WACHOVIA DEALER SERVICES, INC., as Seller, and WDS RECEIVABLES LLC, as Purchaser
Exhibit 99.3
EXECUTION
VERSION
WACHOVIA
DEALER SERVICES, INC.,
as
Seller,
and
WDS
RECEIVABLES LLC,
as
Purchaser
TABLE OF
CONTENTS
Page
ARTICLE
ONE
DEFINITIONS
|
Section
1.01. Definitions
|
1
|
|
Section
1.02. Other Definitional Provisions.
|
4
|
ARTICLE
TWO
CONVEYANCE OF RECEIVABLES
|
Section
2.01. Sale and Conveyance of Receivables
|
5
|
|
Section
2.02. Receivables Purchase Price; Payments on the
Receivables.
|
6
|
|
Section
2.03. Transfer of Receivables
|
6
|
|
Section
2.04. Examination of Receivable Files
|
7
|
ARTICLE
THREE
REPRESENTATIONS
AND WARRANTIES
|
Section
3.01. Representations and Warranties of the
Purchaser
|
8
|
|
Section
3.02. Representations and Warranties of the
Seller
|
9
|
|
Section
3.03. Representations and Warranties as to the
Receivables.
|
10
|
ARTICLE
FOUR
CONDITIONS
|
Section
4.01. Conditions to Obligation of the Purchaser
|
12
|
|
Section
4.02. Conditions to Obligation of the Seller
|
12
|
ARTICLE
FIVE
COVENANTS
OF THE SELLER
|
Section
5.01. Protection of Right, Title and Interest in, to and Under
the Receivables.
|
13
|
|
Section
5.02. Security Interests
|
14
|
|
Section
5.03. Delivery of Payments
|
14
|
|
Section
5.04. No Impairment
|
14
|
|
Section
5.05. Costs and Expenses
|
15
|
|
Section
5.06. Sale
|
15
|
|
Section
5.07. Hold Harmless
|
15
|
i
Page
ARTICLE
SIX
MISCELLANEOUS
PROVISIONS
|
Section
6.01. Amendment.
|
16
|
|
Section
6.02. Termination
|
16
|
|
Section
6.03. GOVERNING LAW
|
16
|
|
Section
6.04. Notices
|
16
|
|
Section
6.05. Severability of Provisions
|
16
|
|
Section
6.06. Further Assurances
|
17
|
|
Section
6.07. No Waiver; Cumulative Remedies
|
17
|
|
Section
6.08. Counterparts
|
17
|
|
Section
6.09. Third-Party Beneficiaries
|
17
|
|
Section
6.10. Headings
|
17
|
|
Section
6.11. Representations, Warranties and Agreements to
Survive
|
17
|
|
Section
6.12. No Proceedings
|
17
|
SCHEDULES
|
Schedule A
– Schedule of Receivables
|
SA-1
|
|
Schedule B
– Location of Receivable Files
|
SB-1
|
EXHIBITS
|
Exhibit A
– Representations and Warranties as to the Receivables
|
A-1
|
|
Exhibit B
– Form of First-Tier Assignment
|
B-1
|
ii
This
Receivables Purchase Agreement, dated as of June 1, 2008, is between Wachovia
Dealer Services, Inc., a California corporation (“Wachovia Dealer Services”), as
seller (the “Seller”), and WDS Receivables LLC, a Nevada
limited liability company (“WDS Receivables”), as purchaser (in such capacity,
the “Purchaser”).
WHEREAS,
in the regular course of its business, the Seller purchases and originates motor
vehicle retail installment sale contracts and installment loans secured by new
and used motor vehicles (the “Receivables”);
WHEREAS,
the Seller intends to convey all of its right, title and interest in and to
certain Receivables to the Purchaser on the Closing Date, and the Purchaser
shall convey all of its right, title and interest in and to the Receivables to
Wachovia Auto Owner Trust 2008-A (the “Issuer”) pursuant to the sale and
servicing agreement, dated as of June 1, 2008, among the Issuer, WDS
Receivables, Wachovia Dealer Services and Wachovia Bank, National Association
(“Wachovia Bank”); and
WHEREAS,
the Seller and the Purchaser wish to set forth the terms pursuant to which the
Receivables are to be sold by the Seller to the Purchaser.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
ONE
DEFINITIONS
Section
1.01. Definitions. Whenever
used in this Agreement, the following words and phrases shall have the following
meanings:
“Agreement” means this
Receivables Purchase Agreement.
“Basic Documents” has
the meaning specified in the Sale and Servicing Agreement.
“Business Day” has the
meaning specified in the Sale and Servicing Agreement.
“Certificate” has the
meaning specified in the Trust Agreement.
“Closing Date” has the
meaning specified in the Indenture.
“Collection Period”
has the meaning specified in the Indenture.
“Controlling Class”
has the meaning specified in the Indenture.
“Cutoff Date” has the
meaning specified in the Sale and Servicing Agreement.
“Dealer Recourse” has
the meaning specified in the Sale and Servicing Agreement.
“Deposit Date” has the
meaning specified in Sale and Servicing Agreement.
“Depositor” has the
meaning specified in the Trust Agreement.
“Financed Vehicle” has
the meaning specified in the Sale and Servicing Agreement.
“First-Tier
Assignment” means the First-Tier Assignment, in substantially the form of
Exhibit B hereto.
“Holder” has the
meaning specified in the Indenture.
“Indenture” means the
indenture, dated as of June 1, 2008, between the Issuer and the Indenture
Trustee.
“Indenture Trustee”
has the meaning specified in the Indenture.
“Issuer” has the
meaning specified in the recitals.
“Lien” has the meaning
specified in the Sale and Servicing Agreement.
“Master Servicer” has
the meaning specified in the Sale and Servicing Agreement.
“Net Liquidation
Proceeds” has the meaning specified in the Sale and Servicing
Agreement.
“Note Balance” has the
meaning specified in the Indenture.
“Noteholders” has the
meaning specified in the Indenture.
“Notes” has the
meaning specified in the Indenture.
“Obligor” has the
meaning specified in the Sale and Servicing Agreement.
“Officer’s
Certificate” has the meaning specified in the Sale and Servicing
Agreement
“Opinion of Counsel”
has the meaning specified in Sale and Servicing Agreement.
“Outstanding” has the
meaning specified in the Indenture.
“Owner Trustee” has
the meaning specified in the Trust Agreement.
“Principal Balance”
has the meaning specified in the Sale and Servicing Agreement.
“Purchase Amount” has
the meaning specified in Sale and Servicing Agreement.
“Purchaser” means WDS
Receivables, in its capacity as purchaser of the Receivables under this
Agreement, and its successors in such capacity.
2
“Receivable Files” has
the meaning specified in the Sale and Servicing Agreement.
“Receivables Purchase
Price” means $1,108,862,550.01.
“Recoveries” has the
meaning specified in the Sale and Servicing Agreement.
“Reserve Fund” has the
meaning specified in the Sale and Servicing Agreement.
“Reserve Fund Deposit”
has the meaning specified in Sale and Servicing Agreement.
“Sale and Servicing
Agreement” means the sale and servicing agreement, dated as of June 1,
2008, among the Issuer, the Depositor, the Seller and the Master
Servicer.
“Schedule of
Receivables” means the schedule of Receivables attached as
Schedule A.
“Securities” means the
Notes and the Certificates.
“Seller” means
Wachovia Dealer Services, in its capacity as seller of the Receivables under
this Agreement, and its successors in such capacity.
“State” has the
meaning specified in the Indenture.
“Swap Agreement” has
the meaning specified in the Indenture.
“Swap Counterparty”
has the meaning specified in the Indenture.
“Trust Agreement”
means the amended and restated trust agreement, dated as of June 1, 2008,
between the Depositor and the Owner Trustee.
“Trustee” means either
the Owner Trustee or the Indenture Trustee, as the context
requires.
“UCC” has the meaning
specified in the Indenture.
“United States” has
the meaning specified in the Indenture.
“Wachovia Bank” has
the meaning specified in the recitals.
“Wachovia Dealer
Services” has the meaning specified in the preamble.
“WDS Receivables” has
the meaning specified in the preamble.
3
Section
1.02. Other Definitional
Provisions.
(a) Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Indenture or the Sale and Servicing Agreement, as the
case may be.
(b) With
respect to all terms in this Agreement, unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time to time in the United
States; (iii) “or” is not exclusive; (iv) “including” means including
without limitation; (v) words in the singular include the plural and words
in the plural include the singular; (vi) any agreement, document,
instrument or statute defined or referred to herein or in any instrument or
certificate delivered in connection herewith means such agreement, document,
instrument or statute as from time to time amended, modified or supplemented and
includes (in the case of agreements, documents or instruments) references to all
attachments thereto and instruments incorporated therein; (vii) references
to a Person are also to its successors and permitted assigns; (viii) the
words “hereof”, “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; (ix) Section, subsection, Schedule
and Exhibit references contained in this Agreement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; (x) references to “writing” include printing, typing,
lithography and other means of reproducing words in a visible form; and
(xi) the term “proceeds” has the meaning set forth in the applicable
UCC.
4
ARTICLE
TWO
CONVEYANCE
OF RECEIVABLES
Section
2.01. Sale and Conveyance of
Receivables. On
the Closing Date, subject to the terms and conditions of this Agreement, the
Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Seller, the Receivables set forth in the Schedule of Receivables, and
the other property relating thereto (as described below).
(a) Subject
to satisfaction of the conditions set forth in Section 4.01(a), on the
Closing Date, and simultaneously with the transactions to be consummated
pursuant to the Indenture, the Sale and Servicing Agreement, the Trust Agreement
and the Swap Agreement, the Seller shall, pursuant to the First-Tier Assignment,
sell, transfer, assign and otherwise convey to the Purchaser, and the Purchaser
shall purchase from the Seller, without recourse (subject to the Seller’s
obligations hereunder), all of the right, title and interest of the Seller in,
to and under, whether now owned or existing or hereafter acquired or arising,
in, to and under the following:
(i) the
Receivables and all amounts due and collected on or in respect of the
Receivables (including proceeds of the repurchase of Receivables by the Seller
pursuant to Section 3.03(c)) after the Cutoff Date;
(ii) the
security interests in the Financed Vehicles granted by the Obligors pursuant to
the Receivables and any other interest of the Seller in such Financed
Vehicles;
(iii) all
proceeds from claims on and refunds of premiums of any physical damage or theft
insurance policies and extended warranties covering the Financed Vehicles and
any proceeds or refunds of premiums of any credit life or credit disability
insurance policies relating to the Receivables, the related Financed Vehicles or
the related Obligors;
(iv) the
Receivable Files that relate to the Receivables;
(v) any
proceeds of Dealer Recourse that relate to the Receivables;
(vi) the right
to realize upon any property (including the right to receive future Net
Liquidation Proceeds and Recoveries) that shall have secured a Receivable and
have been repossessed by or on behalf of the Seller; and
(vii) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing, and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all accounts, accounts
receivable, general intangibles, chattel paper, documents, money, investment
property, deposit accounts, letters of credit, letter of credit rights,
insurance proceeds, condemnation awards, notes, drafts, acceptances, rights to
payment of any and every kind and other forms of obligations and receivables,
5
instruments
and other property which at any time constitute all or part of or are included
in the proceeds of any of the foregoing.
(b) In
connection with the foregoing conveyance, the Seller further agrees, at its own
expense, on or prior to the Closing Date to (i) annotate and indicate in
its books, records and computer files that the Receivables have been sold and
transferred to the Purchaser pursuant to this Agreement, (ii) deliver to
the Purchaser a computer file or printed or microfiche list of the Schedule of
Receivables containing a true and complete list of the related Receivables,
identified by account number and by the Principal Balance as of the Cutoff Date,
which file or list shall be marked as Schedule A and is hereby incorporated
into and made a part of this Agreement and (iii) deliver or cause to be
delivered the Receivable Files to or upon the order of the
Purchaser.
(c) The
parties hereto intend that the conveyance of Receivables and related property
hereunder be a sale and not a loan. In the event that the conveyance
hereunder is for any reason not considered a sale, including in the event of an
insolvency proceeding with respect to the Seller or any of the Seller’s
properties, the Seller hereby grants to the Purchaser a first priority security
interest in all of the Seller’s right, title and interest in, to and under the
Receivables, and all other property conveyed hereunder and all proceeds of the
foregoing. The parties intend that this Agreement constitute a
security agreement under applicable law. Such grant is made to secure
the payment of all amounts payable hereunder, including the Receivables Purchase
Price. If such conveyance is for any reason considered to be a loan
and not a sale, the Seller consents to the Purchaser transferring such security
interest in favor of the Indenture Trustee and transferring the obligation
secured thereby to the Indenture Trustee.
Section
2.02. Receivables Purchase
Price; Payments
on the Receivables.
(a) On the
Closing Date, in exchange for the Receivables and other assets described in
Section 2.01(a), the Purchaser shall pay the Seller the Receivables
Purchase Price in immediately available funds. The Purchaser, as set
forth in the Sale and Servicing Agreement, shall deposit, from funds it receives
from the sale of the Class A Notes, the Reserve Fund Deposit into the Reserve
Fund, which amount shall be an asset of the Issuer. WDS Receivables
shall receive, and shall be the holder of, the Class B Notes and the
Certificates.
(b) The
Purchaser shall be entitled to, and shall convey such right to the Issuer
pursuant to the Sale and Servicing Agreement, all amounts due and collected on
or in respect of the Receivables received after the Cutoff Date.
Section
2.03. Transfer of Receivables. Pursuant
to the Sale and Servicing Agreement, the Purchaser will assign all of its right,
title and interest in, to and under the Receivables and other assets described
in Section 2.01(a) to the Issuer. The parties hereto acknowledge
that the Issuer will pledge its rights in, to and under the Receivables and
other assets described in Section 2.01(a) to the Indenture Trustee pursuant
to the Indenture. The Purchaser shall have the right to assign its
interest under this Agreement as may be required to effect the purposes of the
Sale and Servicing Agreement, without the consent of the Seller, and the Issuer
as assignee shall succeed to the rights hereunder of the Purchaser.
6
Section
2.04. Examination of Receivable
Files. The Seller will make the Receivable Files available to
the Purchaser or its agent for examination at the Seller’s offices or such other
location as otherwise shall be agreed upon by the Purchaser and the
Seller.
7
ARTICLE
THREE
REPRESENTATIONS
AND WARRANTIES
Section
3.01. Representations and
Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date of this
Agreement and the Closing Date that:
(a) Organization and Good
Standing. The Purchaser has been duly organized and is validly
existing as a limited liability company in good standing under the laws of the
State of Nevada, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, power, authority
and legal right to acquire, own and purchase the Receivables.
(b) Due
Qualification. The Purchaser is duly qualified to do business
as a foreign limited liability company in good standing and has obtained all
necessary licenses and approvals in each jurisdiction in which the failure to so
qualify or to obtain such licenses and approvals would, in the reasonable
judgment of the Purchaser, materially and adversely affect the performance by
the Purchaser of its obligations under, or the validity or enforceability of,
this Agreement.
(c) Power and
Authority. The Purchaser has the power and authority to
execute and deliver, and perform its obligations under, this Agreement and each
other Basic Document to which it is a party. The Purchaser has full
power and authority to sell, transfer, assign and otherwise convey the property
listed in Section 2.01(a) that it is acquiring from the Seller and shall
sell and assign to and deposit with the Issuer such property and shall duly
authorize such sale and assignment by all necessary limited liability company
action; and the execution, delivery and performance of this Agreement and each
other Basic Document to which the Purchaser is a party has been duly authorized
by the Purchaser by all necessary limited liability company action.
(d) No
Violation. The execution, delivery and performance by the
Purchaser of this Agreement and of the purchase of the Receivables and the
consummation of the transactions contemplated hereby and by each other Basic
Document to which it is a party and the fulfillment of the terms hereof and
thereof will not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time or both)
a default under, the certificate of formation or limited liability company
agreement of the Purchaser, nor conflict with or violate any of the material
terms or provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any indenture, agreement or other instrument to which
the Purchaser is a party or by which it shall be 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 Liens
created by this Agreement and the other Basic Documents); nor violate any law
or, to the Purchaser’s knowledge, any order, rule or regulation applicable to
the Purchaser of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties, which breach, default, conflict, Lien or
violation would have a material adverse effect on the earnings, business affairs
or business prospects of the Purchaser or on the ability of the Purchaser to
perform its obligations under this Agreement.
8
(e) No
Proceedings. There are no proceedings or investigations
pending, or to the Purchaser’s knowledge, threatened against the Purchaser,
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its properties:
(i) asserting the invalidity of this Agreement or any other Basic Document
to which it is a party, (ii) seeking to prevent the issuance and delivery
of the Securities, the sale of the Notes or the consummation of any of the
transactions contemplated by this Agreement or any other Basic Document to which
the Purchaser is a party or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity or enforceability of, this Agreement or any
other Basic Document to which it is a party.
(f) Principal Executive
Office. The chief executive office of the Purchaser is at 000
Xxxx Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000.
Section
3.02. Representations and
Warranties of the Seller. The
Seller hereby represents and warrants to the Purchaser as of the date of this
Agreement and the Closing Date, that:
(a) Organization and Good
Standing. The Seller has been duly organized and is validly
existing as a corporation under the laws of the State of California, and has the
power to own its assets and to transact the business in which it is currently
engaged. The Seller is duly authorized to transact business and has
obtained all necessary licenses and approvals, and is in good standing in each
jurisdiction in which the character of the business transacted by it or any
properties owned or leased by it requires such authorization.
(b) Power and
Authority. The Seller has the power and authority to execute
and deliver and perform its obligations under this Agreement and each other
Basic Document to which the Seller is a party, and the execution, delivery and
performance of this Agreement and each other Basic Document to which the Seller
is a party has been duly authorized by the Seller. When executed and
delivered, this Agreement and the other Basic Documents to which the Seller is a
party will constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except that such
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer and other similar laws
relating to or affecting creditors generally, and to general equitable
principles (regardless of whether considered in a proceeding in equity or at
law), including concepts of commercial reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief.
(c) No
Violation. The execution, delivery and performance by the
Seller of this Agreement and the sale of the Receivables, the consummation of
the transactions contemplated hereby and by each other Basic Document to which
it is a party and the fulfillment of the terms hereof and thereof will not
conflict with, result in a breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
its articles of incorporation or bylaws, nor conflict with or violate any of the
material terms or provisions of, or constitute (with or without notice or lapse
of time or both) a default under, any indenture, agreement or other instrument
to which it is a party or by which it shall be 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 this Agreement);
nor violate any law
9
or, to
its knowledge, any order, rule or regulation applicable to it of any court or of
any federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or its properties,
which breach, default, conflict, Lien or violation would have a material adverse
effect on the Seller’s earnings, business affairs or business prospects or on
the ability of the Seller to perform its obligations under this
Agreement.
(d) No
Proceedings. There are no proceedings or investigations
pending or, to the Seller’s knowledge, threatened against the Seller before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties
(i) asserting the invalidity of this Agreement or any other Basic Document
to which the Seller is a party, (ii) seeking to prevent the issuance and
delivery of the Securities, the sale of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any other Basic Document to
which the Seller is a party or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement or any
other Basic Document to which the Seller is a party.
(e) Principal Executive
Office. The chief executive office of the Seller is at 00
Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000.
(f) No
Consents. The Seller is not required to obtain the consent of
any other party or any consent, license, approval, registration, authorization,
or declaration of or with any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
(g) Other
Information. No certificate of an officer, statement or
document furnished in writing or report delivered pursuant to the terms hereof
by the Seller contains any untrue statement of a material fact or omits to state
any material fact necessary to make the certificate, statement, document or
report not misleading.
(h) Solvency. The
sale of the Receivables to the Purchaser is not being made with any intent to
hinder, delay or defraud any of its creditors. The Seller is not
insolvent, nor will the Seller be made insolvent by the transfer of the
Receivables, nor does the Seller anticipate any pending insolvency.
Section
3.03. Representations and
Warranties as to the Receivables.
(a) Eligibility of Receivables. The
Seller makes the representations and warranties set forth in Exhibit A with
respect to the Receivables, on which the Purchaser relies in accepting the
Receivables and in selling, transferring, assigning and otherwise conveying the
Receivables to the Issuer under the Sale and Servicing Agreement and on which
the Issuer relies in pledging the same to the Indenture Trustee pursuant to the
Indenture. Except as otherwise provided, such representations and
warranties speak as of the date of execution and delivery of this Agreement and
the Closing Date, but shall survive the sale, transfer, assignment and
conveyance of the Receivables to the Purchaser, the subsequent sale, transfer
and assignment of the Receivables by
10
the
Purchaser to the Issuer pursuant to the Sale and Servicing Agreement and the
pledge of the Receivables by the Issuer to the Indenture Trustee pursuant to the
Indenture.
(b) Notice of
Breach. The Purchaser, the Seller, the Issuer, the Owner
Trustee or the Indenture Trustee, as the case may be, shall inform the other
parties promptly, in writing, upon discovery of any breach of the Seller’s
representations and warranties pursuant to Section 3.03(a) which materially
and adversely affects the interests of the Noteholders in any
Receivable.
(c) Repurchase of Receivables. In
the event of a breach of any representation or warranty set forth pursuant to
Section 3.03(a) (including by means of a subsequently discovered breach of
any local law or ruling or regulation thereunder) which materially and adversely
affects the interests of the Purchaser, the Issuer or the Noteholders in any
Receivable that shall not have been cured by the close of business on the last
day of the Collection Period which includes the 30th day after the date on which
the Seller becomes aware of, or receives written notice from the Master
Servicer, the Purchaser, the Issuer or any Noteholder of such breach, the Seller
shall repurchase such Receivable from the Issuer as of the close of business on
the last day of such Collection Period, by depositing an amount equal to the
Purchase Amount into the Collection Account on the related Deposit
Date. This repurchase obligation shall apply to all representations
and warranties contained in Section 3.03(a) except as otherwise noted
whether or not the Seller or the Purchaser has knowledge of the breach at the
time of the breach or at the time the representations and warranties were
made. In consideration of the repurchase of any such Receivable the
Seller shall remit an amount equal to the Purchase Amount in respect of such
Receivable to the Issuer in the manner set forth in the Sale and Servicing
Agreement. In the event that, as of the date of execution and
delivery of this Agreement, any Liens or claims shall have been filed, including
Liens for work, labor or materials relating to a Financed Vehicle, that shall be
prior to, or equal or coordinate with, the Lien granted by the related
Receivable (whether or not the Seller has knowledge thereof), which Liens or
claims shall not have been satisfied or otherwise released in full as of the
Closing Date, the Seller shall repurchase such Receivable on the terms and in
the manner specified above. Upon any such repurchase, the Purchaser
shall, without further action, be deemed to transfer, assign, set-over and
otherwise convey to the Seller, without recourse, representation or warranty,
all the right, title and interest of the Purchaser in, to and under such
repurchased Receivable, all other related assets described in
Section 2.01(a) and all monies due or to become due with respect thereto
and all proceeds thereof. The Purchaser, the Issuer, the Owner
Trustee or the Indenture Trustee, as applicable, shall execute such documents
and instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the Seller to effect the conveyance of such
Receivable pursuant to this Section. The sole remedy of the
Purchaser, the Issuer, the Trustees or the Noteholders with respect to a breach
of the Seller’s representations and warranties pursuant to Section 3.03(a)
or with respect to the existence of any such Liens or claims shall be to require
the Seller to repurchase the related Receivables pursuant to this
Section.
11
ARTICLE
FOUR
CONDITIONS
Section
4.01. Conditions to Obligation of
the Purchaser. The
obligation of the Purchaser to purchase the Receivables from the Seller on the
Closing Date is subject to the satisfaction of the following
conditions:
(a) Representations and
Warranties True. The representations and warranties of the
Seller contained herein and in the other Basic Documents shall be true and
correct on the Closing Date with the same effect as if made on the Closing Date,
and each of the Seller and the Master Servicer shall have performed all
obligations to be performed by it hereunder and under the other Basic Documents
on or before the Closing Date.
(b) Computer Files
Marked. The Seller shall, at its own expense, on or before the
Closing Date, indicate in its computer files that the Receivables have been sold
to the Purchaser pursuant to this Agreement and deliver to the Purchaser an
Officer’s Certificate confirming that its computer files have been marked
pursuant to this subsection, and shall deliver to the Purchaser the Schedule of
Receivables, certified by an authorized officer of the Seller to be true,
correct and complete.
(c) Execution of Basic
Documents. The Basic Documents shall have been executed and
delivered by the parties thereto.
(d) First-Tier
Assignment. The Purchaser shall have received the First-Tier
Assignment, dated as of the Closing Date.
(e) Other
Transactions. The transactions contemplated by the Basic
Documents shall be consummated on the Closing Date.
Section
4.02. Conditions to Obligation of
the Seller. The
obligation of the Seller to sell the Receivables to the Purchaser on the Closing
Date is subject to the satisfaction of the following conditions:
(a) Representations and
Warranties True. The representations and warranties of the
Purchaser contained herein and in the other Basic Documents shall be true and
correct on the Closing Date, with the same effect as if then made, and the
Purchaser shall have performed all obligations to be performed by it hereunder
and under the other Basic Documents on or before the Closing Date.
(b) Payment of Receivables Purchase
Price. In consideration of the sale of the Receivables from
the Seller to the Purchaser as provided in Section 2.01, on the Closing
Date the Purchaser shall have paid to the Seller an aggregate amount equal to
the Receivables Purchase Price.
12
ARTICLE
FIVE
COVENANTS
OF THE SELLER
Section
5.01. Protection of Right, Title
and Interest in, to and Under the Receivables.
(a) The
Seller, at its expense, shall cause this Agreement and all financing statements
and continuation statements and any other necessary documents covering the
Purchaser’s right, title and interest in, to and under the Receivables and other
property conveyed by the Seller to the Purchaser hereunder to be promptly
authorized, recorded, registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest of
the Purchaser hereunder to the Receivables and such other
property. The Seller shall deliver to the Purchaser file-stamped
copies of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. The Purchaser shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this
subsection.
(b) Within 30
days after the Seller makes any change in its name, identity or organizational
structure which would make any financing statement or continuation statement
filed in accordance with this Agreement seriously misleading within the meaning
of the UCC as in effect in the applicable State, the Seller shall give the
Purchaser notice of any such change and within 30 days after such change shall
authorize, execute and file such financing statements or amendments as may be
necessary to continue the perfection of the Purchaser’s security interest in the
Receivables and the proceeds thereof.
(c) The
Seller shall give the Purchaser written notice within 60 days of any relocation
of any office from which the Seller keeps records concerning the Receivables or
of its principal executive office or its jurisdiction of organization and
whether, 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 within 60 days
after such relocation shall authorize, execute and file such financing
statements or amendments as may be necessary to continue the perfection of the
interest of the Purchaser in the Receivables and the proceeds
thereof. The Seller shall at all times maintain its jurisdiction of
organization, its principal place of business, its chief executive office and
the location of the office where the Receivable Files and any accounts and
records relating to the Receivables are kept within the United
States.
(d) The
Seller shall maintain accounts and records as to each Receivable accurately and
in sufficient detail to permit (i) the reader thereof to know at any time
the status of such Receivable, including payments and recoveries made and
payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable.
(e) The
Seller shall maintain its computer systems so that, from and after the time of
the transfer of the Receivables to the Purchaser pursuant to this Agreement, the
Seller’s master computer records (including any back-up archives) that refer to
a Receivable shall indicate
13
clearly
and unambiguously that such Receivable is owned by the Purchaser (or, upon
transfer of the Receivables to the Issuer, by the Issuer). Indication
of the Purchaser’s ownership of a Receivable shall be deleted from or modified
on the Seller’s computer systems when, and only when, such Receivable shall have
been paid in full or repurchased by the Seller.
(f) If at any
time the Seller shall propose to sell, grant a security interest in or otherwise
transfer any interest in any motor vehicle retail installment sale contract to
any prospective purchaser, lender or other transferee, the Seller shall give to
such prospective purchaser, lender or other transferee computer tapes, compact
disks, records or print-outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Receivable, shall
indicate clearly and unambiguously that such Receivable has been sold and is
owned by the Purchaser (or, upon transfer of the Receivables to the Issuer, by
the Issuer), unless such Receivable has been paid in full or repurchased by the
Seller.
(g) The
Seller shall permit the Purchaser and its agents at any time during normal
business hours to inspect, audit and make copies of and abstracts from the
Seller’s records regarding any Receivable, upon reasonable prior
notice.
(h) If the
Seller has repurchased one or more Receivables from the Purchaser or the Issuer
pursuant to Section 3.03(c), the Seller shall, upon request, furnish to the
Purchaser, within ten Business Days, a list of all Receivables (by Receivable
number and name of Obligor) then owned by the Purchaser or the Issuer, together
with a reconciliation of such list to the Schedule of Receivables.
Section
5.02. Security
Interests. Except for the conveyances hereunder, the Seller
covenants that it will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein; the Seller
will immediately notify the Purchaser of the existence of any Lien on any
Receivable and, in the event that the interests of the Noteholders in such
Receivable are materially and adversely affected, such Receivable shall be
repurchased from the Purchaser by the Seller in the manner and with the effect
specified in Section 3.03(c), and the Seller shall defend the right, title
and interest of the Purchaser and its assigns in, to and under the Receivables,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Seller; provided, however, that nothing in this
subsection shall prevent or be deemed to prohibit the Seller from suffering to
exist upon a Receivable any Lien for municipal or other local taxes if such
taxes shall not at the time be due and payable or if the Seller shall currently
be contesting the validity of such taxes in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
Section
5.03. Delivery of
Payments. The Seller covenants and agrees to deliver in kind
upon receipt to the Master Servicer under the Sale and Servicing Agreement all
payments received by or on behalf of the Seller in respect of the Receivables as
soon as practicable after receipt thereof by the Seller.
Section
5.04. No
Impairment. The Seller covenants that it shall take no action,
nor omit to take any action, which would impair the rights of the Purchaser, the
Issuer or the Noteholders
14
in any
Receivable, nor shall it, except as otherwise provided in this Agreement or the
Sale and Servicing Agreement, reschedule, revise or defer payments due on any
Receivable.
Section
5.05. Costs and
Expenses. The Seller shall pay all reasonable costs and
expenses incurred in connection with the perfection of the Purchaser’s right,
title and interest in, to and under the Receivables.
Section
5.06. Sale. The
Seller agrees to treat the conveyances hereunder for all purposes (including
financial accounting purposes) as an absolute transfer on all relevant books,
records, financial statements and related documents.
Section
5.07. Hold
Harmless. The Seller shall protect, defend, indemnify and hold
the Purchaser and the Issuer and their respective assigns and their attorneys,
accountants, employees, officers and directors harmless from and against all
losses, costs, liabilities, claims, damages and expenses of every kind and
character, as incurred, resulting from or relating to or arising out of
(i) the inaccuracy, nonfulfillment or breach of any representation,
warranty, covenant or agreement made by the Seller in this Agreement,
(ii) any legal action, including any counterclaim, that has either been
settled by the litigants (which settlement, if the Seller is not a party thereto
shall be with the consent of the Seller) or has proceeded to judgment by a court
of competent jurisdiction, in either case to the extent it is based upon alleged
facts that, if true, would constitute a breach of any representation, warranty,
covenant or agreement made by the Seller in this Agreement, (iii) any
actions or omissions of the Seller or any employee or agent of the Seller
occurring prior to the Closing Date with respect to any Receivable or the
related Financed Vehicle or (iv) any failure of a Receivable to be
originated in compliance with all requirements of law. These
indemnity obligations shall be in addition to any obligation that the Seller may
otherwise have.
15
ARTICLE
SIX
MISCELLANEOUS
PROVISIONS
Section
6.01. Amendment.
(a) This
Agreement may be amended from time to time by a written amendment duly executed
and delivered by the Purchaser and the Seller, without the consent of any
Noteholder, to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or to add any other
provision with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
Sale and Servicing Agreement; provided, however, that any such amendment shall
not, as evidenced by an Opinion of Counsel to the Seller delivered to the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder.
(b) This
Agreement may also be amended from time to time for any other purpose by a
written amendment duly executed and delivered by the Seller and by the
Purchaser; provided, however, that any such amendment that materially adversely
affects the interests of the Noteholders under the Indenture, the Sale and
Servicing Agreement or the Trust Agreement must be consented to by the Holders
of Notes evidencing not less than 66⅔% of the Note Balance of the Controlling
Class of Notes (or if the Notes are no longer Outstanding, holders of not less
than 51% of the aggregate Certificate Percentage Interests of the Certificates
then outstanding). Promptly after the execution of any such
amendment, the Seller shall furnish written notification of the substance of
such amendment to the Owner Trustee, the Indenture Trustee and the Rating
Agencies.
Section
6.02. Termination. The
respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the indemnity obligations of the
Seller as provided herein, upon the termination of the Issuer as provided in the
Trust Agreement.
Section
6.03. GOVERNING
LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
6.04. Notices. All
demands, notices and communications hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or sent by telecopier,
overnight courier or mailed by registered mail, return receipt requested, in the
case of the (i) Purchaser, to WDS Receivables LLC, 000 Xxxx Xxxx Xxxxxxx
Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx, 00000 and (ii) Seller, to Wachovia
Dealer Services, Inc., 00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000, or, as to either of
such Persons, at such other address as shall be designated by such Person in a
written notice to the other Persons.
Section
6.05. Severability of
Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall for any reason whatsoever be held
16
invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions and terms of this Agreement
and shall in no way affect the validity or enforceability of the other
covenants, agreements, provisions and terms of this Agreement.
Section
6.06. Further
Assurances. The Seller and the Purchaser agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party hereto or by the
Issuer or the Indenture Trustee more fully to effect the purposes of this
Agreement, including the execution of any financing statements, amendments,
continuation statements or releases relating to the Receivables for filing under
the provisions of the UCC or other law of any applicable
jurisdiction.
Section
6.07. No Waiver; Cumulative
Remedies. No failure to exercise and no delay in exercising,
on the part of the Purchaser, the Issuer, the Indenture Trustee, the Noteholders
or the Seller, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by
law.
Section
6.08. Counterparts. This
Agreement may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section
6.09. Third-Party
Beneficiaries. This Agreement will inure to the benefit of and
be binding upon the parties hereto. Each of the Issuer, the Indenture
Trustee, the Owner Trustee, the Swap Counterparty and the Noteholders shall be
deemed to be a third-party beneficiary of this Agreement. Except as
otherwise provided in this Agreement, no other Person will have any right or
obligation hereunder.
Section
6.10. Headings. The
Article and Section headings and the Table of Contents herein are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section
6.11. Representations, Warranties
and Agreements to Survive. The respective agreements,
representations, warranties and other statements by the Seller and by the
Purchaser set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the closing hereunder of the transactions
contemplated hereby and shall inure to the benefit of the Purchaser, the
Trustees and the Noteholders.
Section
6.12. No
Proceedings. So long as this Agreement is in effect, and for one
year plus one day following its termination, the Seller agrees that it will not
file any involuntary petition or otherwise institute any bankruptcy,
reorganization arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or State bankruptcy law or similar law against the
Purchaser or the Issuer.
17
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers, thereunto duly authorized, as of the day
and year first above written.
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WACHOVIA
DEALER SERVICES, INC.,
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as
Seller
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By:
/s/ X. Xxxxx
Palmer_______________________
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Name: J.
Xxxxx Xxxxxx
Title:
Senior Vice President, Treasury
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WDS
RECEIVABLES LLC,
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as
Purchaser
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By:
/s/ Xxxxx
Ford___________________________
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Name:
Xxxxx Xxxx
Title:
Assistant Vice President
SCHEDULE A
SCHEDULE
OF RECEIVABLES
[Original
on file at Master Servicer’s office]
SA-1
SCHEDULE
B
LOCATION
OF RECEIVABLE FILES
Wachovia
Dealer Services, Inc.
00000
Xxxxx Xxxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Wachovia
Dealer Services, Inc.
0000 X.
Xxxxx Xxxxxxx 000
Xxxxxx,
Xxxxx 00000
SB-1
EXHIBIT A
REPRESENTATIONS
AND WARRANTIES AS TO THE RECEIVABLES
See
Exhibit A to Sale and Servicing Agreement
A-1
EXHIBIT B
FORM OF
FIRST-TIER ASSIGNMENT
For value
received, in accordance with the receivables purchase agreement, dated as of
June 1, 2008 (the “Receivables Purchase Agreement”), between Wachovia
Dealer Services, Inc. (the “Seller”) and WDS Receivables LLC (the “Purchaser”),
the Seller does hereby irrevocably sell, transfer, assign and otherwise convey
unto the Purchaser, without recourse (subject to the obligations of the Seller
herein and in the Receivables Purchase Agreement), all right, title and interest
of the Seller in, to and under, whether now owned or existing or hereafter
acquired or arising, in, to and under the following:
(i) the
Receivables listed on Schedule A hereto (the “Receivables”) and all amounts
due and received on or in respect of the Receivables (including proceeds of the
repurchase of Receivables by the Seller pursuant to the Receivables Purchase
Agreement) after the Cutoff Date;
(ii) the
security interests in the Financed Vehicles granted by the Obligors pursuant to
the Receivables and any other interest of the Seller in such Financed
Vehicles;
(iii) all
proceeds from claims on or refunds of premiums of any physical damage or theft
insurance policies and extended warranties covering the Financed Vehicles and
any proceeds or refunds of premiums of any credit life or credit disability
insurance policies relating to the Receivables, the related Financed Vehicles or
the related Obligors;
(iv) the
Receivable Files that relate to the Receivables;
(v) any
proceeds of Dealer Recourse that relate to the Receivables;
(vi) the right
to realize upon any property (including the right to receive future Net
Liquidation Proceeds and Recoveries) that shall have secured a Receivable and
have been repossessed by or on behalf of the Seller; and
(vii) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing, and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all accounts, accounts
receivable, general intangibles, chattel paper, documents, money, investment
property, deposit accounts, letters of credit, letter of credit rights,
insurance proceeds, condemnation awards, notes, drafts, acceptances, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing.
B-1
In the
event that the foregoing sale, transfer, assignment and conveyance is deemed to
be a pledge, the Seller hereby grants to the Purchaser a first priority security
interest in all of the Seller’s right to and interest in the Receivables and
other property described in clauses (i) through (vii) above to secure a
loan deemed to have been made by the Purchaser to the Seller in an amount equal
to the sum of the initial principal amount of the Notes plus accrued interest
thereon.
THIS
FIRST-TIER ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS OF THE
SELLER UNDER THIS FIRST TIER ASSIGNMENT SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
This
First-Tier Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Receivables Purchase Agreement and is to be governed by the Receivables Purchase
Agreement.
Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Receivables Purchase Agreement.
IN
WITNESS WHEREOF, the undersigned has caused this First Tier Assignment to be
duly executed as of the day and year first written above.
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WACHOVIA
DEALER SERVICES, INC.
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By:
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| Name: | |||
| Title: | |||
B-2
