Exhibit 10.3
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller,
and
POOLED AUTO SECURITIES SHELF LLC,
as Purchaser
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RECEIVABLES PURCHASE AGREEMENT
Dated as of _________ __, 200_
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions...................................................1
Section 1.02. Other Definitional Provisions.................................6
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Sale and Conveyance of Receivables............................7
Section 2.02. Purchase Price; Payments on the Receivables...................9
Section 2.03. Transfer of Receivables......................................10
Section 2.04. Examination of Receivable Files..............................10
Section 2.05. Expenses.....................................................10
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Purchaser..............11
Section 3.02. Representations and Warranties of the Seller.................12
Section 3.03. Representations and Warranties as to the Receivables.........14
ARTICLE FOUR
CONDITIONS
Section 4.01. Conditions to Obligation of the Purchaser....................16
Section 4.02. Conditions to Obligation of the Seller.......................19
ARTICLE FIVE
COVENANTS OF THE SELLER
Section 5.01. Protection of Right, Title and Interest in, to and
Under the Receivables........................................20
Section 5.02. Security Interests...........................................21
Section 5.03. Delivery of Payments.........................................21
Section 5.04. No Impairment................................................21
Section 5.05. Costs and Expenses...........................................22
Section 5.06. Sale.........................................................22
Section 5.07. Hold Harmless................................................22
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ARTICLE SIX
INDEMNIFICATION
Section 6.01. Indemnification..............................................23
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment....................................................26
Section 7.02. Termination..................................................26
Section 7.03. GOVERNING LAW................................................26
Section 7.04. Notices......................................................26
Section 7.05. Severability of Provisions...................................26
Section 7.06. Further Assurances...........................................27
Section 7.07. No Waiver; Cumulative Remedies...............................27
Section 7.08. Counterparts.................................................27
Section 7.09. Third-Party Beneficiaries....................................27
Section 7.10. Headings.....................................................27
Section 7.11. Representations, Warranties and Agreements to Survive........27
Section 7.12. No Proceedings...............................................27
SCHEDULES
Schedule A - Schedule of Receivables......................................SA-1
Schedule B - Location of Receivable Files.................................SB-1
EXHIBITS
Exhibit A - Representations and Warranties as to the Receivables...........A-1
Exhibit B - Form of First-Tier Initial Assignment..........................B-1
Exhibit C - Form of First-Tier Subsequent Assignment.......................C-1
Exhibit D - Officer's Certificate of Wachovia Bank.........................D-1
Exhibit E - Opinion of Counsel for Wachovia Bank...........................E-1
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RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement, dated as of _________ __, 200_ is
between Wachovia Bank, National Association, a national banking association
("Wachovia Bank"), as seller (the "Seller"), and Pooled Auto Securities Shelf
LLC, a Delaware limited liability company ("PASS"), as purchaser (the
"Purchaser").
WHEREAS, in the regular course of its business, the Seller purchases
motor vehicle retail installment sale contracts secured by new and used motor
vehicles (the "Receivables");
WHEREAS, the Seller intends to convey all of its right, title and
interest in and to certain initial Receivables to the Purchaser on __________
__, 200_, and certain subsequent Receivables to the Purchaser from time to
time thereafter, and the Purchaser shall convey all of its right, title and
interest in and to the Receivables to Wachovia Auto Owner Trust 200_-_ (the
"Issuer") pursuant to the sale and servicing agreement, dated as of __________
__, 200_, among the Issuer, PASS, and Wachovia Bank; and
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables are to be sold by the Seller to the
Purchaser.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Agreement" means this Receivables Purchase Agreement.
"Amount Financed" has the meaning specified in the Sale and Servicing
Agreement.
"Basic Documents" has the meaning specified in the Sale and Servicing
Agreement.
"Certificate" has the meaning specified in the Trust Agreement.
"Certificateholder" has the meaning specified in the Trust Agreement.
"Class A Note" has the meaning specified in the Indenture.
"Class B Final Scheduled Distribution Date" has the meaning specified in
the Indenture.
"Closing Date" has the meaning specified in the Indenture.
"Collateral Term Sheet" has the meaning specified in the Underwriting
Agreement.
"Collection Period" has the meaning specified in the Indenture.
"Commission" has the meaning specified in the Sale and Servicing
Agreement.
"Computational Materials" has the meaning specified in the Underwriting
Agreement.
"Contract Rate" has the meaning specified in the Sale and Servicing
Agreement.
"Controlling Class" has the meaning specified in the Indenture.
"Cutoff Date" has the meaning specified in the Sale and Servicing
Agreement.
"Dealer" has the meaning specified in the Sale and Servicing Agreement.
"Dealer Agreement" has the meaning specified in the Sale and Servicing
Agreement.
"Dealer Recourse" has the meaning specified in the Sale and Servicing
Agreement.
"Deposit Date" has the meaning specified in Sale and Servicing Agreement.
"Depositor" has the meaning specified in the Trust Agreement.
"DTC" means The Depository Trust Company.
"Exchange Act" has the meaning specified in the Indenture.
"FDIC Rule" means 12 C.F.R. Section 360.6.
"Financed Vehicle" has the meaning specified in the Sale and Servicing
Agreement.
"First-Tier Initial Assignment" means the First-Tier Initial Assignment,
in substantially the form of Exhibit B hereto.
"First-Tier Subsequent Assignment" means a First-Tier Subsequent
Assignment, in substantially the form of Exhibit C hereto.
"Holder" has the meaning specified in the Trust Agreement.
"Indenture" means the indenture, dated as of __________ __, 200_, between
the Issuer and the Indenture Trustee.
"Indenture Trustee" has the meaning specified in the Indenture.
"Initial Cutoff Date" has the meaning specified in the Sale and Servicing
Agreement.
"Initial Receivables" has the meaning specified in the Sale and Servicing
Agreement.
"Initial Receivables Purchase Price" means $____________.
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"Issuer" has the meaning specified in the recitals.
"Lien" has the meaning specified in the Sale and Servicing Agreement.
"Master Servicer" has the meaning specified in the Sale and Servicing
Agreement.
"Monthly Payment" has the meaning specified in the Sale and Servicing
Agreement.
"Xxxxx'x" has the meaning specified in the Indenture.
"Net Liquidation Proceeds" has the meaning specified in the Sale and
Servicing Agreement.
"Note Balance" has the meaning specified in the Indenture.
"Noteholders" has the meaning specified in the Indenture.
"Notes" has the meaning specified in the Indenture.
"Obligor" has the meaning specified in the Sale and Servicing Agreement.
"Officer's Certificate" has the meaning specified in the Sale and
Servicing Agreement
"Opinion of Counsel" has the meaning specified in Sale and Servicing
Agreement.
"Owner Trustee" has the meaning specified in the Trust Agreement.
"PASS" has the meaning specified in the preamble.
"PASS Holding" means PASS Holding LLC.
"Pre-Funding Account" has the meaning specified in the Sale and Servicing
Agreement.
"Principal Balance" has the meaning specified in the Sale and Servicing
Agreement.
"Preliminary Prospectus" means the preliminary prospectus supplement,
dated __________ __, 200_, and the prospectus, dated ___________ __, 200_, of
the Purchaser relating to the public offering by the Purchaser of the
Underwritten Notes.
"Prospectus" means the prospectus supplement, dated __________ __, 200_,
and the prospectus, dated __________ __, 200_, of the Purchaser relating to
the public offering by the Purchaser of the Underwritten Notes.
"Purchase Amount" has the meaning specified in Sale and Servicing
Agreement.
"Purchase Price" means the Initial Receivables Purchase Price or the
Subsequent Purchase Price, as the context may require.
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"Purchaser" means PASS, in its capacity as purchaser of the Receivables
under this Agreement, and its successors in such capacity.
"Rating Agency" has the meaning specified in the Indenture.
"Rating Agency Condition" has the meaning specified in the Indenture.
"Receivable" means each motor vehicle retail installment sale contract
sold by the Seller to the Purchaser pursuant to this Agreement and identified
on the Schedule of Receivables.
"Receivable Files" has the meaning specified in the Sale and Servicing
Agreement.
"Recoveries" has the meaning specified in the Sale and Servicing
Agreement.
"Representative" means Wachovia Capital Markets, LLC, as representative
of the Underwriters.
"Reserve Fund" has the meaning specified in the Sale and Servicing
Agreement.
"Reserve Fund Initial Deposit" has the meaning specified in Sale and
Servicing Agreement.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of __________ __, 200_, among the Issuer, the Depositor, the Seller
and the Master Servicer.
"Schedule of Initial Receivables" means the schedule of Receivables
attached as Schedule A.
"Schedule of Receivables" means the Schedule of Initial Receivables, as
supplemented by one or more Schedules of Subsequent Receivables.
"Schedule of Subsequent Receivables" means any list of Subsequent
Receivables attached as Schedule A to the related First-Tier Subsequent
Assignment.
"Securities" means the Notes and the Certificates.
"Securities Act" has the meaning specified in the Sale and Servicing
Agreement.
"Seller" means Wachovia Bank, in its capacity as seller of the
Receivables under this Agreement, and its successors in such capacity.
"Seller Information" means the information set forth in the Prospectus
under the headings "Summary - Principal Parties - Seller and Master Servicer",
"Risk Factors - Geographic concentration may result in more risk to you", "The
Receivables Pool", "The Seller" and "Material Legal Issues Relating to the
Receivables".
"Simple Interest Receivable" has the meaning specified in the Sale and
Servicing Agreement.
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"Standard & Poor's" has the meaning specified in the Indenture.
"State" has the meaning specified in the Indenture.
"Structural Term Sheet" has the meaning specified in the Underwriting
Agreement.
"Subsequent Cutoff Date" has the meaning specified in the Sale and
Servicing Agreement.
"Subsequent Receivables" has the meaning specified in the Sale and
Servicing Agreement.
"Subsequent Receivables Purchase Price" means, with respect to any
Subsequent Receivables to be sold, transferred, assigned and otherwise
conveyed to the Purchaser on the related Subsequent Transfer Date, the
Principal Balance of such Subsequent Receivables as of the related Subsequent
Cutoff Date, plus any premium or minus any discount agreed upon by the Seller
and the Purchaser.
"Subsequent Transfer Date" has the meaning specified in the Sale and
Servicing Agreement.
"Term Sheet" means any term sheet prepared by the Purchaser relating to
the public offering of the Underwritten Notes by the Purchaser.
"Trust Agreement" means the amended and restated trust agreement, dated
as of __________ __, 200_, between the Depositor and the Owner Trustee.
"Trustee" means either the Owner Trustee or the Indenture Trustee, as the
context requires.
"UCC" has the meaning specified in the Indenture.
"Underwriters" means the underwriters named in Schedule A to the
Underwriting Agreement.
"Underwriting Agreement" means the underwriting agreement, dated
__________ __, 200_, between PASS and the Representative.
"Underwritten Notes" means the Class A Notes.
"United States" has the meaning specified in the Indenture.
"Wachovia Bank" has the meaning specified in the Sale and Servicing
Agreement.
"Yield Supplement Account" has the meaning specified in the Sale and
Servicing Agreement.
"Yield Supplement Account Initial Deposit" has the meaning specified in
the Sale and Servicing Agreement.
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Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Indenture or the Sale and Servicing
Agreement, as the case may be.
(b) With respect to all terms in this Agreement, unless the context
otherwise requires: (i) a term has the meaning assigned to it; (ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time to time in the United States; (iii) "or" is not exclusive; (iv)
"including" means including without limitation; (v) words in the singular
include the plural and words in the plural include the singular; (vi) any
agreement, document, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, 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, Schedule and Exhibit references contained in this Agreement are
references to Sections, subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified; (x) references to "writing" include
printing, typing, lithography and other means of reproducing words in a
visible form; and (xi) the term "proceeds" has the meaning set forth in the
applicable UCC.
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ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Sale and Conveyance of Receivables. On the Closing Date and
on each Subsequent Transfer Date, subject to the terms and conditions of this
Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Receivables set forth in the related
Schedule of Initial Receivables or Schedule of Subsequent Receivables, as
applicable and the other property relating thereto (as described below).
(a) Subject to satisfaction of the conditions set forth in Section
4.01(a), on the Closing Date, and simultaneously with the transactions to be
consummated pursuant to the Indenture, the Sale and Servicing Agreement and
the Trust Agreement, the Seller shall, pursuant to the First-Tier Initial
Assignment, sell, transfer, assign and otherwise convey to the Purchaser, and
the Purchaser hereby purchases from the Seller, without recourse (subject to
the Seller's obligations hereunder), all of the right, title and interest of
the Seller in, to and under, whether now owned or existing or hereafter
acquired or arising, in, to and under the following:
(i) the Initial Receivables and all amounts due and collected on or
in respect of the Initial Receivables (including proceeds of the
repurchase of Initial Receivables by the Seller pursuant to Section
3.03(c)) after the Initial Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Initial Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) all proceeds from claims on or refunds of premiums of any
physical damage or theft insurance policies and extended warranties
covering such Financed Vehicles and any proceeds or refunds of premiums
of any credit life or credit disability insurance policies relating to
the Initial Receivables, the related Financed Vehicles or the related
Obligors;
(iv) the Receivable Files that relate to the Initial Receivables;
(v) any proceeds of Dealer Recourse that relate to the Initial
Receivables;
(vi) the right to realize upon any property (including the right to
receive future Net Liquidation Proceeds and Recoveries) that shall have
secured an Initial Receivable and have been repossessed by or on behalf
of the Seller; and
(vii) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing, and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all accounts, accounts receivable, general intangibles, chattel
paper, documents, money, investment property, deposit accounts, letters
of credit, letter of credit rights, insurance proceeds, condemnation
awards, notes, drafts, acceptances, rights to payment of any and every
kind and other forms of obligations and receivables,
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instruments and other property which at any time constitute all or part
of or are included in the proceeds of any of the foregoing.
(b) Subject to the satisfaction of the conditions set forth in Section
4.01(b), the Depositor shall, pursuant to a First-Tier Subsequent Assignment,
irrevocably sell, transfer, assign and otherwise convey to the Issuer, without
recourse (subject to the obligations of the Depositor set forth herein), all
right, title and interest of the Depositor, whether now owned or existing or
hereafter acquired or arising, in, to and under the following:
(i) the Subsequent Receivables listed on the related Schedule of
Subsequent Receivables and all amounts due and collected on or in respect
of the Subsequent Receivables (including proceeds of the repurchase of
Subsequent Receivables by the Seller pursuant to Section 3.03(c)) after
the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Subsequent Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) all proceeds from claims on or refunds of premiums of any
physical damage or theft insurance policies and extended warranties
covering such Financed Vehicles and any proceeds of or refunds of
premiums of any credit life or credit disability insurance policies
relating to the Subsequent Receivables, the related Financed Vehicles or
the related Obligors;
(iv) the Receivable Files that relate to the Subsequent Receivables;
(v) any proceeds of Dealer Recourse that relate to the Subsequent
Receivables;
(vi) the right to realize upon any property (including the right to
receive future Net Liquidation Proceeds and Recoveries) that shall have
secured a Subsequent Receivable and have been repossessed by or on behalf
of the Seller;
(vii) all of the Seller's rights under the related First-Tier
Subsequent Assignment; and
(viii) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing, and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all accounts, accounts receivable, general intangibles, chattel
paper, documents, money, investment property, deposit accounts, notes,
drafts, acceptances, letters of credit, letter of credit rights,
insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments
and other property which at any time constitutes all or part of, or is
included in, the proceeds of any of the foregoing.
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(c) In connection with each of the foregoing conveyances, the Seller
further agrees, at its own expense, on or prior to the Closing Date (in the
case of the Initial Receivables) or the related Subsequent Transfer Date (in
the case of the Subsequent Receivables) to (i) annotate and indicate in its
books, records and computer files that the related Receivables have been sold
and transferred to the Purchaser pursuant to this Agreement, (ii) deliver to
the Purchaser a computer file or printed or microfiche list of the Schedule of
Initial Receivables or, in the case of Subsequent Receivables, the related
Schedule of Subsequent Receivables containing a true and complete list of the
related Receivables, identified by account number and by the Principal Balance
as of the related Cutoff Date, each of which files or lists shall be marked as
Schedule A and is hereby incorporated into and made a part of this Agreement
and (iii) deliver or cause to be delivered the related Receivable Files to or
upon the order of the Purchaser.
(d) The parties hereto intend that each conveyance of Receivables and
related property hereunder be a sale and not a loan. In the event that any
conveyance hereunder is for any reason not considered a sale, including in the
event of an insolvency proceeding with respect to the Seller or any of the
Seller's properties, the Seller hereby grants to the Purchaser a first
priority perfected security interest in all of the Seller's right, title and
interest in, to and under the related Receivables, and all other property
conveyed hereunder and all proceeds of the foregoing. The parties intend that
this Agreement constitute a security agreement under applicable law. Such
grant is made to secure the payment of all amounts payable hereunder,
including the Initial Receivables Purchase Price and any Subsequent
Receivables Purchase Price. If any such conveyance is for any reason
considered to be a loan and not a sale, the Seller consents to the Purchaser
transferring such security interest in favor of the Indenture Trustee and
transferring the obligation secured thereby to the Indenture Trustee.
(e) The Seller and the Purchaser intend that the (i) FDIC Rule shall
apply to the transactions contemplated by this Agreement and the other Basic
Documents and (ii) transactions contemplated by this Agreement and the other
Basic Documents, taken as a whole, constitute a "securitization" within the
meaning of the FDIC Rule.
Section 2.02. Purchase Price; Payments on the Receivables.
(a) On the Closing Date, in exchange for the Receivables and other assets
described in Section 2.01(a), the Purchaser shall pay the Seller the Initial
Receivables Purchase Price in cash or immediately available funds. The
Purchaser, as set forth in the Sale and Servicing Agreement, shall deposit,
from funds it receives from the sale of the Notes and Certificates, the (i)
Reserve Fund Initial Deposit into the Reserve Fund, (ii) Yield Supplement
Account Initial Deposit into the Yield Supplement Account, (iii) Pre-Funding
Account Initial Deposit into the Pre-Funding Account and (iv) the Maximum
Negative Carry Amount into the Negative Carry Account, each of which amounts
shall be an asset of the Issuer. PASS Holding shall receive and shall be the
Holder of, the Certificates.
(b) On each Subsequent Transfer Date, in exchange for the Subsequent
Receivables and the other property related thereto described in Section
2.01(b) to be sold, transferred, assigned and otherwise conveyed to the
Purchaser on such Subsequent Transfer Date, the Purchaser shall pay to or upon
the order of the Seller, the related Subsequent Receivables Purchase Price in
cash. Such Subsequent Receivables Purchase Price shall be an amount equal
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to the funds it receives from the Pre-Funding Account pursuant to Section
4.08(a) of the Sale and Servicing Agreement, relating to the sale of such
Subsequent Receivables, and payments relating to increases in the value of the
Certificate (as more fully described in Section 2 of the Purchase Agreement)
due to such Subsequent Receivables, less, the sum of (i) the Reserve Fund
Subsequent Deposit, which will be deposited into the Reserve Fund and (ii) the
Yield Supplement Account Subsequent Deposit, if any, which will be deposited
into the Yield Supplement Account, each of which amounts shall be an asset of
the Issuer.
(c) The Purchaser shall be entitled to, and shall convey such right to
the Issuer pursuant to the Sale and Servicing Agreement, all amounts due and
collected on or in respect of the Receivables received after the related
Cutoff Date or Dates.
Section 2.03. Transfer of Receivables. Pursuant to the Sale and Servicing
Agreement, the Purchaser will assign all of its right, title and interest in,
to and under the Receivables and other assets described in Sections 2.01(a)
and 2.01(b) to the Issuer. The parties hereto acknowledge that the Issuer will
pledge its rights in, to and under the Receivables and other assets described
in Sections 2.01(a) and 2.01(b) to the Indenture Trustee pursuant to the
Indenture. The Purchaser shall have the right to assign its interest under
this Agreement as may be required to effect the purposes of the Sale and
Servicing Agreement, without the consent of the Seller, and the Issuer as
assignee shall succeed to the rights hereunder of the Purchaser.
Section 2.04. Examination of Receivable Files. The Seller will make the
Receivable Files available to the Purchaser or its agent for examination at
the Seller's offices or such other location as otherwise shall be agreed upon
by the Purchaser and the Seller.
Section 2.05. Expenses. The Seller will reimburse the Purchaser for
certain of the expenses of the Purchaser in connection with the issuance and
delivery of the Securities and sale of the Notes, including: (i) expenses
incident to the printing, reproducing and distributing of the Term Sheet if
any, the Preliminary Prospectus and the Prospectus, (ii) any fees charged by
Xxxxx'x and Standard & Poor's in connection with the rating of the Notes,
(iii) the fees of DTC in connection with the book-entry registration of the
Notes, (iv) the reasonable expenses incurred by the Purchaser in connection
with the initial qualification of the Underwritten Notes for sale under the
laws of such jurisdictions in the United States as the Purchaser or the
Representative may designate, (v) the fees and disbursements of the Trustees
and their respective counsel, (vi) the fees and disbursements of Sidley Austin
llp, counsel to the Purchaser, in connection with the purchase of the
Receivables hereunder and the issuance and delivery of the Securities and sale
of the Underwritten Notes and (vii) the SEC registration fee in the amount
equal to the sum of the product of (a) _____________ and (b) $_______________.
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ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date of this
Agreement, the Closing Date and as of each Subsequent Transfer Date that:
(a) Organization and Good Standing. The Purchaser has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted,
and had at all relevant times, and has, power, authority and legal right
to acquire, own and purchase the Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in each jurisdiction in
which the failure to so qualify or to obtain such licenses and approvals
would, in the reasonable judgment of the Purchaser, materially and
adversely affect the performance by the Purchaser of its obligations
under, or the validity or enforceability of, this Agreement.
(c) Power and Authority. The Purchaser has the power and authority
to execute and deliver, and perform its obligations under, this Agreement
and each other Basic Document to which it is a party. The Purchaser has
full power and authority to sell and assign the property listed in
Section 2.01(a) that it is acquiring from the Seller and shall sell and
assign to and deposit with the Issuer such property and shall duly
authorize such sale and assignment by all necessary limited liability
company action; and the execution, delivery and performance of this
Agreement and each other Basic Document to which the Purchaser is a party
has been duly authorized by the Purchaser by all necessary limited
liability company action.
(d) No Violation. The execution, delivery and performance by the
Purchaser of this Agreement and of the purchase of the Receivables and
the consummation of the transactions contemplated hereby and by each
other Basic Document to which it is a party and the fulfillment of the
terms hereof and thereof will not conflict with, result in any breach of
any of the terms and provisions of, nor constitute (with or without
notice or lapse of time or both) a default under, the certificate of
formation or limited liability company agreement of the Purchaser, nor
conflict with or violate any of the material terms or provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, any indenture, agreement or other instrument to which the
Purchaser is a party or by which it shall be bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other
than Liens created by this Agreement and the other Basic Documents); nor
violate any law or, to the Purchaser's knowledge, any order, rule or
regulation applicable to the Purchaser of any court or of any federal or
State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the
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Purchaser or its properties, which breach, default, conflict, Lien or
violation would have a material adverse effect on the earnings, business
affairs or business prospects of the Purchaser or on the ability of the
Purchaser to perform its obligations under this Agreement.
(e) No Proceedings. There are no proceedings or investigations
pending, or to the Purchaser's knowledge, threatened against the
Purchaser, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Purchaser
or its properties: (i) asserting the invalidity of this Agreement or any
other Basic Document to which it is a party, (ii) seeking to prevent the
issuance and delivery of the Securities, the sale of the Notes or the
consummation of any of the transactions contemplated by this Agreement or
any other Basic Document to which the Purchaser is a party or (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations under, or the
validity or enforceability of, this Agreement or any other Basic Document
to which it is a party.
Section 3.02. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as of the date of this
Agreement, the Closing Date and as of each Subsequent Transfer Date that:
(a) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a national banking association under
the laws of the United States and continues to hold a valid certificate
to do business as such, and has the power to own its assets and to
transact the business in which it is currently engaged. The Seller is
duly authorized to transact business and has obtained all necessary
licenses and approvals, and is in good standing in each jurisdiction in
which the character of the business transacted by it or any properties
owned or leased by it requires such authorization.
(b) Power and Authority. The Seller has the power and authority to
execute and deliver and perform its obligations under this Agreement and
each other Basic Document to which the Seller is a party, and the
execution, delivery and performance of this Agreement and each other
Basic Document to which the Seller is a party has been duly authorized by
the Seller. When executed and delivered, this Agreement and the other
Basic Documents to which the Seller is a party will constitute legal,
valid and binding obligations of the Seller enforceable in accordance
with their respective terms, except that such enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or
affecting creditors generally, and creditors of national banking
associations and financial institutions the accounts of which are insured
by the Federal Deposit Insurance Corporation in particular, and to
general equitable principles (regardless of whether considered in a
proceeding in equity or at law), including concepts of commercial
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief.
(c) No Violation. The execution, delivery and performance by the
Seller of this Agreement and the sale of the Receivables, the
consummation of the transactions contemplated hereby and by each other
Basic Document to which it is a party and the
12
fulfillment of the terms hereof and thereof will not conflict with,
result in a breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, its
articles of incorporation or bylaws, nor conflict with or violate any of
the material terms or provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture,
agreement or other instrument to which it is a party or by which it shall
be bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement
or other instrument (other than this Agreement); nor violate any law or,
to its knowledge, any order, rule or regulation applicable to it of any
court or of any federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over it or its
properties, which breach, default, conflict, Lien or violation would have
a material adverse effect on the Seller's earnings, business affairs or
business prospects or on the ability of the Seller to perform its
obligations under this Agreement.
(d) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any other
Basic Document to which the Seller is a party, (ii) seeking to prevent
the issuance and delivery of the Securities, the sale of the Notes or the
consummation of any of the transactions contemplated by this Agreement or
any other Basic Document to which the Seller is a party or (iii) seeking
any determination or ruling that might materially and adversely affect
the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement or any other Basic Document to which
the Seller is a party.
(e) Principal Executive Office. The chief executive office of the
Seller is One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000.
(f) No Consents. The Seller is not required to obtain the consent of
any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority,
bureau or agency in connection with the execution, delivery, performance,
validity, or enforceability of this Agreement or any other Basic Document
to which it is a party that has not already been obtained.
(g) Other Information. No certificate of an officer, statement or
document furnished in writing or report delivered pursuant to the terms
hereof by the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate,
statement, document or report not misleading.
(h) Solvency. The sale of the Receivables to the Purchaser is not
being made with any intent to hinder, delay or defraud any of its
creditors. The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Receivables, nor does the Seller
anticipate any pending insolvency.
13
(i) Official Record. This Agreement is and shall remain at all times
prior to the termination hereof an official record of the Seller as
referred to in Section 13(e) of the Federal Deposit Insurance Act, as
amended by 12 U.S.C. Section 1823(e).
(j) Prospectus. As of the date of the Prospectus and as of the
Closing Date, the Seller Information does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Section 3.03. Representations and Warranties as to the Receivables.
(a) Eligibility of Receivables. The Seller makes the representations and
warranties set forth in Exhibit A with respect to the Receivables, on which
the Purchaser relies in accepting the Receivables and in transferring the
Receivables to the Issuer under the Sale and Servicing Agreement and on which
the Issuer relies in pledging the same to the Indenture Trustee pursuant to
the Indenture. Except as otherwise provided, such representations and
warranties speak as of the date of execution and delivery of this Agreement,
the Closing Date (in the case of the Initial Receivables) and as of each
Subsequent Transfer Date (in the case of the related Subsequent Receivables),
but shall survive the sale, transfer and assignment of the Receivables to the
Purchaser, the subsequent sale, transfer and assignment of the Receivables by
the Purchaser to the Issuer pursuant to the Sale and Servicing Agreement and
the pledge of the Receivables by the Issuer to the Indenture Trustee pursuant
to the Indenture.
(b) Notice of Breach. The Purchaser, the Seller, the Issuer, the Owner
Trustee or the Indenture Trustee, as the case may be, shall inform the other
parties promptly, in writing, upon discovery of any breach of the Seller's
representations and warranties pursuant to Section 3.03(a) which materially
and adversely affects the interests of the Noteholders in any Receivable.
(c) Repurchase of Receivables. In the event of a breach of any
representation or warranty set forth pursuant to Section 3.03(a) which
materially and adversely affects the interests of the Purchaser, the Issuer or
the Noteholders in any Receivable that shall not have been cured by the close
of business on the last day of the Collection Period which includes the 30th
day after the date on which the Seller becomes aware of, or receives written
notice from the Master Servicer, the Purchaser, the Issuer or any Noteholder
of such breach, the Seller shall repurchase such Receivable from the Issuer on
the related Deposit Date. This repurchase obligation shall apply to all
representations and warranties contained in Section 3.03(a) except as
otherwise noted whether or not the Seller or the Purchaser has knowledge of
the breach at the time of the breach or at the time the representations and
warranties were made. In consideration of the repurchase of any such
Receivable the Seller shall remit an amount equal to the Purchase Amount in
respect of such Receivable to the Issuer in the manner set forth in the Sale
and Servicing Agreement. In the event that, as of the date of execution and
delivery of this Agreement, any Liens or claims shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be prior to, or equal or coordinate with, the Lien granted by the
related Receivable (whether or not the Seller has knowledge thereof), which
Liens or claims shall not have been satisfied or otherwise released in full as
of the Closing Date, the Seller shall repurchase such Receivable on the terms
and in the manner specified above. Upon any such repurchase, the Purchaser
shall, without further action, be deemed to transfer, assign, set-over and
otherwise
14
convey to the Seller, without recourse, representation or warranty, all the
right, title and interest of the Purchaser in, to and under such repurchased
Receivable, all other related assets described in Section 2.01(a) or 2.01(b)
and all monies due or to become due with respect thereto and all proceeds
thereof. The Purchaser, the Issuer, the Owner Trustee or the Indenture
Trustee, as applicable, shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by the Seller to effect the conveyance of such Receivable pursuant
to this Section. The sole remedy of the Purchaser, the Issuer, the Trustees or
the Noteholders with respect to a breach of the Seller's representations and
warranties pursuant to Section 3.03(a) or with respect to the existence of any
such Liens or claims shall be to require the Seller to repurchase the related
Receivables pursuant to this Section.
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ARTICLE FOUR
CONDITIONS
Section 4.01. Conditions to Obligation of the Purchaser.
(a) The obligation of the Purchaser to purchase the Initial Receivables
from the Seller on the Closing Date is subject to the satisfaction of the
following conditions:
(i) Representations and Warranties True. The representations and
warranties of the Seller contained herein and in the other Basic
Documents shall be true and correct on the Closing Date with the same
effect as if made on the Closing Date, and each of the Seller and the
Master Servicer shall have performed all obligations to be performed by
it hereunder and under the other Basic Documents on or before the Closing
Date.
(ii) Computer Files Marked. The Seller shall, at its own expense, on
or before the Closing Date, indicate in its computer files that the
Initial Receivables have been sold to the Purchaser pursuant to this
Agreement and deliver to the Purchaser an Officer's Certificate
confirming that its computer files have been marked pursuant to this
subsection, and shall deliver to the Purchaser the Schedule of Initial
Receivables, certified by an authorized officer of the Seller to be true,
correct and complete.
(iii) Documents to be Delivered. The Purchaser shall have received
the following, all of which shall be dated as of the Closing Date or such
other date as specified:
(A) the Schedule of Initial Receivables;
(B) the First-Tier Initial Assignment;
(C) an Officer's Certificate of the Seller and the Master
Servicer, substantially in the form of Exhibit D;
(D) opinions of counsel for the Seller and the Master Servicer,
in the aggregate substantially in the form of Exhibit E, addressed
to the Purchaser and the Underwriters;
(E) copies of resolutions of the board of directors of the
Seller approving the execution, delivery and performance of the
other Basic Documents to which the Seller is a party, and the
performance of the transactions contemplated hereunder and
thereunder, certified by the Secretary or an Assistant Secretary of
the Seller;
(F) copies of the articles of association of the Seller,
together with all amendments, revisions and supplements thereto,
certified by the Comptroller of the Currency as of a recent date, to
the effect that the Seller has been duly organized, is duly
authorized to transact business and is validly existing as a banking
institution in good standing;
16
(G) UCC search reports from the appropriate offices in the
State of North Carolina as to the Seller;
(H) a letter from ____________ as to certain financial and
statistical information in the Prospectus, which letter shall be
acceptable in form and substance to the Purchaser;
(I) reliance letters to each opinion of counsel to the Seller
or the Master Servicer delivered to Standard & Poor's or Xxxxx'x in
connection with the purchase of the Initial Receivables hereunder or
the issuance of the Securities or the sale of the Notes;
(J) the Seller shall record and file, at its own expense, on or
prior to the Closing Date, a financing statement in each
jurisdiction in which such filing is required by applicable law,
executed by the Seller, as seller or debtor, and naming the
Purchaser, as purchaser or secured party, and the Issuer, as
assignee, naming the Receivables and the related property described
in Section 2.01 as collateral, meeting the requirements of the laws
of each such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of the
Receivables to the Purchaser; and the Seller shall deliver a
file-stamped copy, or other evidence satisfactory to the Purchaser
of such filing, to the Purchaser on the Closing Date; and
(K) such other documents, certificates and opinions as may be
requested by the Purchaser or its counsel.
(iv) Execution of Basic Documents. The Basic Documents shall have
been executed and delivered by the parties thereto.
(v) Rating of the Notes. (i) Xxxxx'x and Standard & Poor's,
respectively, shall have assigned ratings of (A) "Prime-1" and "A-1+" to
the Class A-1 Notes, (B) "Aaa" and "AAA" to the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class A-5 Notes and (C)
"Baa3" and "BBB" to the Class B Notes.
(vi) Other Transactions. The transactions contemplated by the Basic
Documents shall be consummated on the Closing Date.
(vii) No Termination of the Underwriting Agreement. The Purchaser
may terminate this Agreement at any time at or prior to the Closing Date
if (i) the Underwriting Agreement has been terminated in accordance with
its terms, (ii) there has been, since the time of execution of the
Underwriting Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Purchaser or the Seller, whether or
not arising in the ordinary course of business, (iii) there has occurred
any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic
conditions, in each case the effect of which
17
is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to market the Underwritten Notes or to
enforce contracts for the sale of the Underwritten Notes, (iv) trading in
any securities of the Purchaser, the Seller or any of their respective
Affiliates has been suspended or materially limited by the Commission or
if trading generally on the American Stock Exchange, the New York Stock
Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental
authority, (v) a material disruption has occurred in commercial banking
or securities settlement or clearing services in the United States or
(vi) if a banking moratorium has been declared by Federal, North Carolina
or New York authorities.
(b) The obligation of the Purchaser to purchase Subsequent Receivables
from the Seller on the related Subsequent Transfer Date is subject to the
satisfaction of the following conditions:
(i) Representations and Warranties True. The representations and
warranties of the Seller contained herein and in the other Basic
Documents shall be true and correct on such Subsequent Transfer Date with
the same effect as if made on such Subsequent Transfer Date, and each of
the Seller and the Master Servicer shall have performed all obligations
to be performed by it hereunder and under the other Basic Documents on or
before such Subsequent Transfer Date.
(ii) Computer Files Marked. The Seller shall, at its own expense, on
or before such Subsequent Transfer Date, indicate in its computer files
that the related Receivables have been sold to the Purchaser pursuant to
this Agreement and deliver to the Purchaser an Officer's Certificate
confirming that its computer files have been marked pursuant to this
subsection, and shall deliver to the Purchaser the related Schedule of
Subsequent Receivables, certified by an authorized officer of the Seller
to be true, correct and complete.
(iii) Documents to be Delivered. The Purchaser shall have received
the following, all of which shall be dated as of such Subsequent Transfer
Date or such other date as specified:
(A) the related Schedule of Subsequent Receivables;
(B) the related First-Tier Subsequent Assignment;
(C) within ten days of the related Subsequent Transfer Date,
the Seller shall record and file, at its own expense, a UCC
financing statement in each jurisdiction in which required by
applicable law, executed by the Seller, as seller or debtor, and
naming the Purchaser, as purchaser or secured party, naming such
Subsequent Receivables and the other property conveyed under Section
2.01(b) as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and
18
conveyance of such Subsequent Receivables to the Purchaser; and the
Seller shall deliver a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the Purchaser
within ten days of the related Subsequent Transfer Date;
(D) an Officer's Certificate of the Seller and Master Servicer,
substantially in the form of Exhibit D; and
(E) such other documents, certificates and opinions as may be
requested by the Purchaser or its counsel, including a letter from
KPMG LLP as to certain information as to the aggregate
characteristics of the Initial Receivables and all Subsequent
Receivables in a report on Form 8-K that the Purchaser shall file
with the Commission within 15 days after the end of the Pre-Funding
Period.
(iv) Satisfaction of Sale and Servicing Agreement Conditions. All of
the conditions to the transfer of the Subsequent Receivables from the
Purchaser to the Trust specified in Section 2.01(d) of the Sale and
Servicing Agreement shall have been satisfied.
Section 4.02. Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Initial Receivables to the Purchaser on the Closing
Date and any Subsequent Receivables to the Purchaser on the related Subsequent
Transfer Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser contained herein and in the other Basic
Documents shall be true and correct on the Closing Date or the related
Subsequent Transfer Date, as the case may be, with the same effect as if
then made, and the Purchaser shall have performed all obligations to be
performed by it hereunder and under the other Basic Documents on or
before the Closing Date or the related Subsequent Transfer Date, as the
case may be.
(b) Payment of Initial and Subsequent Receivables Purchase Price. In
consideration of the sale of the Receivables from the Seller to the
Purchaser as provided in Section 2.01, (i) on the Closing Date the
Purchaser shall have paid to the Seller an aggregate amount equal to the
Initial Receivables Purchase Price, and (ii) on each Subsequent Transfer
Date the Purchaser shall have paid to the Seller an aggregate amount
equal to the related Subsequent Receivables Purchase Price.
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ARTICLE FIVE
COVENANTS OF THE SELLER
Section 5.01. Protection of Right, Title and Interest in, to and Under
the Receivables.
(a) The Seller, at its expense, shall cause this Agreement and all
financing statements and continuation statements and any other necessary
documents covering the Purchaser's right, title and interest in, to and under
the Receivables and other property conveyed by the Seller to the Purchaser
hereunder to be promptly authorized, recorded, registered and filed, and at
all times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Purchaser hereunder to the Receivables and such
other property. The Seller shall deliver to the Purchaser file-stamped copies
of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. The Purchaser shall cooperate fully with the Seller in connection with
the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in its name,
identity or organizational structure which would make any financing statement
or continuation statement filed in accordance with Section 4.01(a)(iii)(J) or
4.01(b)(iii)(C) seriously misleading within the meaning of the UCC as in
effect in the applicable State, the Seller shall give the Purchaser notice of
any such change and within 30 days after such change shall authorize, execute
and file such financing statements or amendments as may be necessary to
continue the perfection of the Purchaser's security interest in the
Receivables and the proceeds thereof.
(c) The Seller shall give the Purchaser written notice within 60 days of
any relocation of any office from which the Seller keeps records concerning
the Receivables or of its principal executive office or its jurisdiction of
organization and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and within 60 days after such relocation shall authorize, execute
and file such financing statements or amendments as may be necessary to
continue the perfection of the interest of the Purchaser in the Receivables
and the proceeds thereof. The Seller shall at all times maintain its
jurisdiction of organization, its principal place of business, its chief
executive office and the location of the office where the Receivables Files
and any accounts and records relating to the Receivables are kept within the
United States.
(d) The Seller shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know
at any time the status of such Receivable, including payments and recoveries
made and payments owing (and the nature of each) and (ii) reconciliation
between payments or recoveries on (or with respect to) each Receivable.
(e) The Seller shall maintain its computer systems so that, from and
after the time of the transfer of the Receivables to the Purchaser pursuant to
this Agreement, the Seller's master computer records (including any back-up
archives) that refer to a Receivable shall indicate
20
clearly and unambiguously that such Receivable is owned by the Purchaser (or,
upon transfer of the Receivables to the Issuer, by the Issuer). Indication of
the Purchaser's ownership of a Receivable shall be deleted from or modified on
the Seller's computer systems when, and only when, such Receivable shall have
been paid in full or repurchased by the Seller.
(f) If at any time the Seller shall propose to sell, grant a security
interest in or otherwise transfer any interest in any motor vehicle retail
installment sale contract to any prospective purchaser, lender or other
transferee, the Seller shall give to such prospective purchaser, lender or
other transferee computer tapes, compact disks, records or print-outs
(including any restored from back-up archives) that, if they shall refer in
any manner whatsoever to any Receivable, shall indicate clearly and
unambiguously that such Receivable has been sold and is owned by the Purchaser
(or, upon transfer of the Receivables to the Issuer, the Issuer), unless such
Receivable has been paid in full or repurchased by the Seller.
(g) The Seller shall permit the Purchaser and its agents at any time
during normal business hours to inspect, audit and make copies of and
abstracts from the Seller's records regarding any Receivable, upon reasonable
prior notice.
(h) If the Seller has repurchased one or more Receivables from the
Purchaser or the Issuer pursuant to Section 3.03(c), the Seller shall, upon
request, furnish to the Purchaser, within ten Business Days, a list of all
Receivables (by Receivable number and name of Obligor) then owned by the
Purchaser or the Issuer, together with a reconciliation of such list to the
Schedule of Receivables.
Section 5.02. Security Interests. Except for the conveyances hereunder,
the Seller covenants that it will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on
any Receivable, whether now existing or hereafter created, or any interest
therein; the Seller will immediately notify the Purchaser of the existence of
any Lien on any Receivable and, in the event that the interests of the
Noteholders in such Receivable are materially and adversely affected, such
Receivable shall be repurchased from the Purchaser by the Seller in the manner
and with the effect specified in Section 3.03(c), and the Seller shall defend
the right, title and interest of the Purchaser and its assigns in, to and
under the Receivables, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Seller; provided,
however, that nothing in this subsection shall prevent or be deemed to
prohibit the Seller from suffering to exist upon a Receivable any Lien for
municipal or other local taxes if such taxes shall not at the time be due and
payable or if the Seller shall currently be contesting the validity of such
taxes in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
Section 5.03. Delivery of Payments. The Seller covenants and agrees to
deliver in kind upon receipt to the Master Servicer under the Sale and
Servicing Agreement all payments received by or on behalf of the Seller in
respect of the Receivables as soon as practicable after receipt thereof by the
Seller.
Section 5.04. No Impairment. The Seller covenants that it shall take no
action, nor omit to take any action, which would impair the rights of the
Purchaser, the Issuer or the Noteholders
21
in any Receivable, nor shall it, except as otherwise provided in this
Agreement or the Sale and Servicing Agreement, reschedule, revise or defer
payments due on any Receivable.
Section 5.05. Costs and Expenses. The Seller shall pay all reasonable
costs and expenses incurred in connection with the perfection of the
Purchaser's right, title and interest in, to and under the Receivables.
Section 5.06. Sale. The Seller agrees to treat the conveyances hereunder
for all purposes (including financial accounting purposes) as an absolute
transfer on all relevant books, records, financial statements and related
documents.
Section 5.07. Hold Harmless. The Seller shall protect, defend, indemnify
and hold the Purchaser and the Issuer and their respective assigns and their
attorneys, accountants, employees, officers and directors harmless from and
against all losses, costs, liabilities, claims, damages and expenses of every
kind and character, as incurred, resulting from or relating to or arising out
of (i) the inaccuracy, nonfulfillment or breach of any representation,
warranty, covenant or agreement made by the Seller in this Agreement, (ii) any
legal action, including any counterclaim, that has either been settled by the
litigants (which settlement, if the Seller is not a party thereto shall be
with the consent of the Seller) or has proceeded to judgment by a court of
competent jurisdiction, in either case to the extent it is based upon alleged
facts that, if true, would constitute a breach of any representation,
warranty, covenant or agreement made by the Seller in this Agreement, (iii)
any actions or omissions of the Seller or any employee or agent of the Seller
occurring prior to the Closing Date with respect to any Initial Receivable or
the related Financed Vehicle or occurring prior to the related Subsequent
Transfer Date with respect to any Subsequent Receivables or the related
Financed Vehicle or (iv) any failure of a Receivable to be originated in
compliance with all requirements of law. These indemnity obligations shall be
in addition to any obligation that the Seller may otherwise have.
22
ARTICLE SIX
INDEMNIFICATION
Section 6.01. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, each
Underwriter and each person, if any, who controls the Purchaser or any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Seller Information
or any similar information contained in each Collateral Term Sheet (if
any), each Structural Term Sheet (if any), all Computational Materials
(if any), the Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6.01(c)) any such settlement is effected with the written consent of the
Seller; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Purchaser or the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under clause (i) or (ii) above.
(b) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. Counsel to the
indemnified parties shall be selected by the Purchaser or the Representative,
subject to the consent of the indemnifying party (which consent shall not be
unreasonably withheld). An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or
23
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(c) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6.01(a)(ii) effected without
its written consent if such (i) settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii)
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii)
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(d) If recovery is not available under the provisions of this Section for
any reason other than as specified herein, or is insufficient to hold harmless
any indemnified party in respect of any losses, liabilities, claims, damages
and expenses herein, the indemnified parties shall be entitled to contribution
in respect of any losses, liabilities, claims, damages and expenses herein,
except to the extent that contribution is not permitted under Section 11(f) of
the Securities Act. In determining the amount of contribution to which the
indemnified parties are entitled, there shall be considered the relative
benefits received by each party, the parties' relative fault, which
incorporates, among other things, their respective knowledge, access to
information concerning the matter with respect to which the claim was asserted
and opportunity to correct and prevent any statement or omission, and any
other equitable considerations appropriate under the circumstances. The
parties hereto agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever, based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the other provisions of this Section, the relative
benefits received by the Underwriters shall be deemed to be in the same
proportion as the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate initial public offering price of the
Underwritten Notes.
24
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
25
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Purchaser and the Seller, without
the consent of any Noteholder, to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision herein
or to add any other provision with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the provisions of
this Agreement or the Sale and Servicing Agreement; provided, however, that
any such amendment shall not, as evidenced by an Opinion of Counsel to the
Seller delivered to the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time for any other
purpose by a written amendment duly executed and delivered by the Seller and
by the Purchaser; provided, however, that any such amendment that materially
adversely affects the interests of the Noteholders under the Indenture, the
Sale and Servicing Agreement or the Trust Agreement must be consented to by
the Holders of Notes evidencing not less than 51% of the Note Balance of the
Controlling Class of Notes. Promptly after the execution of any such
amendment, the Seller shall furnish written notification of the substance of
such amendment to the Owner Trustee, the Indenture Trustee and the Rating
Agencies.
Section 7.02. Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall
terminate, except for the indemnity obligations of the Seller as provided
herein, upon the termination of the Issuer as provided in the Trust Agreement.
SECTION 7.03. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.04. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or sent by telecopier, overnight courier or mailed by registered
mail, return receipt requested, in the case of the (i) Purchaser, to Pooled
Auto Securities Shelf LLC, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, Xxxxx
Xxxxxxxx, 00000-0000, Attention: Treasury ABS Department and (ii) Seller, to
Wachovia Bank, National Association, 000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Treasury Department; or, as
to either of such Persons, at such other address as shall be designated by
such Person in a written notice to the other Persons.
Section 7.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the
26
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 7.06. Further Assurances. The Seller and the Purchaser agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
or by the Issuer or the Indenture Trustee more fully to effect the purposes of
this Agreement, including the execution of any financing statements,
amendments, continuation statements or releases relating to the Receivables
for filing under the provisions of the UCC or other law of any applicable
jurisdiction.
Section 7.07. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Issuer, the
Indenture Trustee, the Noteholders or the Seller, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
Section 7.08. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 7.09. Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Issuer, the Indenture
Trustee, the Owner Trustee, the Noteholders and the Underwriters. Except as
otherwise provided in this Agreement, no other Person will have any right or
obligation hereunder.
Section 7.10. Headings. The Article and Section headings and the Table of
Contents herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
Section 7.11. Representations, Warranties and Agreements to Survive. The
respective agreements, representations, warranties and other statements by the
Seller and by the Purchaser set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the closing hereunder
of the transfers and assignments by the Seller to the Purchaser and by the
Purchaser to the Issuer and shall inure to the benefit of the Purchaser, the
Trustees and the Noteholders.
Section 7.12. No Proceedings. So long as this Agreement is in effect, and
for one year plus one day following its termination, the Seller agrees that it
will not file any involuntary petition or otherwise institute any bankruptcy,
reorganization arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or State bankruptcy law or similar law against
the Purchaser or the Issuer.
27
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 BANK, NATIONAL ASSOCIATION,
as Seller
By:
------------------------------------
Name:
Title:
POOLED AUTO SECURITIES SHELF LLC,
as Purchaser
By:
------------------------------------
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
[Original on file at Master Servicer's office]
SA-1
SCHEDULE B
LOCATION OF RECEIVABLE FILES
SB-1
EXHIBIT A
REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES
[Exhibit A to Sale and Servicing Agreement will be copied to here
once that Exhibit has been finalized]
A-1
EXHIBIT B
FORM OF FIRST-TIER INITIAL ASSIGNMENT
For value received, in accordance with the receivables purchase
agreement, dated as of __________ __, 200_ (the "Receivables Purchase
Agreement"), between Wachovia Bank, National Association (the "Seller") and
Pooled Auto Securities Shelf LLC (the "Purchaser"), the Seller does hereby
irrevocably sell, transfer, assign, set over and otherwise convey unto the
Purchaser, without recourse (subject to the obligations of the Seller herein
and in the Receivables Purchase Agreement), all right, title and interest of
the Seller in, to and under, whether now owned or existing or hereafter
acquired or arising, in, to and under the following
(i) the Initial Receivables listed on Schedule A hereto (the
"Initial Receivables") and all amounts due and received on or in respect
of the Initial Receivables (including proceeds of the repurchase of
Initial Receivables by the Seller pursuant to the Receivables Purchase
Agreement) after the Initial Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Initial Receivables and any other interest of
the Seller in such Financed Vehicles;
(iii) all proceeds from claims on or refunds of premiums of any
physical damage or theft insurance policies and extended warranties
covering the Financed Vehicles and any proceeds or refunds of premiums of
any credit life or credit disability insurance policies relating to the
Initial Receivables, the related Financed Vehicles or the related
Obligors;
(iv) the Receivable Files that relate to the Initial Receivables;
(v) any proceeds of Dealer Recourse;
(vi) the right to realize upon any property (including the right to
receive future Net Liquidation Proceeds and Recoveries) that shall have
secured an Initial Receivable and have been repossessed by or on behalf
of the Seller; and
(vii) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing, and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all accounts, accounts receivable, general intangibles, chattel
paper, documents, money, investment property, deposit accounts, letters
of credit, letter of credit rights, insurance proceeds, condemnation
awards, notes, drafts, acceptances, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are
included in the proceeds of any of the foregoing.
B-1
In the event that the foregoing sale, transfer, assignment and conveyance
is deemed to be a pledge, the Seller hereby grants to the Purchaser a first
priority security interest in all of the Seller's right to and interest in the
Initial Receivables and other property described in clauses (i) through (viii)
above to secure a loan deemed to have been made by the Purchaser to the Seller
in an amount equal to the sum of the initial principal amount of the Notes
plus accrued interest thereon.
THIS FIRST-TIER INITIAL ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS OF THE SELLER UNDER THIS
FIRST-TIER INITIAL ASSIGNMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
This First-Tier Initial Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Receivables Purchase Agreement and is to be governed by the
Receivables Purchase Agreement.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this First-Tier Initial
Assignment to be duly executed as of _________ __, 200_.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
X-0
XXXXXXX X
XXXX XX XXXXX-XXXX SUBSEQUENT ASSIGNMENT
For value received, in accordance with the receivables purchase
agreement, dated as of _________ __, 200_ (the "Receivables Purchase
Agreement"), between Wachovia Bank, National Association (the "Seller") and
Pooled Auto Securities Shelf LLC (the "Purchaser"), the Seller does hereby
irrevocably sell, transfer, assign, set over and otherwise convey unto the
Purchaser, without recourse (subject to the obligations of the Seller herein
and in the Receivables Purchase Agreement), all right, title and interest of
the Seller in, to and under, whether now owned or existing or hereafter
acquired or arising, in, to and under the following
(i) the Subsequent Receivables listed on Schedule A hereto (the
"Subsequent Receivables") and all amounts due and received on or in
respect of the Subsequent Receivables (including proceeds of the
repurchase of Subsequent Receivables by the Seller pursuant to the
Receivables Purchase Agreement) after the Subsequent Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Subsequent Receivables;
(iii) all proceeds from claims on or refunds of premiums of any
physical damage or theft insurance policies and extended warranties
covering the Financed Vehicles and any proceeds or refunds of premiums of
any credit life or credit disability insurance policies relating to the
Subsequent Receivables, the related Financed Vehicles or the related
Obligors;
(iv) the Receivable Files that relate to the Subsequent Receivables;
(v) any proceeds of Dealer Recourse;
(vi) the right to realize upon any property (including the right to
receive future Net Liquidation Proceeds and Recoveries) that shall have
secured an Initial Receivable and have been repossessed by or on behalf
of the Seller; and
(vii) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing, and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all accounts, accounts receivable, general intangibles, chattel
paper, documents, money, investment property, deposit accounts, letters
of credit, letter of credit rights, insurance proceeds, condemnation
awards, notes, drafts, acceptances, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are
included in the proceeds of any of the foregoing.
C-1
The Subsequent Cutoff Date with respect to each Subsequent Receivable is
____________, 200_.
The Seller hereby represents that as of the Subsequent Cutoff Date, the
aggregate Principal Balance of the Subsequent Receivables was $_________.
In the event that the foregoing sale, transfer, assignment and conveyance
is deemed to be a pledge, the Seller hereby grants to the Subsequent Purchaser
a first priority security interest in all of the Seller's right to and
interest in the Subsequent Receivables and other property described in clauses
(i) through (viii) above to secure a loan deemed to have been made by the
Purchaser to the Seller in an amount equal to the sum of the initial principal
amount of the Notes plus accrued interest thereon.
THIS FIRST-TIER SUBSEQUENT ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS OF THE
SELLER UNDER THIS FIRST-TIER SUBSEQUENT ASSIGNMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
This First-Tier Subsequent Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Receivables Purchase Agreement and is to be governed by the
Receivables Purchase Agreement.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this First-Tier Subsequent
Assignment to be duly executed as of ________ __, 200_.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
C-2
EXHIBIT D
WACHOVIA BANK, NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE PURSUANT TO
SECTION 4.01(a)(iii)(C) and (b)(iii)(D)
OF THE RECEIVABLES PURCHASE AGREEMENT
I, ______________, do hereby certify that I am a duly elected, qualified
and acting Vice President of Wachovia Bank, National Association, a national
banking association (the "Bank"), and that, as such, I am authorized to
execute this certificate on behalf of the Bank. Pursuant to Section
4.01(a)(iii)(B) of the receivables purchase agreement, dated as of _________
__, 200_ (the "Receivables Purchase Agreement"), between the Bank and Pooled
Auto Securities Shelf LLC ("PASS"), I hereby further certify on behalf of the
Bank as follows:
1. Each of the representations and warranties of the Bank contained or
incorporated by reference in Section 3.02 of the Receivables Purchase
Agreement and Section 6.01 of the Sale and Servicing Agreement is true and
correct on and as of the date hereof.
2. There is no litigation pending, or to my knowledge, threatened, which,
if determined adversely to the Bank, (i) would adversely affect the
enforceability of a material portion of the Receivables, the sale of the
Receivables, the execution, delivery or enforceability of the Basic Documents
to which the Bank is a party or the ability of the Bank to service and
administer the Receivables in accordance with the terms of the Sale and
Servicing Agreement, (ii) would breach the representations and warranties of
the Bank contained in or incorporated by reference in the Receivables Purchase
Agreement or the Sale and Servicing Agreement or (iii) is likely to have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Bank.
3. The Bank has complied with all agreements to which it is a party in
connection with the transactions contemplated by the Basic Documents to which
the Bank is a party, and has satisfied all the conditions on its part to be
performed or satisfied prior to the Closing Date.
4. No event of default in the performance of any of the Bank's covenants
or agreements under the Basic Documents to which the Bank is a party has
occurred and is continuing, nor has an event occurred which with the passage
of time or notice or both would become such an event of default.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Receivables Purchase Agreement.
D-1
IN WITNESS WHEREOF, I have signed by name as of this ____ day of ________
200_.
--------------------------------
Name:
Title:
D-2
EXHIBIT E
OPINION OF COUNSEL FOR WACHOVIA BANK
E-1
