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.
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"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.
"Moody's" 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
Moody's 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
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<PAGE>
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
noti
