Exhibit 10.2
EXECUTION COPY
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WACHOVIA AUTO OWNER TRUST 2004-B,
as Issuer,
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrator,
POOLED AUTO SECURITIES SHELF LLC,
as Depositor,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
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ADMINISTRATION AGREEMENT
Dated as of September 1, 2004
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TABLE OF CONTENTS
Page
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Section 1.01. Capitalized Terms;
Interpretive
Provisions..........................................................2
Section 1.02. Duties of the
Administrator.........................................................................2
Section 1.03.
Records.............................................................................................8
Section 1.04.
Compensation........................................................................................8
Section 1.05. Additional Information to be
Furnished to the
Issuer................................................8
Section 1.06. Independence of the
Administrator...................................................................8
Section 1.07. No Joint
Venture....................................................................................8
Section 1.08. Other Activities of
Administrator...................................................................8
Section 1.09. Term of Agreement;
Resignation and Removal of
Administrator.........................................9
Section 1.10. Action Upon Termination,
Resignation or
Removal....................................................10
Section 1.11.
Notices............................................................................................10
Section 1.12.
Amendments.........................................................................................10
Section 1.13. Successors and
Assigns.............................................................................11
Section 1.14. Governing
Law......................................................................................11
Section 1.15.
Headings...........................................................................................11
Section 1.16.
Counterparts.......................................................................................11
Section 1.17.
Severability.......................................................................................11
Section 1.18. Limitation of Liability of
Owner Trustee and Indenture
Trustee.....................................12
Section 1.19. Third-Party
Beneficiary............................................................................12
Section 1.20. Successor Servicer and
Administrator...............................................................12
Section 1.21. Nonpetition
Covenants..............................................................................12
EXHIBITS
Exhibit A - Form of Power of
Attorney.......................................................................
A-1
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ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of September 1, 2004
(the
"Agreement"), is among Wachovia Auto Owner
Trust 2004-B, as issuer (the
"Issuer"), Wachovia Bank, National
Association ("Wachovia Bank"), as
administrator (the "Administrator"), Pooled
Auto Securities Shelf LLC ("PASS"),
as depositor (the "Depositor"), and U.S.
Bank National Association, not in its
individual capacity but solely as trustee
(the "Indenture Trustee").
WHEREAS, the Issuer was created pursuant to the trust agreement,
dated
as of July 14, 2004, as amended and
restated as of September 1, 2004 (the "Trust
Agreement"), each between the Depositor and
Wilmington Trust Company, as trustee
(in such capacity and not in its individual
capacity, the "Owner Trustee");
WHEREAS,
the Issuer is issuing 1.8125% Class A-1 Asset Backed Notes,
2.40% Class A-2 Asset Backed Notes, 2.91%
Class A-3 Asset Backed Notes, 3.44%
Class A-4 Asset Backed Notes, 2.86% Class B
Asset Backed Notes and 3.17% Class C
Asset Backed Notes (collectively, the
"Notes") pursuant to an indenture, dated
as of the date hereof (the "Indenture"),
between the Issuer and the Indenture
Trustee;
WHEREAS, the Issuer has entered into certain agreements in
connection
with the issuance of the Notes and of
certain beneficial ownership interests in
the Issuer, including (i) the Indenture,
(ii) a sale and servicing agreement,
dated as of the date hereof (the "Sale and
Servicing Agreement"), among the
Issuer, the Depositor and Wachovia Bank, as
seller (in such capacity, the
"Seller") and as servicer (in such
capacity, the "Servicer"), (iii) a
receivables purchase agreement, dated as of
the date hereof (the "Receivables
Purchase Agreement"), between the Seller
and the Depositor, (iv) a Letter of
Representations, dated September 9, 2004
(the "Note Depository Agreement"),
among the Issuer, the Indenture Trustee,
Wachovia Bank, as paying agent, and The
Depository Trust Company ("DTC"), relating
to the Notes, and (v) a control
agreement, dated as of the date hereof (the
"Control Agreement" and, together
with this Agreement, the Indenture, the
Sale and Servicing Agreement, the Trust
Agreement, the Receivables Purchase
Agreement and the Note Depository Agreement,
the "Basic Documents"), among the Issuer,
the Servicer, Wachovia Bank, as the
account bank, and the Indenture
Trustee;
WHEREAS, pursuant to the Basic Documents, the Issuer and the
Owner
Trustee are required to perform certain
duties in connection with the (i) Notes
and the collateral therefor pledged
pursuant to the Indenture (the "Collateral")
and (ii) beneficial ownership interests in
the Issuer;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties
of the Issuer and the Owner Trustee
referred to in the preceding clause and to
provide such additional services
consistent with the terms of this Agreement
and the other Basic Documents as the
Issuer and the Owner Trustee may from time
to time request; and
WHEREAS, the Administrator has the capacity to provide the
services
required hereby and is willing to perform
such services for the Issuer and the
Owner Trustee on the terms set forth
herein.
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NOW, THEREFORE, in consideration of the premises and mutual
covenants
herein contained, and of other good and
valuable consideration, the receipt and
adequacy of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1.01. Capitalized Terms; Interpretive Provisions.
(a) Capitalized terms used herein that are not otherwise defined
shall
have the meanings ascribed thereto or
incorporated by reference in the Trust
Agreement, the Sale and Servicing Agreement
or the Indenture, as the case may
be. Whenever used herein, unless the
context otherwise requires, the following
words and phrases shall have the following
meanings:
"Agreement" means this Administration Agreement.
"Basic Documents" has the meaning set forth in the recitals.
(b) With respect to all terms in this Agreement, unless the
context
otherwise requires: (i) a term has the
meaning assigned to it; (ii) an
accounting term not otherwise defined has
the meaning assigned to it in
accordance with generally accepted
accounting principles as in effect from time
to time in the United States; (iii) "or" is
not exclusive; (iv) "including"
means including without limitation; (v)
words in the singular include the plural
and words in the plural include the
singular; (vi) any agreement, instrument or
statute defined or referred to herein or in
any instrument or certificate
delivered in connection herewith means such
agreement, instrument or statute as
from time to time amended, modified or
supplemented and includes (in the case of
agreements or instruments) references to
all attachments thereto and instruments
incorporated therein; (vii) references to a
Person are also to its successors
and permitted assigns; (viii) the words
"hereof", "herein" and "hereunder" and
words of similar import when used in this
Agreement shall refer to this
Agreement as a whole and not to any
particular provision of this Agreement; (ix)
Section, subsection and Exhibit references
in this Agreement are references to
Sections, subsections and Exhibits in or to
this Agreement unless otherwise
specified; (x) references to "writing"
include printing, typing, lithography and
other means of reproducing words in a
visible form; and (xi) the term "proceeds"
has the meaning set forth in the applicable
UCC.
Section 1.02. Duties of the Administrator.
(a) The Administrator agrees to perform all its duties as
Administrator
and, except as specifically excluded
herein, agrees to perform all the duties of
the Issuer and the Owner Trustee under the
Basic Documents. In addition, the
Administrator shall consult with the Owner
Trustee regarding the duties of the
Issuer or the Owner Trustee under the Basic
Documents. The Administrator shall
monitor the performance of the Issuer and
shall advise the Owner Trustee when
action is necessary to comply with the
respective duties of the Issuer and the
Owner Trustee under the Basic Documents.
The Administrator shall prepare for
execution by the Issuer, or shall cause the
preparation by other appropriate
persons of, all such documents, reports,
notices, filings, instruments,
certificates and opinions that it shall be
the duty of the Issuer or the Owner
Trustee to prepare, file or deliver
pursuant to the Basic Documents. In
furtherance of the foregoing, the
Administrator shall take (or, in the case of
the immediately preceding sentence, cause
to be taken) all appropriate action
that the Issuer or the Owner Trustee is
required to take
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pursuant to the Indenture including,
without limitation, such of the foregoing
as are required with respect to the
following matters under the Indenture
(references are to Sections of the
Indenture):
(i) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the Notes
and
delivery of the same to the Indenture Trustee (Section 2.02);
(ii) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new
Note
Registrar and the location, or change in location, of the Note
Register
(Section 2.05);
(iii) the notification of Noteholders of the final principal
payment on the Notes (Section 2.08(e));
(iv) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.02, 2.03, 2.06
and
2.12);
(v) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release
of collateral (Section 2.13);
(vi) the maintenance of an office or agency in the Borough of
Manhattan, the City of New York, where Notes may be surrendered
for
registration of transfer or exchange (Section 3.02);
(vii) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in
the
Indenture regarding funds held in trust (Section 3.03);
(viii) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture
Trustee
(Section 3.03);
(ix) the obtaining and preservation of the Issuer's
qualifications to do business in each jurisdiction where such
qualification is or shall be necessary to protect the validity
and
enforceability of the Indenture, the Notes, the Collateral and
each
other instrument or agreement included in the Trust Estate,
including
all licenses required under the (A) Maryland Vehicle Sales Finance
Act
and (B) Pennsylvania Motor Vehicle Sales Finance Act (Section
3.04);
(x) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation
statements,
instruments of further assurance and other instruments and the
taking
of such other action as are necessary or advisable to protect the
Trust
Estate (Section 3.05);
(xi) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to the
Trust
Estate, and the annual delivery of the Officer's Certificate
and
certain other statements as to compliance with the Indenture
(Sections
3.06 and 3.09);
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(xii) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted
to perform its duties under the Indenture (Section 3.07(b));
(xiii) the preparation and delivery of written notice to the
Indenture Trustee and the Rating Agencies of each Servicer
Termination
Event and, if such Servicer Termination Event arises from the
failure
of the Servicer to perform any of its duties or obligations under
the
Sale and Servicing Agreement with respect to the Receivables,
the
taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(xiv) the preparation and obtaining of documents and
instruments required for the conveyance or transfer by the Issuer
of
its properties or assets (Section 3.10(b));
(xv) the duty to cause the Servicer to comply with the Sale
and Servicing Agreement (Section 3.14);
(xvi) the delivery of written notice to the Indenture Trustee
and each Rating Agency of each Event of Default under the Indenture
and
each default by the Servicer, the Seller or the Depositor under
the
Sale and Servicing Agreement or by the Seller or the Depositor
under
the Receivables Purchase Agreement (Section 3.19);
(xvii) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of
an
Officer's Certificate and the obtaining of the Opinion of Counsel
and
the Independent Certificate relating thereto (Section 4.01);
(xviii) the compliance with Section 5.04 of the Indenture with
respect to the sale of the Trust Estate if an Event of Default
shall
have occurred and be continuing (Section 5.04);
(xix) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a
successor
Indenture Trustee (Section 6.08);
(xx) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate
trustee
and any written instruments necessary in connection with the
resignation or removal of the Indenture Trustee or any co-trustee
or
separate trustee (Sections 6.08 and 6.10);
(xxi) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the
Indenture
Trustee is not the Note Registrar (Section 7.01);
(xxii) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and
the
Indenture
Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and
regulations
prescribed by, the Commission and any applicable state agencies and
the
transmission of such summaries, as necessary, to the
Noteholders
(Section 7.03);
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(xxiii) the opening of one or more accounts in the Indenture
Trustee's name and the taking of all other actions necessary
with
respect to investment and reinvestment of funds in the Accounts
(Sections 8.02 and 8.03);
(xxiv) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent
Certificates, if necessary, for the release of the Trust Estate
(Sections 8.04 and 8.05);
(xxv) the preparation of Issuer Requests, the obtaining of
Opinions of Counsel and the certification to the Indenture Trustee
with
respect to the execution of supplemental indentures and the mailing
to
the Noteholders and the Rating Agencies, as applicable, of notices
with
respect to such supplemental indentures (Sections 9.01 and
9.02);
(xxvi) the execution, authentication and delivery of new Notes
conforming to any supplemental indenture (Section 9.06);
(xxvii) the duty to notify the Depositor, the Indenture
Trustee, the Noteholders and the Rating Agencies of redemption of
the
Notes or to cause the Servicer to provide such notification
(Sections
10.01 and 10.02);
(xxviii) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with
respect to any requests by the Issuer to the Indenture Trustee to
take
any action under the Indenture (Section 11.01(a));
(xxix) the preparation and delivery of Officer's Certificates
and the obtaining of Opinions of Counsel and Independent
Certificates,
if necessary, for the release of property from the Lien of the
Indenture (Section 11.01(b));
(xxx) the preparation and delivery of written notice to the
Rating Agencies, upon the failure of the Issuer, the Depositor or
the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section
11.04);
(xxxi) the preparation and delivery to the Noteholders and the
Indenture Trustee of any agreements with respect to alternate
payment
and notice provisions (Section 11.06); and (xxxii) the recording of
the
Indenture, if applicable (Section 11.15).
(b) The Administrator shall:
(i) pay the Indenture Trustee from time to time such
compensation and fees for all services rendered by the
Indenture
Trustee under the Indenture as have been agreed to in a separate
fee
schedule between the Administrator and the Indenture Trustee
(which
compensation shall not be limited by any provision of law in regard
to
the compensation of a trustee of an express trust);
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(ii) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all
reasonable
expenses,
disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Basic Documents
(including the reasonable compensation, expenses and disbursements
of
its agents and counsel), except any such expense, disbursement
or
advance as may be attributable to its willful misconduct,
negligence or
bad faith;
(iii) except as otherwise expressly provided in the third
sentence of Section 7.01 of the Trust Agreement, reimburse the
Owner
Trustee upon its request for all reasonable expenses, disbursements
and
advances incurred or made by the Owner Trustee in accordance with
any
provision of t
