WACHOVIA AUTO OWNER TRUST 2008-A, as Issuer, WACHOVIA BANK, NATIONAL ASSOCIATION as Administrator, WDS RECEIVABLES LLC, as Depositor, and U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee
Exhibit 99.2
EXECUTION VERSION
as
Issuer,
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Administrator,
WDS
RECEIVABLES LLC,
as
Depositor,
and
U.S. BANK
NATIONAL ASSOCIATION,
as
Indenture Trustee
Dated as of June 1, 2008
TABLE OF
CONTENTS
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Page
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Section
1.01. Capitalized Terms; Interpretive Provisions.
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2
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Section
1.02. Duties of the Administrator.
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2
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Section
1.03. Records
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8
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Section
1.04. Compensation
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8
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Section
1.05. Additional Information to be Furnished to the
Issuer
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9
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Section
1.06. Independence of the Administrator
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9
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Section
1.07. No Joint Venture
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9
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Section
1.08. Other Activities of Administrator
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9
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Section
1.09. Term of Agreement; Resignation and Removal of
Administrator
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9
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Section
1.10. Action Upon Termination, Resignation or
Removal
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10
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Section
1.11. Notices
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10
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Section
1.12. Amendments
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11
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Section
1.13. Successors and Assigns
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11
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Section
1.14. Governing Law
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12
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Section
1.15. Headings
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12
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Section
1.16. Counterparts
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12
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Section
1.17. Severability
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12
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Section
1.18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
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12
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Section
1.19. Third-Party Beneficiary
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13
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Section
1.20. Successor Master Servicer and Administrator
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13
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Section
1.21. Nonpetition Covenants.
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13
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EXHIBITS
| Exhibit A - Form of Power of Attorney |
A-1
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i
This
Administration Agreement, dated as of June 1, 2008 (this “Agreement”), is among
Wachovia Auto Owner Trust 2008-A, as issuer (the “Issuer”), Wachovia Bank,
National Association (“Wachovia Bank”), as administrator (the “Administrator”),
WDS Receivables LLC (“WDS Receivables”), 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 August 21,
2007, as amended and restated as of June 1, 2008 (the “Trust Agreement”),
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 2.93084% Class A-1 Asset Backed Notes, 4.09%
Class A-2a Asset Backed Notes, LIBOR plus 0.67% Class A-2b Asset Backed
Notes, 4.81% Class A-3a Asset Backed Notes, LIBOR plus 0.95% Class A-3b Asset
Backed Notes, 5.35% Class A-4a Asset Backed Notes, LIBOR plus 1.15% Class A-4b
Asset Backed Notes and 6.00% Class B 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,
in connection with the issuance of the Notes and of certain beneficial ownership
interests in the Issuer, certain documents have been executed, 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, Wachovia Dealer Services, Inc., as seller (the “Seller”) and Wachovia
Bank, as master servicer (in such capacity, the “Master Servicer”), (iii) a
receivables purchase agreement, dated as of the date hereof (the “Receivables
Purchase Agreement”), between the Seller and the Depositor, (iv) a ISDA master
agreement, dated June 19, 2008, between the Issuer and Wachovia Bank, as swap
counterparty (the “Swap Counterparty”), including the schedule thereto, the
credit support annex thereto and three confirmations relating to the Issuer’s
Class A-2b Notes, Class A-3b Notes and Class A-4b Notes, respectively
(collectively, the “Swap Agreement”) 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 Swap Agreement, the “Basic Documents”),
among the Issuer, the Master 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
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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
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
notification of Noteholders of the final principal payment on the Notes
(Section 2.08(e));
(ii) the
preparation, obtaining or filing of the instruments, opinions and certificates
and other documents required for the release of Collateral
(Section 2.13);
(iii) 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);
(iv) the
direction to the Indenture Trustee to deposit monies with Paying Agents, if any,
other than the Indenture Trustee (Section 3.03);
(v) 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);
(vi) 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);
(vii) 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);
(viii) 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));
(ix) 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 Master 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));
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(x) 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));
(xi) the
duty to cause the Master Servicer to comply with the Sale and Servicing
Agreement (Section 3.14);
(xii) 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 Master
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);
(xiii) 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);
(xiv) 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);
(xv) 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);
(xvi) 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);
(xvii) 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);
(xviii) 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);
(xix) the
opening of one or more accounts in the Indenture Trustee’s name, established
with Wachovia Bank and the taking of all other actions necessary with respect to
investment and reinvestment of funds in such accounts (Sections 8.02 and
8.03);
(xx) 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);
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(xxi) 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);
(xxii) 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));
(xxiii) 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));
(xxiv) 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 the Indenture
(Section 11.04); and
(xxv) the
recording of the Indenture, if applicable (Section 11.15).
(b) The
Administrator shall:
(i) pay
or cause the Master Servicer to pay to the Indenture Trustee from time to time
such compensation and fees for all services rendered by the Indenture Trustee
under the Indenture (unless otherwise paid pursuant to Section 2.08 of 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);
(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) indemnify
or cause the Master Servicer to indemnify, the Indenture Trustee for, and hold
it harmless, or cause the Master Servicer to hold it harmless, against, any and
all losses, liabilities or expenses, including attorneys’ fees, incurred by it
in connection with the administration of the Issuer and the performance of its
duties under the Indenture, except the Indenture Trustee will not be indemnified
for, or held harmless against, any loss, liability or expense incurred by it
through its own willful misconduct, negligence or bad faith;
(iv) 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
5
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;
(v) 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
(vi) 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.
(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.
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(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 December 31, 2008,
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 successor
Administrators or Successor Master 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.
7
(k) The
Administrator may enter into subservicing agreements with one or more
subservicers for the performance of all or part of the Administrator’s duties
hereunder. References herein to actions taken or to be taken by the
Administrator include actions taken or to be taken by a subservicer on behalf of
the Administrator. Each subservicing agreement will be upon such
terms and conditions as are not inconsistent with this Agreement and as the
Administrator and the subservicer have agreed.
(l) If
requested by the Depositor for purposes of compliance with its reporting
obligations under the Exchange Act, the Administrator will provide to the
Depositor and the Master Servicer on or before March 31 of each year beginning
March 31, 2009, the servicing criteria assessment required to be filed in
respect of the Issuer under the Exchange Act under Item 1122 of Regulation AB if
periodic reports under Section 15(d) of the Exchange Act, or any successor
provision thereto, are required to be filed in respect of the Issuer and shall
cause a firm of independent certified public accountants, who may also render
other services to the Administrator, the Master Servicer, the Seller or the
Depositor, to deliver to the Depositor and the Master Servicer the attestation
report that would be required to be filed in respect of the Issuer under the
Exchange Act if periodic reports under Section 15(d) of the Exchange Act, or any
successor provision thereto, were required to be filed in respect of the
Issuer. Such attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act,
including, without limitation that in the event that an overall opinion cannot
be expressed, such registered public accounting firm shall state in such report
why it was unable to express such an opinion.
The
Administrator and the Depositor acknowledge and agree that the purpose of this
Section 1.02(l) is to facilitate compliance by the Depositor with the provisions
of Regulation AB and the related rules and regulations of the
Commission. The Depositor shall not exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. The Administrator acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and the Administrator agrees to comply with all
reasonable requests made by the Depositor in good faith for delivery of
information and shall deliver to the Depositor all information and
certifications reasonably required by the Depositor to comply with its Exchange
Act reporting obligations, including with respect to any of its predecessors or
successors. The obligations of the Administrator to provide such information
shall survive the removal or termination of the Administrator as Administrator
hereunder.
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
8
Administrator shall be entitled to a monthly payment of
compensation which shall be solely an obligation of the Master 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.
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
9
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.
(f) Subject
to Sections 1.09(d) and 1.09(e), the Administrator acknowledges that upon the
appointment of a Successor Master Servicer pursuant to the Sale and Servicing
Agreement, the Administrator shall immediately resign and such Successor Master
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
10
by overnight delivery), and addressed in each case as follows:
(i) if to the Issuer or the Owner Trustee, to Wachovia Auto Owner Trust
2008-A, c/o Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration; (ii) if to the Administrator, to Wachovia Bank, National
Association, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, Charlotte, North Carolina, 28288-5578, Attention: Treasury ABS
Department; (iii) if to the Depositor, to WDS Receivables LLC, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; (iv) if to the
Indenture Trustee, to U.S. Bank National Association, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇-▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance – WAOT 2008-A; 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 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
11
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, 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 solely 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.
12
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 Master Servicer
and Administrator. The Administrator shall undertake, as
promptly as possible after the giving of notice of termination to the Master
Servicer of the Master 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 Master
Servicer. Such successor Master 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 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 2008-A, as
Issuer
|
|
|
By:
|
WILMINGTON
TRUST COMPANY,
|
|
|
not
in its individual capacity but solely as Owner
Trustee
|
|
By:/s/ J. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Name: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Financial Services Officer
|
|
|
WDS
RECEIVABLES LLC,
|
|
|
as
Depositor
|
|
By:/s/ ▇▇▇▇▇
▇▇▇▇
|
|
|
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant
Vice President
|
|
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
not
in its individual capacity but solely as Indenture
Trustee
|
|
By:/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice
President
|
|
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WACHOVIA
BANK, NATIONAL
ASSOCIATION, as Administrator
|
| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice
President
|
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 2008-A, a Delaware statutory trust (the “Issuer”), as
grantor (in such capacity, the “Grantor”), does hereby appoint Wachovia Bank,
National Association, a national banking association (“Wachovia Bank”), as
grantee (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 Wachovia Bank, as administrator (in such capacity, the
“Administrator”) under the administration agreement, dated as of June 1, 2008
(the “Administration Agreement”), among the Issuer, the Administrator, WDS
Receivables LLC (“WDS Receivables”) 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 as Administrator 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 June 1, 2008 (the “Trust Agreement”), between WDS Receivables, 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 first day of June 2008.
|
[Seal]
|
WILMINGTON
TRUST COMPANY,
|
| not in its individual capacity but solely as Owner | |
| Trustee of Wachovia Auto Owner | |
| Trust 2008-A | |
|
By:
________________________________
Name:
Title:
|
Signed
and delivered in the presence of:
_________________________________
Address: _________________________
_________________________
[Unofficial
Witness]
A-2