EXECUTION COPY
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U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee,
WACHOVIA CAPITAL MARKETS, LLC,
as Auction Agent
and
WACHOVIA ASSET SECURITIZATION, INC.,
as Holder of the Certificates
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AUCTION AGENT AGREEMENT
Dated as of July 2, 2003
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Wachovia Asset Securitization, Inc.
Series 2003-HE2 Trust
Asset-Backed Notes, Series 2003-HE2
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TABLE OF CONTENTS
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Page
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Section 1. Definitions and Rules of Construction..............................1
1.1. Terms Defined by Reference to Indenture..........................1
1.2. Terms Defined Herein.............................................1
1.3. Rules of Construction............................................2
Section 2. The Auction........................................................3
2.1. Incorporation by Reference of Auction Procedures and Settlement
Procedures.......................................................3
2.2. Preparation of Each Auction; Maintenance of Existing Noteholder
Registry.........................................................3
2.3. All Hold Rates, Maximum Auction Rates, Class A-II-2 Net WAC Rate
and LIBOR........................................................5
2.4. Auction Schedule.................................................5
2.5. Changes in Auction Date..........................................6
2.6. Notices to Existing Noteholder...................................6
2.7. Broker-Dealers...................................................6
2.8. Access to and Maintenance of Auction Records.....................7
Section 3. Representations and Warranties of the Auction Agent................7
Section 4. The Auction Agent..................................................8
4.1. Duties and Responsibilities......................................8
4.2. Rights of the Auction Agent......................................8
4.3. Auction Agent's Disclaimer.......................................9
4.4. Compensation and Indemnification.................................9
Section 5. Miscellaneous......................................................9
5.1. Term of Agreement................................................9
5.2. Communications..................................................10
5.3. Entire Agreement.................................................11
5.4. Benefits........................................................11
5.5. Amendment, Waiver................................................11
5.6. Successor and Assign.............................................12
5.7. Severability....................................................12
5.8. Execution in Counterparts........................................12
5.9. Governing Law....................................................12
5.10. Indenture Trustee...............................................12
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EXHIBIT A LIST OF INITIAL BROKER-DEALERS.....................................A-1
EXHIBIT B FORM OF BROKER-DEALER AGREEMENT....................................B-1
EXHIBIT C NOTICE OF NOTES OUTSTANDING........................................C-1
EXHIBIT D SETTLEMENT PROCEDURES..............................................D-1
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AUCTION AGENT AGREEMENT
THIS AUCTION AGENT AGREEMENT, dated as of July 2, 2003 (the "Auction
Agent Agreement"), is being entered into among (i) U.S. Bank National
Association, acting not in its individual capacity but solely as Indenture
Trustee (together with any successors or assigns, the "Indenture Trustee") under
the Indenture (as defined herein), (ii) Wachovia Asset Securitization, Inc.,
solely as Holder of the Certificates ("WASI") and (iii) Wachovia Capital
Markets, LLC (together with its successors and assigns, the "Auction Agent'),
acting not in its individual capacity but solely as agent for the Indenture
Trustee.
Pursuant to the Indenture, dated as of July 2, 2003 (the "Indenture"),
by and among Wachovia Asset Securitization, Inc. 2003-HE2 Trust, as the issuer
(the "Issuer"), the Indenture Trustee and Wachovia Bank, National Association,
as paying agent (the "Paying Agent"), the Issuer will cause the Indenture
Trustee to authenticate and deliver up to $1,250,000,000 aggregate principal
amount of Wachovia Asset Securitization, Inc. Asset-Backed Notes, Series
2003-HE2 (the "Notes"). The Note Rate for the Class A-II-2 Notes (the "Auction
Notes") will be based on the Auction Procedures. Pursuant to Section 2.1.5 of
Annex I to the Indenture, the Auction Agent has been appointed to act in the
capacities set forth in this Auction Agent Agreement with respect to the Auction
Notes.
The Indenture Trustee is entering into this Auction Agent Agreement at
the direction of the Seller pursuant to the terms of the Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties listed on the signature page hereto,
agree as follows:
Section 1. Definitions and Rules of Construction.
1.1. Terms Defined by Reference to Indenture. Capitalized terms used
herein and not otherwise defined herein shall have the meanings given such terms
in the Indenture and if not defined therein, then in the Broker-Dealer
Agreement.
1.2. Terms Defined Herein. As used herein and in the Settlement
Procedures (as defined below), the following terms have the following meanings,
unless the context otherwise requires:
"Auction" shall have the meaning specified in Section 2.1 hereof.
"Auction Agent Fee" shall have the meaning specified in Section 4.4(a)
hereof.
"Auction Date" shall have the meaning specified in Annex I to the
Indenture.
"Auction Procedures" shall mean, with respect to the Auction Notes,
the provisions that are set forth in Sections 2.1.1 through 2.1.7, inclusive, of
Annex I to the Indenture.
"Broker-Dealer" shall mean a person listed on Exhibit A hereto, as
such Exhibit A may be amended from time to time.
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"Broker-Dealer Agreement" shall mean each agreement among the Auction
Agent, the Holder of the Certificates and a Broker-Dealer substantially in the
form attached hereto as Exhibit B.
"Depository" shall mean the Depository Trust Company, or any successor
thereto.
"Existing Noteholder Registry" shall mean the register maintained by
the Auction Agent pursuant to Section 2.2(c) hereof.
"Holder of the Certificates" shall mean the Holders of at least a
majority Percentage Interest in the Certificates.
"Market Agent" shall mean Wachovia Capital Markets, LLC, or any
successor thereto.
"Notice of Notes Outstanding" shall mean a notice substantially in the
form of Exhibit C hereto.
"Notice of Failure to Deliver or Make Payment" shall mean a notice
substantially in the form of Exhibit D to the Broker-Dealer
Agreement.
"Notice of Transfer" shall mean a notice substantially in the form of
Exhibit C to the Broker-Dealer Agreement.
"Participant" shall mean a member of, or participant in, the
Depository.
"Responsible Auction Agent Officer" shall mean, with respect to the
Auction Agent, each Managing Director, Vice President, Assistant Vice President,
Assistant Secretary and Assistant Treasurer of the Auction Agent assigned to its
Corporate Trust and Agency Group and every other officer or employee of the
Auction Agent designated as a "Responsible Auction Agent Officer" for purposes
hereof in a communication to the Indenture Trustee.
"Settlement Procedures" shall mean the Settlement Procedures attached
as Exhibit D hereto.
1.3. Rules of Construction. Unless the context or use indicates
another or different meaning or intent, the following rules shall apply to the
construction of this Auction Agent Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience
of reference and shall not constitute a part of this Auction Agent Agreement nor
shall they affect its meaning, construction or effect.
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(c) The words "hereof," "herein," "hereto" and other words of
similar import refer to this Auction Agent Agreement as a whole.
(d) All references herein to a particular time of day shall be to
New York City time.
Section 2. The Auction.
2.1. Incorporation by Reference of Auction Procedures and Settlement
Procedures.
(a) Pursuant to Section 2.1.5 of Annex I to the Indenture,
Wachovia Capital Markets, LLC has been appointed as the initial Auction Agent
for purposes of the Auction Procedures and to perform such other obligations and
duties as are herein set forth. Wachovia Capital Markets, LLC hereby accepts
such appointment and agrees that, on each Auction Date, it shall follow the
procedures set forth in this Section 2 and the Auction Procedures for the
purpose of, among other things, determining for the Auction Notes the Auction
Rate, and the Note Rate for the Auction Notes for each Interest Period. Each
periodic operation of such procedures is hereinafter referred to as an
"Auction."
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by reference in their entirety
and shall be deemed to be a part hereof to the same extent as if such provisions
were fully set forth herein.
2.2. Preparation of Each Auction; Maintenance of Existing Noteholder
Registry.
(a) A list of Broker-Dealers (showing Wachovia Capital Markets,
LLC as the initial Broker-Dealer) is attached as Exhibit A hereto. Not later
than seven days prior to any Auction Date for which any change in such list of
Broker-Dealers is to be effective, WASI will notify the Auction Agent in writing
of such change and, if any such change is the addition of a Broker-Dealer to
such list, shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement manually signed and duly executed by
such Broker Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that any day that is scheduled to be an Auction
Date shall be changed after the Auction Agent shall have given the notice of
such Auction Date pursuant to clause (vii) of paragraph (a) of the Settlement
Procedures, the Auction Agent, by such means as the Auction Agent deems
practicable, shall give notice of such change to the Broker-Dealers not later
than the earlier of 9:15 A.M. on the new Auction Date and 9:15 A.M. on the old
Auction Date.
(c) (i) The Auction Agent shall maintain a current registry of
Persons that are Broker-Dealers, compiled initially on the Closing Date as
described below, and Persons that hold Auction Notes for purposes of dealing
with the Auction Agent in
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connection with an Auction (such registry being herein called the "Existing
Noteholder Registry"). Such Persons shall constitute the "Existing Noteholders"
for purposes of dealing with the Auction Agent in connection with an Auction.
The Auction Agent shall indicate in the Existing Noteholder Registry for each
Existing Noteholder the identity of the Broker-Dealer which submitted the most
recent Order in any Auction which resulted in such Existing Noteholder
continuing to hold or purchasing the Auction Notes. The Auction Agent may
conclusively rely upon, as evidence of the identities of the Existing
Noteholders, such list, the results of each Auction and notices from any
Existing Noteholder, Participant of any Existing Noteholder or Broker-Dealer of
any Existing Noteholder.
(ii) The Indenture Trustee shall, based solely on the information
set forth in the Servicer Certificate with respect to the related Payment Date,
notify the Auction Agent in writing when any notice of principal payment of the
Auction Notes is sent to the Depository as the owner of such Auction Notes not
later than 11:00 A.M. on the date such notice is sent. Such notice shall be
substantially in the form of Exhibit C hereto. In the event the Auction Agent
receives from the Indenture Trustee written notice of any payment of principal
of the Auction Notes, the Auction Agent shall, at least two Business Days prior
to the next Auction, request each Participant to disclose to the Auction Agent
(upon selection by such Participant of the Existing Noteholders whose Auction
Notes are to receive principal payments) the aggregate principal amount of such
Auction Notes of each such Existing Noteholder, if any, which are to be paid;
provided the Auction Agent has been furnished with the name and telephone number
of a person or department at such Participant from which it is to request such
information. In the absence of receiving any such information with respect to
any Existing Noteholder from such Existing Noteholder's Participant or
otherwise, the Auction Agent may continue to treat such Existing Noteholder as
the beneficial owner of the principal amount of the Auction Notes shown in the
Existing Noteholder Registry.
(iii) The Auction Agent shall be required to register in the
Existing Noteholder
Registry a transfer of Auction Notes from an Existing Noteholder to another
Person only if such transfer is made to a Person through a Broker-Dealer and if
(A) such transfer is pursuant to an Auction or (B) the Auction Agent has been
notified in writing (1) in a notice substantially in the form of a Notice of
Transfer by such Existing Noteholder, by the Participant of such Existing
Noteholder or by the Broker-Dealer of such Existing Noteholder of such transfer
or (2) in a notice substantially in the form of a Notice of Failure to Deliver
or Make Payment by the Broker-Dealer of any Person that purchased or sold
Auction Notes in an Auction of such Auction Notes to be transferred as a result
of the Auction. The Auction Agent is not required to accept any Notice of
Transfer or Notice of Failure to Deliver or Make Payment delivered prior to an
Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business
Day next preceding the applicable Auction Date.
(d) The Auction Agent may request that the Broker-Dealers, as set
forth in the Broker-Dealer Agreements, provide the Auction Agent with the
aggregate principal amount of Auction Notes held by such Broker-Dealers for
purposes of the Existing Noteholder Registry. Except as permitted by Section 2.8
hereof, the Auction Agent shall keep confidential any such information and shall
not disclose any such information so provided to any person other than the
relevant Broker-Dealer and the Indenture Trustee, provided that the Auction
Agent reserves the right to disclose any such information if it is advised by
its counsel that its failure to do so would be unlawful or would expose the
Auction Agent to liability, loss, claim or damage for which the Auction Agent
has not previously received indemnity reasonably satisfactory to it.
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(e) The Auction Agent shall send by telecopy or other means as
soon as reasonably practicable, but in no event later than the next Business
Day, a copy of any Notice of Notes Outstanding received from the Indenture
Trustee, to each Broker-Dealer in accordance with Section 4.3 of the applicable
Broker-Dealer Agreement.
2.3. All Hold Rates, Maximum Auction Rates, Class A-II-2 Net WAC Rate
and LIBOR.
(a) On each Auction Date, the Auction Agent shall determine the
All Hold Rate, the Maximum Auction Rate and, as provided by the Servicer, and to
the extent so provided, the Class A-II-2 Net WAC Rate and LIBOR. Not later than
9:30 A.M. on each Auction Date, the Auction Agent shall notify the Servicer and
the Broker-Dealer of the All Hold Rate, the Maximum Auction Rate, the Class
A-II-2 Net WAC Rate and LIBOR, as so determined. Pursuant to Section 3.23 of the
Servicing Agreement, in the event that the Auction Notes are not rated "AAA" by
S&P and "Aaa" by Moody's at any time on or after the Closing Date, the Servicer
is to give written notice to the Auction Agent of any such event within three
(3) Business Days of its receipt of notice of such change, but not later than
one (1) Business Day immediately preceding an Auction Date if the Servicer had
actual knowledge or has received written notice of such change prior to 12:00
noon on such Business Day, and the Auction Agent shall take into account such
change for purposes hereof and any Auction, so long as such notice is received
by the Auction Agent no later than the close of business on such Business Day.
(b) (i) If, on any Auction Date for an Interest Period, an
Auction is not held for any reason, then (except as provided in clauses (ii) and
(iii) below) the Note Rate on the Auction Notes for the next succeeding Interest
Period shall, pursuant to Annex I to the Indenture, and as calculated by the
Servicer, equal the lesser of the Maximum Auction Rate and the Class A-II-2 Net
WAC Rate.
(ii) If the ownership of the Auction Notes is no longer
maintained in Book-Entry Form by the Depository, no further Auctions shall be
held and the Note Rate on such Auction Notes for each applicable Interest Period
commencing after the delivery of certificated Auction Notes shall, pursuant to
the Indenture, equal the lesser of the Class A-II-2 Net WAC Rate and the Maximum
Auction Rate on the Business Day immediately preceding the first day of each
such applicable subsequent Interest Period as provided in the Indenture.
2.4. Auction Schedule. The Auction Agent shall conduct Auctions on the
Auction Date in accordance with the schedule set forth below. Such schedule may
be changed by the Auction Agent with the consent of WASI and the Market Agent,
which consent shall not be unreasonably withheld or delayed. The Auction Agent
shall give notice pursuant to Section 4.3 of the applicable Broker-Dealer
Agreement of any such change to each Broker-Dealer. Such notice shall be given
prior to the first Auction Date on which any such change shall be effective.
By 9:30 A.M. The Auction Agent advises the Servicer and the
Broker-Dealers of the Maximum Auction Rate, the
All Hold Rate and, as provided by the Servicer,
the Class A-II-2 Net WAC Rate with respect to
the Auction Date and LIBOR, to be used in
determining the Auction Rate under the Auction
Procedures, the Indenture and this Auction
Agent Agreement.
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9:30 A.M. - 1:00 P.M. The Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Section 2.1.1(c)(i) of Annex I to
the Indenture. The Submission Deadline is
1:00 P.M.
Not earlier than 1:00 P.M. The Auction Agent makes the determination
pursuant to Section 2.1.1(c)(i) of Annex I to
the Indenture.
By approximately The Auction Agent advises the Servicer of the
3:00 P.M.* or 4:00 P.M. results of the Auction as provided in Section
P.M.** 2.1.1(c)(ii) of Annex I to the Indenture.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
Auction Notes allocated as provided in Section
2.1.1(d) of Annex I to the Indenture.
* If the Note Rate is the Auction Rate.
** If the Note Rate is the Class A-II-2 Net WAC Rate.
The Auction Agent shall follow the notification procedures set forth
in paragraph (a) of the Settlement Procedures. In accordance with Section
2.1.1(c)(ii) of Annex I to the Indenture, the Auction Agent shall give written
notice to the Servicer of the Note Rate.
2.5. Changes in Auction Date. The Auction Agent shall mail any notice
delivered to it pursuant to Section 2.1.7 of Annex I to the Indenture to the
Broker-Dealers within three (3) Business Days of its receipt thereof.
2.6. Notices to Existing Noteholder. The Auction Agent shall be
entitled to rely upon the address of each Broker-Dealer as provided in Section
4.3 of the applicable Broker-Dealer Agreement in connection with any notice to
each Broker-Dealer, as an Existing Noteholder, required to be given by the
Auction Agent.
2.7. Broker-Dealers.
(a) If the Auction Agent is provided with a copy of a
Broker-Dealer Agreement, which has been manually signed, with any person listed
on Exhibit A hereto to which WASI shall have consented, it shall enter into such
Broker-Dealer Agreement with such person. WASI hereby consents to Wachovia
Capital Markets, LLC as the initial Broker-Dealer.
(b) The Auction Agent may, with the prior written consent of
WASI, so long as Wachovia Capital Markets, LLC is acting as a Broker-Dealer,
enter into a Broker-Dealer Agreement with any other person who requests to be
selected to act as a Broker-Dealer. The Auction Agent shall have entered into a
Broker-Dealer Agreement with each Broker-Dealer prior to the participation of
any such Broker-Dealer in any Auction.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement
as set forth therein at the written direction of WASI.
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2.8. Access to and Maintenance of Auction Records. The Auction Agent
shall afford to WASI and its respective agents, independent public accountants
and counsel, access at reasonable times during normal business hours to review
and make extracts or copies (at no cost to the Auction Agent) of all books,
records, documents and other information concerning the conduct and results of
Auctions, provided that any such agent, accountant, or counsel shall furnish the
Auction Agent with a letter from the Indenture Trustee requesting that the
Auction Agent afford such person access. The Auction Agent shall maintain
records relating to any Auction for a period of two years after such Auction
(unless requested by WASI to maintain such records for such longer period not in
excess of four years, then for such longer period), and such records shall, in
reasonable detail, accurately and fairly reflect the actions taken by the
Auction Agent hereunder. At the end of such period, the Auction Agent shall
deliver such records to WASI if so requested in writing. WASI agrees to keep any
information regarding the conduct and results of the Auctions, including without
limitation information regarding customers of any Broker-Dealer, received from
the Auction Agent in connection with this Auction Agent Agreement confidential
and shall not disclose such information or permit the disclosure of such
information without the prior written consent of the applicable Broker-Dealer to
anyone except such agent, accountant or counsel engaged to audit or review the
results of Auctions as permitted by this Section 2.8, except as may otherwise be
required by applicable law or regulation. Any such agent, accountant or counsel,
before having access to such information, shall agree to keep such information
confidential and not to disclose such information or permit disclosure of such
information without the prior written consent of the applicable Broker-Dealer,
except as may otherwise be required by applicable law or regulation. The Auction
Agent shall not be responsible or liable for any actions of WASI or its agents,
accountants or counsel for passing on such confidential information as a result
of access to such records and information.
Section 3. Representations and Warranties of the Auction Agent.
The Auction Agent hereby represents and warrants to WASI that the
Auction Agent (i) has been duly incorporated and is validly existing and in good
standing as a corporation under the laws of the State of North Carolina, and
(ii) has all necessary authority to enter into and perform its obligations under
this Auction Agent Agreement. This Auction Agent Agreement has been duly and
validly authorized, executed and delivered by the Auction Agent and constitutes
the legal, valid, binding and enforceable obligation of the Auction Agent.
Section 4. The Auction Agent.
4.1. Duties and Responsibilities.
(a) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Auction Agent Agreement, and
no implied covenants or obligations shall be read into this Auction Agent
Agreement by means of the provisions of the Indenture, anything set forth in the
Prospectus or Prospectus Supplement forming a part of the Registration Statement
on Form S-3 (No. 333-97457), or any other offering material prepared in
connection with the offer and sale of the Auction Notes, or otherwise against
the Auction Agent.
(b) In the absence of bad faith or negligence on its part, the
Auction Agent, whether acting directly or through agents or attorneys as
provided in Section 4.2(d), shall
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not be liable for any action taken, suffered or omitted in good faith or for any
error of judgment made by it in the performance of its duties under this Auction
Agent Agreement. The Auction Agent shall not be liable for any error of judgment
made in good faith unless the Auction Agent shall have been negligent in
ascertaining the pertinent facts.
(c) The Auction Agent shall not agree to any amendment to a
Broker-Dealer Agreement without the prior written consent of WASI, which consent
shall not be unreasonably withheld or delayed.
4.2. Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely on and shall be fully
protected in acting or refraining from acting upon any communication authorized
hereby and upon any written instruction, notice, request, direction, consent,
report, certificate, form of bond certificate or other instrument, paper or
document believed by it to be genuine. The Auction Agent shall not be liable for
acting upon any telephone communication authorized hereby which the Auction
Agent believes in good faith to have been given by the Servicer or by a
Broker-Dealer. The Auction Agent may record telephone communications with the
Servicer and the Servicer may record telephone conversations with the Auction
Agent.
(b) The Auction Agent may consult with counsel of its choice, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys and shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
(e) The Auction Agent shall have no obligation or liability in
respect of the registration or exemption therefrom of the Auction Notes under
federal or state securities laws.
4.3. Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the correctness, validity, adequacy of accuracy of the
recitals in or the adequacy or validity of this Auction Agent Agreement or the
Broker-Dealer Agreement or the validity or adequacy of the Auction Notes.
4.4. Compensation and Indemnification.
(a) On the Closing Date, the Auction Agent shall be entitled to a
one-time fee in the amount of $17,500 (the "Auction Agent Fee") for it's
services hereunder.
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(b) To the extent funds are available pursuant to Section 3.05(a)
of the Indenture, the Auction Agent shall be indemnified and held harmless by
the Trust Estate, and to the extent funds are not available pursuant to Section
3.05(a) of the Indenture, the Holder of the Certificates, shall indemnify and
hold harmless the Auction Agent and its directors, officers, agents and
employees for and against any loss, liability or expense incurred without
negligence or bad faith on the part of the Auction Agent or its directors,
officers, agents or employees, arising out of or in connection with the
acceptance or administration of its agency under this Auction Agent Agreement
and the Broker-Dealer Agreement or the transactions contemplated by the
Indenture, including the reasonable costs and expenses (including the reasonable
fees and expenses of its counsel) of defending itself against any such claim or
liability in connection with its exercise or performance of any of its duties
hereunder and thereunder and of enforcing this indemnification provision;
provided that the Trust Estate or Holder of the Certificates, as applicable,
shall not indemnify the Auction Agent pursuant to this Section 4.4(b) for any
fees and expenses incurred by the negligence or willful misconduct of the
Auction Agent or incurred by the Auction Agent in the normal course of
performing its duties hereunder and under the Broker-Dealer Agreement (such
normal course fees and expenses being payable as provided in Section 4.4(a)
above).
Section 5. Miscellaneous.
5.1. Term of Agreement.
(a) This Auction Agent Agreement shall terminate on the earlier
to occur of (i) the satisfaction and discharge of the Indenture with respect to
the Auction Notes or this Auction Agent Agreement and (ii) the date on which
this Auction Agent Agreement is terminated in accordance with this Section 5.1.
The Indenture Trustee may terminate this Auction Agent Agreement in accordance
with Section 2.1.5(a) of Annex I to the Indenture. The Auction Agent may
terminate this Auction Agent Agreement upon written notice to the Indenture
Trustee, the Servicer and the Market Agent on the date specified in such notice,
which date shall be no earlier than 90 days after the date of delivery of such
notice. Notwithstanding the foregoing, the provisions of Section 2 hereof shall
terminate with respect to the Auction Notes, upon the delivery of notes
representing Auction Notes pursuant to Section 4.08 of the Indenture.
Notwithstanding the foregoing, the Auction Agent may terminate this Agreement
without further notice if, within 25 days after notifying in writing the
Indenture Trustee, the Servicer and the Market Agent that it has not received
payment of any Auction Agent Fee due it in accordance with the terms hereof, the
Auction Agent does not receive such payment. Any resignation of the Auction
Agent or termination of the Auction Agent Agreement shall not become effective
until a successor Auction Agent has been appointed and acceptance of such
appointment by such successor Auction Agent. However, if a successor Auction
Agent shall not have been appointed within 60 days from the date of such notice
of resignation, the resigning Auction Agent may petition any court of competent
jurisdiction for the appointment of a successor Auction Agent.
(b) Except as otherwise provided in this Section 5.1(b), the
respective rights and duties of the Indenture Trustee, WASI and the Auction
Agent under this Auction Agent Agreement shall cease upon termination of this
Auction Agent Agreement. The Auction Agent's representations, warranties,
covenants and obligations under Sections 3 and 4 hereof, shall survive the
termination of this Auction Agent Agreement subject to Section 5.10 hereof.
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Upon termination of this Auction Agent Agreement, the Auction Agent shall
promptly deliver to WASI upon prior written request copies of all books and
records maintained by it with respect to the Auction Notes in connection with
its duties hereunder.
5.2. Communications. Except for (i) communications authorized to be
made by telephone pursuant to this Auction Agent Agreement or the Auction
Procedures and (ii) communications in connection with Auctions (other than those
expressly required to be in writing), all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party addressed to it at its
address, or facsimile number set below:
If to the Indenture Trustee,
addressed: U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx
00000 Attention: Corporate Trust Services-
WASI Series 2003-HE2
If to the Auction Agent,
addressed: Wachovia Capital Markets, LLC
One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Wachovia Asset
Securitization, Inc, Wachovia Asset Securitization, Inc.
addressed: 8739 Research Drive, XX0000-Xxxxx X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to the Servicer, Wachovia Bank, National Association
addressed: One Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Re: Wachovia Asset Securitization 2003-HE2 Trust
Facsimile: (000) 000-0000
If to the Market Agent,
addressed: Wachovia Capital Markets, LLC
One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
10
or such other address, telephone or facsimile number as such party may hereafter
specify for such purpose by notice in writing to the other party. Each such
notice, request or communication shall be effective when delivered at the
address specified herein. Communications shall be given on behalf of the Auction
Agent by a Responsible Auction Agent Officer.
5.3. Entire Agreement. This Auction Agent Agreement contains the
entire agreement between the parties relating to the subject matter hereof, and
there are no other representations, endorsements, promises, agreements or
understandings, oral, written or inferred between the parties relating to the
subject matter hereof.
5.4. Benefits. Nothing herein, express or implied, shall give to any
person, other than the Indenture Trustee, the Auction Agent, the Servicer, the
Market Agent and their respective successors and assigns, any benefit of any
legal or equitable right, remedy or claim hereunder. The Market Agent shall be
designated as a third-party beneficiary under this Auction Agent Agreement.
5.5. Amendment, Waiver.
(a) This Auction Agent Agreement shall not be deemed or construed
to be modified, amended, rescinded, canceled or waived, in whole or in part,
except by a written instrument signed by duly authorized representatives of the
parties hereto.
(b) The Indenture Trustee shall not enter into or approve any
amendment of or supplement to the Indenture which materially affects the Auction
Agent's duties or obligations under the Indenture without obtaining the prior
written consent of the Auction Agent. The Indenture Trustee shall promptly
notify the Auction Agent of any amendment of or supplement to the Indenture and
shall provide a copy thereof to the Auction Agent upon request.
(c) Failure of a party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by any other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
5.6. Successor and Assign. This Auction Agent Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the respective
successors and assigns of each of the Indenture Trustee, the Holder of the
Certificates and the Auction Agent. This Auction Agent Agreement may not be
assigned by any party hereto absent the prior written consent of the other
parties hereto, which consents shall not be unreasonably withheld. In addition,
the Holder of the Certificates may not assign its interest in the Certificates
without the prior written consent of the Auction Agent, which consent shall not
be unreasonably withheld.
5.7. Severability. If any clause, provision or section hereof shall be
ruled invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
5.8. Execution in Counterparts. This Auction Agent Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
11
5.9. Governing Law. This Auction Agent Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such state, it being understood that U.S.
Bank National Association is entering into this Agreement solely in its capacity
as Indenture Trustee and none of such obligations shall be the obligations of
U.S. Bank National Association in its individual capacity.
5.10 Indenture Trustee. All privileges, rights and immunities given to
the Indenture Trustee in the Indenture are herebyextended to and applicable to
the Indenture Trustee's obligations hereunder.
12
IN WITNESS WHEREOF, the parties hereto have caused this Auction Agent
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:
-----------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC,
as Auction Agent
By:
-----------------------------------
Name:
Title:
WACHOVIA ASSET SECURITIZATION, INC.,
not in its individual capacity but
solely as Holder of the Certificates
By:
-----------------------------------
Name:
Title:
EXHIBIT A
LIST OF INITIAL BROKER-DEALERS
------------------------------
Wachovia Capital Markets, LLC
A-1
EXHIBIT B
FORM OF BROKER - DEALER AGREEMENT
---------------------------------
(See attached)
B-1
EXHIBIT C
NOTICE OF NOTES OUTSTANDING
WACHOVIA ASSET SECURITIZATION, INC.
2003-HE2 TRUST
ASSET-BACKED NOTES, SERIES 2003-HE2
NOTICE IS HEREBY GIVEN that $ aggregate principal
----------------
amounts of Class A-II-2 Notes were Outstanding at the close of business on the
immediately preceding Record Date. Such aggregate principal amount of Class
A-II-2 Notes, less $ aggregate principal amount of Class A-II-2 Notes
-----------
to be repaid pursuant to the Indenture, for a net aggregate principal amount of
Class A-II-2 Notes of $ will be available on the next Auction
--------------
scheduled to be held on .
---------------
Terms used herein have the meanings set forth in the Notes relating to
the above-referenced issue.
[ ], as Indenture Trustee
---------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
C-1
EXHIBIT D
SETTLEMENT PROCEDURES
If not otherwise defined below, capitalized terms used herein shall
have the meanings given such terms in the Indenture.
(a) Not later than (1) 3:00 P.M. if the related Note Rate for a Class
A-II-2 Note is the Auction Rate or (2) 4:00 P.M. if the related Note Rate for a
Class A-II-2 Note is the Class A-II-2 Net WAC Rate on each Auction Date, the
Auction Agent shall notify by telephone each Broker-Dealer that participated in
the Auction held on such Auction Date and submitted an Order on behalf of an
Existing Noteholder or Potential Noteholder of:
(i) the related Note Rate for the Class A-II-2 Notes for the
next Interest Period;
(ii) whether there were Sufficient Bids in such Auction;
(iii) if such Broker-Dealer (a "Seller's Broker-Dealer")
submitted Bids or Sell Orders on behalf of an Existing Noteholder,
whether such Bid or Sell Order was accepted or rejected, in whole or
in part, and the principal amount of the Class A-II-2 Notes, if any,
to be sold by such Existing Noteholder;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer")
submitted a Bid on behalf of a Potential Noteholder, whether such Bid
was accepted or rejected, in whole or in part, and the principal
amount of the Class A-II-2 Notes, if any, to be purchased by such
Potential Noteholder;
(v) if the aggregate amount of the Class A-II-2 Notes to be
sold by all Existing Noteholders on whose behalf such Seller's
Broker-Dealer submitted Bids or Sell Orders exceeds the aggregate
principal amount of the Class A-II-2 Notes to be purchased by all
Potential Noteholders on whose behalf such Buyer's Broker-Dealer
submitted a Bid, the name or names of one or more Buyer's
Broker-Dealers (and the name of the Participant, if any, of each such
Buyer's Broker-Dealer) acting for one or more purchasers of such
excess principal amount of the Class A-II-2 Notes and the principal
amount of the Class A-II-2 Notes to be purchased from one or more
Existing Noteholders on whose behalf such Seller's Broker-Dealer acted
by one or more Potential Noteholders on whose behalf each of such
Buyer's Broker-Dealers acted;
(vi) if the principal amount of the Class A-II-2 Notes to be
purchased by all Potential Noteholders on whose behalf such Buyer's
Broker-Dealer submitted a Bid exceeds the amount of the Class A-II-2
Notes to be sold by all Existing Noteholders on whose behalf such
Sellers' Broker-Dealer submitted a Bid or a Sell Order, the name or
names of one or more Sellers' Broker-Dealers (and the name of the
Participant, if any, of each such Seller's Broker-Dealer) acting for
one or more sellers of such excess principal amount of the Class
A-II-2 Notes and the principal amount of the Class A-II-2 Notes to be
sold to one or more Potential Noteholders on whose behalf such Buyer's
Broker-
D-1
Dealer acted by one or more Existing Noteholders on whose behalf each
of such Seller's Broker-Dealers acted; and
(vii) the Auction Date for the next succeeding Auction.
(b) On each Auction Date, each Broker-Dealer that submitted an Order
on behalf of any Existing Noteholder or Potential Noteholder shall:
(i) advise each Existing Noteholder and Potential Noteholder
on whose behalf such Broker-Dealer submitted a Bid or Sell Order in
the Auction on such Auction Date whether such Bid or Sell Order was
accepted or rejected, in whole or in part;
(ii) in the case of a Broker-Dealer that is a Buyer's
Broker-Dealer, advise each Potential Noteholder on whose behalf such
Buyer's Broker-Dealer submitted a Bid that was accepted, in whole or
in part, to instruct such Potential Noteholder's Participant to pay
such Buyer's Broker-Dealer (or its Participant) through the Depository
the amount necessary to purchase the principal amount of the Class
A-II-2 Notes to be purchased pursuant to such Bid against receipt of
such Class A-II-2 Notes, together with accrued interest;
(iii) in the case of a Broker-Dealer that is a Seller's
Broker-Dealer, instruct each Existing Noteholder on whose behalf such
Seller's Broker-Dealer submitted a Sell Order that was accepted, in
whole or in part, or a Bid that was accepted, in whole or in part, to
instruct such Existing Noteholder's Participant to deliver to such
Seller's Broker-Dealer (or its Participant) through the Depository the
principal amount of the Class A-II-2 Notes to be sold pursuant to such
Order against payment therefor;
(iv) advise each Existing Noteholder on whose behalf such
Broker-Dealer submitted an Order and each Potential Noteholder on
whose behalf such Broker-Dealer submitted a Bid of the Note Rate for
the next Interest Period;
(v) advise each Existing Noteholder on whose behalf such
Broker-Dealer submitted an Order of the next Auction Date; and
(vi) advise each Potential Noteholder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part,
of the next Auction Date.
(c) On the basis of the information provided to it pursuant to
paragraph (a) above, each Broker-Dealer that submitted a Bid or Sell Order in an
Auction is required to allocate any funds received by it in connection with such
Auction pursuant to paragraph (b)(ii) above, and any Class A-II-2 Notes received
by it in connection with such Auction pursuant to paragraph (b)(iii) above,
among the Potential Noteholders, if any, on whose behalf such Broker-Dealer
submitted Bids, the Existing Noteholders, if any, on whose behalf such
Broker-Dealer submitted Bids or Sell Orders in such Auction, and any
Broker-Dealers identified to it by the Auction Agent following such Auction
pursuant to paragraph (a)(v) or (a)(vi) above.
(d) On each Auction Date:
D-2
(i) each Potential Noteholder and Existing Noteholder with
an Order in the Auction on such Auction Date shall instruct its
Participant as provided in (b)(ii) or (b)(iii) above, as the case may
be;
(ii) each Seller's Broker-Dealer that is not a Participant
of the Depository shall instruct its Participant to deliver such Class
A-II-2 Notes through the Depository to a Buyer's Broker-Dealer (or its
Participant) identified to such Seller's Broker-Dealer pursuant to
(a)(v) above against payment therefor; and
(iii) each Buyer's Broker-Dealer that is not a Participant
in the Depository shall instruct its Participant to pay through the
Depository to Seller's Broker-Dealer (or its Participant) identified
following such Auction pursuant to (a)(vi) above the amount necessary
to purchase Class A-II-2 Notes to be purchased pursuant to (b)(ii)
above against receipt of such Notes.
(e) On the Business Day following each Auction Date:
(i) each Participant for a Bidder in the Auction on such
Auction Date referred to in (d)(i) above shall instruct the Depository
to execute the transactions described under (b)(ii) or (b)(iii) above
for such Auction, and the Depository shall execute such transactions;
(ii) each Seller's Broker-Dealer or its Participant shall
instruct the Depository to execute the transactions described in
(d)(ii) above for such Auction, and the Depository shall execute such
transactions; and
(iii) each Buyer's Broker-Dealer or its Participant shall
instruct the Depository to execute the transactions described in
(d)(iii) above for such Auction, and the Depository shall execute such
transactions.
(f) If an Existing Noteholder selling Class A-II-2 Notes in an Auction
fails to deliver such Notes (by authorized book-entry), a Broker-Dealer may
deliver to the Potential Noteholder on behalf of which it submitted a Bid that
was accepted a principal amount of the Class A-II-2 Notes that is less than the
principal amount of such Class A-II-2 Notes that otherwise was to be purchased
by such Potential Noteholder. In such event, the principal amount of the Class
A-II-2 Notes to be so delivered shall be determined solely by such Broker-Dealer
(but only in Authorized Denominations). Delivery of such lesser principal amount
of the Class A-II-2 Notes shall constitute good delivery. Notwithstanding the
foregoing terms of this paragraph (f), any delivery or nondelivery of Class
A-II-2 Notes which shall represent any departure from the results of an Auction,
as determined by the Auction Agent, shall be of no effect unless and until the
Auction Agent shall have been notified of such delivery or nondelivery in
accordance with the provisions of the Auction Agent Agreement and the
Broker-Dealer Agreements. None of the Indenture Trustee, the Paying Agent or the
Auction Agent will have any responsibility or liability with respect to the
failure of a Potential Noteholder, Existing Noteholder or their respective
Broker-Dealer or Participant to take delivery of or deliver, as the case may be,
the principal amount of Class A-II-2 Notes purchased or sold pursuant to an
Auction or otherwise.
D-3
