Exhibit 10.2
EXECUTION COPY
================================================================================
WACHOVIA AUTO OWNER TRUST 2004-B,
as Issuer,
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrator,
POOLED AUTO SECURITIES SHELF LLC,
as Depositor,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
-------------------------------------------------
ADMINISTRATION AGREEMENT
Dated as of September 1, 2004
-------------------------------------------------
================================================================================
TABLE OF CONTENTS
Page
Section 1.01. Capitalized Terms; Interpretive Provisions..........................................................2
Section 1.02. Duties of the Administrator.........................................................................2
Section 1.03. Records.............................................................................................8
Section 1.04. Compensation........................................................................................8
Section 1.05. Additional Information to be Furnished to the Issuer................................................8
Section 1.06. Independence of the Administrator...................................................................8
Section 1.07. No Joint Venture....................................................................................8
Section 1.08. Other Activities of Administrator...................................................................8
Section 1.09. Term of Agreement; Resignation and Removal of Administrator.........................................9
Section 1.10. Action Upon Termination, Resignation or Removal....................................................10
Section 1.11. Notices............................................................................................10
Section 1.12. Amendments.........................................................................................10
Section 1.13. Successors and Assigns.............................................................................11
Section 1.14. Governing Law......................................................................................11
Section 1.15. Headings...........................................................................................11
Section 1.16. Counterparts.......................................................................................11
Section 1.17. Severability.......................................................................................11
Section 1.18. Limitation of Liability of Owner Trustee and Indenture Trustee.....................................12
Section 1.19. Third-Party Beneficiary............................................................................12
Section 1.20. Successor Servicer and Administrator...............................................................12
Section 1.21. Nonpetition Covenants..............................................................................12
EXHIBITS
Exhibit A - Form of Power of Attorney....................................................................... A-1
i
ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of September 1, 2004 (the
"Agreement"), is among Wachovia Auto Owner Trust 2004-B, as issuer (the
"Issuer"), Wachovia Bank, National Association ("Wachovia Bank"), as
administrator (the "Administrator"), Pooled Auto Securities Shelf LLC ("PASS"),
as depositor (the "Depositor"), and U.S. Bank National Association, not in its
individual capacity but solely as trustee (the "Indenture Trustee").
WHEREAS, the Issuer was created pursuant to the trust agreement, dated
as of July 14, 2004, as amended and restated as of September 1, 2004 (the "Trust
Agreement"), each between the Depositor and Wilmington Trust Company, as trustee
(in such capacity and not in its individual capacity, the "Owner Trustee");
WHEREAS, the Issuer is issuing 1.8125% Class A-1 Asset Backed Notes,
2.40% Class A-2 Asset Backed Notes, 2.91% Class A-3 Asset Backed Notes, 3.44%
Class A-4 Asset Backed Notes, 2.86% Class B Asset Backed Notes and 3.17% Class C
Asset Backed Notes (collectively, the "Notes") pursuant to an indenture, dated
as of the date hereof (the "Indenture"), between the Issuer and the Indenture
Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests in
the Issuer, including (i) the Indenture, (ii) a sale and servicing agreement,
dated as of the date hereof (the "Sale and Servicing Agreement"), among the
Issuer, the Depositor and Wachovia Bank, as seller (in such capacity, the
"Seller") and as servicer (in such capacity, the "Servicer"), (iii) a
receivables purchase agreement, dated as of the date hereof (the "Receivables
Purchase Agreement"), between the Seller and the Depositor, (iv) a Letter of
Representations, dated September 9, 2004 (the "Note Depository Agreement"),
among the Issuer, the Indenture Trustee, Wachovia Bank, as paying agent, and The
Depository Trust Company ("DTC"), relating to the Notes, and (v) a control
agreement, dated as of the date hereof (the "Control Agreement" and, together
with this Agreement, the Indenture, the Sale and Servicing Agreement, the Trust
Agreement, the Receivables Purchase Agreement and the Note Depository Agreement,
the "Basic Documents"), among the Issuer, the Servicer, Wachovia Bank, as the
account bank, and the Indenture Trustee;
WHEREAS, pursuant to the Basic Documents, the Issuer and the Owner
Trustee are required to perform certain duties in connection with the (i) Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (ii) beneficial ownership interests in the Issuer;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the other Basic Documents as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.01. Capitalized Terms; Interpretive Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto or incorporated by reference in the Trust
Agreement, the Sale and Servicing Agreement or the Indenture, as the case may
be. Whenever used herein, unless the context otherwise requires, the following
words and phrases shall have the following meanings:
"Agreement" means this Administration Agreement.
"Basic Documents" has the meaning set forth in the recitals.
(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, instrument or
statute defined or referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement, instrument or statute as
from time to time amended, modified or supplemented and includes (in the case of
agreements 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 and Exhibit references in this Agreement are references to
Sections, subsections 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.
Section 1.02. Duties of the Administrator.
(a) The Administrator agrees to perform all its duties as Administrator
and, except as specifically excluded herein, agrees to perform all the duties of
the Issuer and the Owner Trustee under the Basic Documents. In addition, the
Administrator shall consult with the Owner Trustee regarding the duties of the
Issuer or the Owner Trustee under the Basic Documents. The Administrator shall
monitor the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the respective duties of the Issuer and the
Owner Trustee under the Basic Documents. The Administrator shall prepare for
execution by the Issuer, or shall cause the preparation by other appropriate
persons of, all such documents, reports, notices, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Basic Documents. In
furtherance of the foregoing, the Administrator shall take (or, in the case of
the immediately preceding sentence, cause to be taken) all appropriate action
that the Issuer or the Owner Trustee is required to take
2
pursuant to the Indenture including, without limitation, such of the foregoing
as are required with respect to the following matters under the Indenture
(references are to Sections of the Indenture):
(i) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.02);
(ii) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Register
(Section 2.05);
(iii) the notification of Noteholders of the final principal
payment on the Notes (Section 2.08(e));
(iv) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.02, 2.03, 2.06 and
2.12);
(v) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.13);
(vi) the maintenance of an office or agency in the Borough of
Manhattan, the City of New York, where Notes may be surrendered for
registration of transfer or exchange (Section 3.02);
(vii) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
(viii) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture Trustee
(Section 3.03);
(ix) the obtaining and preservation of the Issuer's
qualifications to do business in each jurisdiction where such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument or agreement included in the Trust Estate, including
all licenses required under the (A) Maryland Vehicle Sales Finance Act
and (B) Pennsylvania Motor Vehicle Sales Finance Act (Section 3.04);
(x) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking
of such other action as are necessary or advisable to protect the Trust
Estate (Section 3.05);
(xi) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to the Trust
Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections
3.06 and 3.09);
3
(xii) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted
to perform its duties under the Indenture (Section 3.07(b));
(xiii) the preparation and delivery of written notice to the
Indenture Trustee and the Rating Agencies of each Servicer Termination
Event and, if such Servicer Termination Event arises from the failure
of the Servicer to perform any of its duties or obligations under the
Sale and Servicing Agreement with respect to the Receivables, the
taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(xiv) the preparation and obtaining of documents and
instruments required for the conveyance or transfer by the Issuer of
its properties or assets (Section 3.10(b));
(xv) the duty to cause the Servicer to comply with the Sale
and Servicing Agreement (Section 3.14);
(xvi) the delivery of written notice to the Indenture Trustee
and each Rating Agency of each Event of Default under the Indenture and
each default by the Servicer, the Seller or the Depositor under the
Sale and Servicing Agreement or by the Seller or the Depositor under
the Receivables Purchase Agreement (Section 3.19);
(xvii) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.01);
(xviii) the compliance with Section 5.04 of the Indenture with
respect to the sale of the Trust Estate if an Event of Default shall
have occurred and be continuing (Section 5.04);
(xix) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(xx) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of the Indenture Trustee or any co-trustee or
separate trustee (Sections 6.08 and 6.10);
(xxi) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(xxii) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders
(Section 7.03);
4
(xxiii) the opening of one or more accounts in the Indenture
Trustee's name and the taking of all other actions necessary with
respect to investment and reinvestment of funds in the Accounts
(Sections 8.02 and 8.03);
(xxiv) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate
(Sections 8.04 and 8.05);
(xxv) the preparation of Issuer Requests, the obtaining of
Opinions of Counsel and the certification to the Indenture Trustee with
respect to the execution of supplemental indentures and the mailing to
the Noteholders and the Rating Agencies, as applicable, of notices with
respect to such supplemental indentures (Sections 9.01 and 9.02);
(xxvi) the execution, authentication and delivery of new Notes
conforming to any supplemental indenture (Section 9.06);
(xxvii) the duty to notify the Depositor, the Indenture
Trustee, the Noteholders and the Rating Agencies of redemption of the
Notes or to cause the Servicer to provide such notification (Sections
10.01 and 10.02);
(xxviii) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer to the Indenture Trustee to take
any action under the Indenture (Section 11.01(a));
(xxix) the preparation and delivery of Officer's Certificates
and the obtaining of Opinions of Counsel and Independent Certificates,
if necessary, for the release of property from the Lien of the
Indenture (Section 11.01(b));
(xxx) the preparation and delivery of written notice to the
Rating Agencies, upon the failure of the Issuer, the Depositor or the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section 11.04);
(xxxi) the preparation and delivery to the Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.06); and (xxxii) the recording of the
Indenture, if applicable (Section 11.15).
(b) The Administrator shall:
(i) pay the Indenture Trustee from time to time such
compensation and fees for all services rendered by the Indenture
Trustee under the Indenture as have been agreed to in a separate fee
schedule between the Administrator and the Indenture Trustee (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
5
(ii) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Basic Documents
(including the reasonable compensation, expenses and disbursements of
its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its willful misconduct, negligence or
bad faith;
(iii) except as otherwise expressly provided in the third
sentence of Section 7.01 of the Trust Agreement, reimburse the Owner
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Owner Trustee in accordance with any
provision of the Trust Agreement (including reasonable compensation,
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its willful
misconduct, negligence or bad faith of the Owner Trustee;
(iv) indemnify the Owner Trustee and its agents, successors,
assigns, directors, officers and employees for, and hold them harmless
against, any loss, obligation, damage, tax, claim, suit, liability or
expense incurred without negligence, willful misconduct or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust Agreement,
including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties under the Trust Agreement;
and
(v) promptly appoint a successor Indenture Trustee pursuant to
Section 6.08 of the Indenture, upon the Indenture Trustee's resignation
or removal, or if the office of the Indenture Trustee becomes vacant
for any other reason.
(c) In addition to the duties set forth in Sections 1.02(a) and (b),
the Administrator shall perform such calculations and shall prepare or shall
cause the preparation by other appropriate Persons of, and shall execute on
behalf of the Issuer or the Owner Trustee, all such documents, notices, reports,
filings, instruments, certificates and opinions that the Issuer or the Owner
Trustee are required to prepare, file or deliver pursuant to the Basic
Documents, and at the request of the Owner Trustee shall take all appropriate
action that the Issuer or the Owner Trustee are required to take pursuant to the
Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of
itself and of the Issuer, execute and deliver to the Administrator and to each
successor Administrator appointed pursuant to the terms hereof, one or more
powers of attorney substantially in the form of Exhibit A, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the
purpose of executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions. Subject to
Section 1.06, and in accordance with the directions of the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Basic
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Administrator.
6
(d) Notwithstanding anything in this Agreement or the Basic Documents
to the contrary, the Administrator shall be responsible for promptly notifying
the Owner Trustee in the event that any withholding tax is imposed on the
Issuer's payments (or allocations of income) to a Certificateholder as
contemplated in Section 5.02(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld by the Owner
Trustee pursuant to such provision.
(e) Notwithstanding anything in this Agreement or the Basic Documents
to the contrary, the Administrator shall be responsible for performance of the
duties of the Owner Trustee set forth in Section 5.05 of the Trust Agreement
with respect to, among other things, accounting and reports to
Certificateholders.
(f) To the extent that any tax withholding is required, the
Administrator shall deliver to the Owner Trustee and the Indenture Trustee, on
or before February 15, 2005, a certificate of an Authorized Officer in form and
substance satisfactory to the Owner Trustee as to such tax withholding and the
procedures to be followed with respect thereto to comply with the requirements
of the Code. The Administrator shall update such certificate if any additional
tax withholding is subsequently required or any previously required tax
withholding shall no longer be required.
(g) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator under the Trust
Agreement or any other Basic Document.
(h) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
or otherwise deal with any of its Affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated parties.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent, which consent shall not be
unreasonably withheld or delayed, or provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters" shall include:
(i) the amendment of or any supplement to the Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables);
(iii) the amendment, change or modification of the Basic
Documents;
(iv) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of
7
successor Administrators or Successor Servicers, or the consent to the
assignment by the Note Registrar, any Paying Agent or Indenture Trustee
of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (i) make any payments to
the Noteholders under the Basic Documents, (ii) take any other action that the
Issuer directs the Administrator not to take on its behalf or (iii) take any
other action which may be construed as having the effect of varying the
investment of the Securityholders.
Section 1.03. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Depositor at any time during normal business hours, upon reasonable
prior notice.
Section 1.04. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly
payment of compensation which shall be solely an obligation of the Servicer.
Section 1.05. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer may reasonably request.
Section 1.06. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 1.07. No Joint Venture. Nothing contained in this Agreement
shall (i) constitute the Administrator and either the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 1.08. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person, even though such Person may engage in
business activities similar to those of the Issuer, the Owner Trustee or the
Indenture Trustee.
8
Section 1.09. Term of Agreement; Resignation and Removal of
Administrator. This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Sections 1.09(d) and 1.09(e), the Administrator may
resign its duties hereunder by providing the Issuer with at least 60 days' prior
written notice.
(b) Subject to Sections 1.09(d) and 1.09(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(c) Subject to Sections 1.09(d) and 1.09(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default cannot
be cured in such time, shall not give within ten days such assurance of
cure as shall be reasonably satisfactory to the Issuer);
(ii) the existence of any proceeding or action, or the entry
of a decree or order for relief by a court or regulatory authority
having jurisdiction over the Administrator in an involuntary case under
the federal bankruptcy laws, as now or hereafter in effect, or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Administrator or of any
substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Administrator and the continuance of
any such action, proceeding, decree or order unstayed and, in the case
of any such order or decree, in effect for a period of 60 consecutive
days; or
(iii) the commencement by the Administrator of a voluntary
case under the federal bankruptcy laws, as now or hereafter in effect,
or the consent by the Administrator to the appointment of or taking of
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Administrator or of any
substantial part of its property or the making by the Administrator of
an assignment for the benefit of creditors or the failure by the
Administrator generally to pay its debts as such debts become due or
the taking of corporate action by the Administrator in furtherance of
any of the foregoing.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) above shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the occurrence of such
event.
(d) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be effective
after satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
9
(f) Subject to Sections 1.09(d) and 1.09(e), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Sale and Servicing Agreement, the Administrator shall immediately resign and
such Successor Servicer shall automatically become the Administrator under this
Agreement.
Section 1.10. Action Upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to the first
sentence of Section 1.09 or the resignation or removal of the Administrator
pursuant to Section 1.09(a), (b) or (c), respectively, the Administrator shall
be entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to the first sentence of Section 1.09
deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 1.09(a), (b) or
(c), respectively, the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
Section 1.11. Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or
certified first-class United States mail, postage prepaid, hand delivery,
prepaid courier service, or by telecopier (followed by hard copy by overnight
delivery), and addressed in each case as follows: (i) if to the Issuer or the
Owner Trustee, to Wachovia Auto Owner Trust 2004-B, c/o Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration; (ii) if to the
Administrator, to Wachovia Bank, National Association, 000 Xxxxx Xxxxx Xxxxxx,
00xx Floor, Mailcode NC 1179, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: ABS
Trust Services Manager; (iii) if to the Depositor, to Pooled Auto Securities
Shelf LLC, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000, Attention: General Counsel; (iv) if to the Indenture
Trustee, to U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: Structured Finance - Wachovia 2004-B; or (v) to such
other address as any party shall have provided to the other parties in writing.
Any notice required to be in writing hereunder shall be deemed given if such
notice is mailed by certified mail, postage prepaid, or hand-delivered to the
address of such party as provided above.
Section 1.12. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties hereto,
with the written consent of the Owner Trustee but without the consent of the
Noteholders or the Certificateholders, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, that such amendment will not, in the Opinion of
Counsel satisfactory to the Indenture Trustee, materially and adversely affect
the interest of any of the Noteholders or the Certificateholders. This Agreement
may also be amended by the parties hereto with the written consent of the
Noteholders evidencing at least 51% of the Note Balance of the Controlling Class
or, if the Notes have been paid in full, the Certificateholders evidencing at
least 51% of the aggregate Certificate Percentage Interest for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such amendment
may (i) increase or reduce in any manner the amount of, or
10
accelerate or delay the timing of, collections of payments on the Receivables or
distributions that are required to be made for the benefit of the Noteholders or
the Certificateholders or (ii) reduce the percentage of the Note Balance or of
the Certificate Percentage Interest, the consent of the Noteholders or the
Certificateholders, respectively, of which is required for this amendment, in
each case without the consent of the Holders of all outstanding Notes and
Certificates adversely affected by the amendment.
An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder or Certificateholder if the
Person requesting such amendment obtains and delivers to the Owner Trustee and
the Indenture Trustee an Opinion of Counsel to that effect or the Rating Agency
Condition is satisfied. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the consent of the Depositor, which consent shall
not be unreasonably withheld.
Section 1.13. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer and the Owner Trustee, and subject to the satisfaction
of the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided, that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement, in form and substance reasonably satisfactory to
the Owner Trustee and the Indenture Trustee, in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
Section 1.14. 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 1.15. Headings. The 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 1.16. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 1.17. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants,
11
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 1.18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Wilmington Trust Company solely in its capacity
as Owner Trustee of, and on behalf of, the Issuer and in no event shall the
Owner Trustee in its individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles Six, Seven and Eight of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by U.S. Bank National Association in its capacity as
Indenture Trustee under the Indenture and in no event shall the Indenture
Trustee in its individual capacity have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
Section 1.19. Third-Party Beneficiary. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
Section 1.20. Successor Servicer and Administrator. The Administrator
shall undertake, as promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 7.02 of the Sale and Servicing Agreement, to enforce the provisions of
such Section 7.02 with respect to the appointment of a successor Servicer. Such
successor Servicer shall, upon compliance with the second to last sentence of
Section 7.02 of the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture Trustee shall
become such successor Administrator, the Indenture Trustee shall not be required
to perform any obligations or duties or conduct any activities as successor
Administrator that would be prohibited by law and not within the banking and
trust powers of the Indenture Trustee. In such event, the Indenture Trustee may
appoint a sub-administrator to perform such obligations and duties. Any transfer
of servicing pursuant to Section 7.02 of the Sale and Servicing Agreement and
related succession as Administrator hereunder shall not constitute an assumption
by the related successor Administrator of any liability of the related outgoing
Administrator arising out of any breach by such outgoing Administrator of such
outgoing Administrator's duties hereunder prior to such transfer.
Section 1.21. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the
Depositor, the Administrator, the Owner Trustee and the Indenture Trustee shall
not at any time acquiesce, petition or otherwise invoke or cause the Issuer to
invoke the process of any court or government
12
authority for the purpose of commencing or sustaining a case against the Issuer
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee shall not
at any time acquiesce, petition or otherwise invoke or cause the Depositor to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Depositor or any substantial part of its property, or ordering the winding up or
liquidation of the Depositor.
13
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.
WACHOVIA AUTO OWNER TRUST 2004-B,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
Vice President
POOLED AUTO SECURITIES SHELF LLC,
as Depositor
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ Xxxxxxxx X'Xxxxx Xxxxxxx
-------------------------------------------
Xxxxxxxx X'Xxxxx Xxxxxxx
Vice President
Administration Agreement
EXHIBIT A
POWER OF ATTORNEY PURSUANT TO
SECTION 1.02(c) OF ADMINISTRATION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as Owner
Trustee of Wachovia Auto Owner Trust 2004-B (the "Grantor"), a Delaware
statutory trust (the "Issuer"), does hereby appoint Wachovia Bank, National
Association, a national banking association (the "Grantee") as its
attorney-in-fact with full power of substitution and hereby authorizes and
empowers the Grantee, in the name of and on behalf of the Grantor or the Issuer,
to take the following actions from time to time with respect to the duties of
the Administrator under the administration agreement, dated as of September 1,
2004 (the "Administration Agreement"), among the Issuer, the Administrator,
Pooled Auto Securities Shelf LLC ("PASS") and U.S. Bank National Association,
for the purpose of executing on behalf of the Grantor or the Issuer all such
documents, reports, filings, instruments, certificates and opinions required
pursuant to the Basic Documents.
The Grantee is hereby empowered to do any and all lawful acts necessary
or desirable to effect the performance of its duties under the Administration
Agreement and the Grantor hereby ratifies and confirms any and all lawful acts
the Grantee shall undertake pursuant to and in conformity with this Power of
Attorney.
This Power of Attorney is revocable in whole or in part as to the
powers herein granted upon notice by the Grantor. If not earlier revoked, this
Power of Attorney shall expire completely or, if so indicated, in part, upon the
earlier of the (i) termination of the amended and restated trust agreement,
dated as of September 1, 2004 (the "Trust Agreement"), between PASS, as
depositor, and Wilmington Trust Company, as Owner Trustee, or (ii) termination
of the Administration Agreement. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement or, if not defined therein, in the Administration Agreement, as the
case may be.
This Power of Attorney shall be created under and governed and
construed under the internal laws of the State of New York.
The Grantor executes this Power of Attorney with the intent to be
legally bound hereby, and with the intent that such execution shall have the
full dignity afforded by the accompanying witnessing and notarization and all
lesser dignity resulting from the absence of such witnessing and notarization or
any combination thereof.
A-1
Dated this __th day of September, 2004.
[Seal] WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee of
Wachovia Auto Owner Trust 2004-B
By: _______________________________
Name:
Title:
Signed and delivered in the presence of:
_________________________________________
Address:_________________________________
_________________________________
[Unofficial Witness]
A-2
