Exhibit 99.3
EXECUTION COPY
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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 December 1, 2005
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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
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Section 5.07. Hold
Harmless.................................................22
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 December 1, 2005
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 December 8,
2005, 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 2005-B (the
"Issuer") pursuant to the sale and
servicing agreement, dated as of December
1, 2005, 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 December 1, 2005,
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 $1,568,325,260.39
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"Issuer" has the meaning specified in the recitals.
"Lien" has the meaning specified in the Sale and Servicing
Agreement.
"Liquidation Proceeds" 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.
"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 November 25, 2005, and the
prospectus, dated November 25, 2005, of the
Purchaser relating to the public offering
by the Purchaser of the Underwritten
Notes.
"Prospectus" means the prospectus supplement, dated November
30,
2005, and the prospectus, dated November
25, 2005, 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.
"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.
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"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 December 1, 2005,
among the Issuer, the Depositor, the
Seller and the 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
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".
"Servicer" has the meaning specified in the Sale and Servicing
Agreement.
"Simple Interest Receivable" has the meaning specified in the
Sale
and Servicing Agreement.
"Standard & Poor's" has the meaning specified in the
Indenture.
"State" has the meaning specified in the Indenture.
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"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 December 1, 2005, 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
November 30, 2005, 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 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 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
Brown & Wood 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) 0.00011770 and (b)
$1,900,000,000.
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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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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 part
