Purchaser
Dated February 24, 2004
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (as from time to
time amended, supplemented or otherwise modified and in effect,
this “Agreement”) is made as of this 24th day of
February, 2004 by and between THE AFFILIATES OF THE PURCHASER
LISTED AS SIGNATORIES TO THIS AGREEMENT (each an
“Originator” and together, the
“Originators”), and WELLS FARGO FINANCIAL ACCEPTANCE,
INC., a Minnesota corporation (in such capacity and for purposes of
this Agreement only, the “Purchaser”).
WHEREAS, in the regular course of its
business, Loans were assigned by dealers to the Originator located
in the state where such dealer was located;
WHEREAS, Purchaser desires to purchase
from the Originators a portfolio of Loans; and
WHEREAS, Originators are willing to sell
such Loans to Purchaser.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS. Capitalized terms used
but not defined herein are used in this Agreement as defined in
Appendix X to the Sale and Servicing Agreement among Wells Fargo
Financial Auto Owner Trust 2004-A, as issuer, ACE Securities Corp.,
as seller, Wells Fargo Financial, Inc., as Master Servicer, and
JPMorgan Chase Bank, as Indenture Trustee as the same may be
amended and supplemented from time to time.
SECTION 1.1.
OTHER INTERPRETIVE PROVISIONS. For
purposes of this Agreement, unless the context otherwise requires:
(a) accounting terms not otherwise defined in this Agreement,
and accounting terms partly defined in this Agreement to the extent
not defined, shall have the respective meanings given to them under
GAAP; (b) terms defined in Article 9 of the UCC and not otherwise
defined in this Agreement are used as defined in that Article; (c)
the words “hereof,” “herein” and
“hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular provision of this
Agreement; (d) references to any Article, Section, Schedule or
Exhibit are references to Articles, Sections, Schedules and
Exhibits in or to this Agreement and references to any paragraph,
subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (e) the term
“including” means “including without
limitation”; (f) except as otherwise expressly provided
herein, references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor
law or regulation; (g) references to any Person include that
Person’s successors and assigns; and (h) headings are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1.
PURCHASE AND SALE OF
RECEIVABLES.
Effective as of the Closing Date and
immediately prior to the transactions pursuant to the Indenture,
the Sale Agreement, the Purchase Agreement, the Sale and Servicing
Agreement and the Trust Agreement, Originators do hereby sell,
transfer, assign, set over and otherwise convey to Purchaser,
without recourse (subject to the obligations herein) the following
(the “Originators Assets”):
(a)
all right, title and interest of
Originators in and to the Receivables, and all monies received
thereon after the Cutoff Date;
(b)
all right, title and interest of
Originators in the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other
interest of Originators in the Financed Vehicles and any other
property that shall secure the Receivables;
(c)
the interest of Originators in any
proceeds with respect to the Receivables from claims on any
Insurance Policies covering Financed Vehicles or the Obligors or
from claims under any lender’s single interest insurance
policy naming Transferor as an insured;
(d)
the interest of Originators in any
proceeds from (i) any Receivable repurchased by a Dealer pursuant
to a Dealer Agreement as a result of a breach of representation or
warranty in the related Dealer Agreement, (ii) a default by an
Obligor resulting in the repossession of the Financed Vehicle under
the applicable Loans or (iii) any Dealer Recourse or other rights
relating to the Receivables under Dealer Agreements;
(e)
all right, title and interest of
Originators in any instrument or document relating to the
Receivables; and
(f)
the proceeds of any and all of the
foregoing.
The sale, transfer, assignment, setting
over and conveyance made hereunder shall not constitute and is not
intended to result in an assumption by Purchaser of any obligation
of Originators to the Obligors, the Dealers or any other Person in
connection with the Receivables and the other assets and properties
conveyed hereunder or any agreement, document or instrument related
thereto.
It is the express intention of
Originators and Purchaser that (a) the assignment and transfer
herein contemplated constitute a sale of the Receivables and the
other Originators Assets described above, conveying good title
thereto free and clear of any liens, encumbrances, security
interests or rights of other Persons, from Originators to Purchaser
and (b) the Receivables and the other Originators Assets described
above not be a part of any Originator’s estate in the event
of any Originator’s bankruptcy or insolvency. If,
notwithstanding the intention of Originators and Purchaser, such
conveyance is deemed to be a pledge in connection with a financing
or is otherwise deemed not to be a sale, Originators hereby grant,
and the parties intend that Originators shall have granted to the
Purchaser, a first priority perfected security interest in all of
Originators’ right, title and interest in the items of the
Originators Assets and all proceeds of the foregoing, and that this
Agreement shall constitute a security agreement under applicable
law and the Purchaser shall have all of the rights and remedies of
a secured party and creditor under the UCC as in force in the
relevant jurisdictions.
SECTION 2.2.
ORIGINATORS PURCHASE PRICE. In
consideration for the Originators Assets, Purchaser shall, on the
Closing Date, pay to each Originator its applicable Originators
Purchase Price. The “Originators Purchase Price”
shall be paid in cash to each Originator and shall be in the amount
listed by each Originator’s name on Exhibit A attached
hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1.
REPRESENTATIONS AND WARRANTIES OF
PURCHASER. Purchaser hereby makes the following
representations and warranties upon which Originators may rely.
Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Receivables to Purchaser.
(a)
Organization and Good Standing.
Purchaser has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Minnesota and has the power and authority to execute and deliver
this Agreement and to perform the terms and provisions
hereof.
(b)
Power and Authority. Purchaser has
the corporate power, authority and legal right to execute, deliver
and perform this Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Agreement.
(c)
No Consent Required. No approval,
authorization, consent, license or other order or action of, or
filing or registration with, any governmental authority, bureau or
agency is required in connection with the execution, delivery or
performance by Purchaser of this Agreement or the consummation of
the transactions contemplated hereby.
(d)
Binding Obligation. This Agreement
has been duly executed and delivered by Purchaser and this
Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against the Originators in accordance with
its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting the enforcement of the
rights of creditors generally and to equitable limitations on the
availability of specific remedies.
(e)
No Violation. The execution,
delivery and performance by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby will not
conflict with, result in any breach of the material terms and
provisions of, constitute (with or without notice or lapse of time)
a material default under or result in the creation or imposition of
any Lien under any of its material properties pursuant to the terms
of, (i) the charter or bylaws of Purchaser, (ii) any material
indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which Purchaser is a party or by which
Purchaser is bound or to which any of its properties are subject,
or (iii) any law, order, rule or regulation applicable to Purchaser
of any federal or state regulatory body, any court, administrative
agency, or other governmental instrumentality having jurisdiction
over Purchaser.
(f)
No Proceedings. There are no
proceedings or investigations pending, or, to the knowledge of
Purchaser, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over Purchaser or its
properties: (i) asserting the invalidity of this Agreement or the
transactions contemplated herein, (ii) seeking to prevent the
consummation of any of the transactions by this Agreement, (iii)
seeking any determination or ruling that might materially and
adversely affect the performance by Purchaser of its obligations
under, or the validity or enforceability of, this Agreement or the
transactions contemplated herein, or (iv) that may materially and
adversely affect this Agreement or the transactions contemplated
hereby.
SECTION 3.2.
REPRESENTATIONS AND WARRANTIES OF
ORIGINATORS. Each of the Originators hereby makes the
following representations and warranties upon which Purchaser may
rely. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Receivables to Purchaser.
(a)
Organization and Good Standing.
Each of the Originators has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the state of its incorporation and has full corporate power and
authority to execute and legal right to own its properties and
conduct its motor vehicle retail installment sale contract business
as such properties are at present owned and such business is at
present conducted and had at all relevant times, and has, the
power, authority and legal right to acquire, own and sell the
Originators Assets pursuant to the terms of this
Agreement.
(b)
Due Qualification. Each of the
Originators is duly qualified to do business as a foreign
corporation and is in good standing, and has 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 and in which the failure to do so would
materially and adversely affect the Purchaser’s performance
of its obligations under, the validity or enforceability of, this
Agreement or the Originators Assets.
(c)
Power and Authority. Each of the
Originators has the power, authority and legal right to execute and
deliver this Agreement and to carry out its terms and to sell and
assign the Originators Assets; and the execution, delivery and
performance of this Agreement has been duly authorized by each of
the Originators by all necessary corporate action.
(d)
No Consent Required. No approval,
authorization, consent, license or other order or action of, or
filing or registration with, any governmental authority, bureau or
agency is required in connection with the execution, delivery or
performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby, other than the filing
of UCC financing statements.
(e)
Valid Sale; Binding Obligation.
Each of the Originators intends this Agreement to effect a
valid sale, transfer, and assignment of the Receivables and the
other properties and rights included in the Originators Assets
conveyed by Originators to Purchaser hereunder, enforceable against
creditors of and purchasers from Originators; and this Agreement
constitutes a legal, valid and binding obligation of Originators,
enforceable against Originators in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the
rights of creditors generally and to equitable limitations on the
availability of specific remedies.
(f)
No Violation. The execution,
delivery and performance by each of Originators of this Agreement
and the consummation of the transactions contemplated hereby will
not conflict with, re
