Exhibit 10.3
EXECUTION COPY
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller,
and
POOLED AUTO SECURITIES SHELF LLC,
as Purchaser
--------------------------------
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 1, 2004
--------------------------------
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<TABLE>
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
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Section 1.01.
Definitions................................................................
1
Section 1.02. Other Definitional
Provisions..............................................
4
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Sale and Conveyance of
Receivables......................................... 6
Section 2.02. Receivables Purchase Price;
Payments on the Receivables.................... 7
Section 2.03. Transfer of
Receivables....................................................
7
Section 2.04. Examination of Receivable
Files............................................ 8
Section 2.05.
Expenses...................................................................
8
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of
the Purchaser............................ 9
Section 3.02. Representations and Warranties of
the Seller............................... 10
Section 3.03. Representations and Warranties as
to the Receivables....................... 12
ARTICLE FOUR
CONDITIONS
Section 4.01. Conditions to Obligation of the
Purchaser.................................. 19
Section 4.02. Conditions to Obligation of the
Seller..................................... 21
ARTICLE FIVE
COVENANTS OF THE SELLER
Section 5.01. Protection of Right, Title and
Interest in, to and Under the
Receivables................................................................
22
Section 5.02. Security
Interests.........................................................
23
Section 5.03. Delivery of
Payments.......................................................
23
Section 5.04. No
Impairment..............................................................
23
Section 5.05. Costs and
Expenses.........................................................
24
Section 5.06. Hold
Harmless..............................................................
24
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Page
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ARTICLE SIX
INDEMNIFICATION
Section 6.01.
Indemnification............................................................
25
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
Section 7.01.
Amendment..................................................................
28
Section 7.02.
Termination................................................................
28
Section 7.03. GOVERNING
LAW..............................................................
28
Section 7.04.
Notices....................................................................
28
Section 7.05. Severability of
Provisions................................................. 28
Section 7.06. Further
Assurances.........................................................
29
Section 7.07. No Waiver; Cumulative
Remedies............................................. 29
Section 7.08.
Counterparts...............................................................
29
Section 7.09. Third-Party
Beneficiaries..................................................
29
Section 7.10.
Headings...................................................................
29
Section 7.11. Representations, Warranties and
Agreements to Survive...................... 29
Section 7.12. No
Proceedings.............................................................
29
SCHEDULES
Schedule A - Receivables
Schedule........................................................
SA-1
Schedule B - Location of Receivable
Files................................................ SB-1
EXHIBITS
Exhibit A - Bill of Sale and
Assignment..................................................
A-1
Exhibit B - Secretary's Certificate of
Wachovia Bank..................................... B-1
Exhibit C - Opinion of Counsel for Wachovia
Bank......................................... C-1
</TABLE>
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RECEIVABLES PURCHASE AGREEMENT
This
Receivables Purchase Agreement, dated as of June 1, 2004, 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
certain 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 Receivables
having an aggregate outstanding
principal balance of $2,002,714,605.98 as
of the close of business on May 31,
2004 to the Purchaser and, concurrently
with its purchase of the Receivables,
the Purchaser shall convey all of its
right, title and interest in and to the
Receivables to Wachovia Auto Owner Trust
2004-A (the "Issuer") pursuant to the
sale and servicing agreement, dated as of
June 1, 2004, among the Issuer,
PASS, as depositor (in such capacity, the
"Depositor"), and Wachovia Bank, as
Seller and as servicer (in such capacity,
the "Servicer"); 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.
"Basic
Documents" has the meaning specified in the Sale and Servicing
Agreement.
"Bill of
Sale" means the Bill of Sale and Assignment substantially in
the form attached hereto as Exhibit A.
"Certificateholder" has the meaning specified in the Trust
Agreement.
"Class A
Note" has the meaning specified in the Indenture.
"Class C
Final Scheduled Distribution Date" has the meaning specified in
the Indenture.
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"Closing
Date" has the meaning specified in the Indenture.
"Collateral Term Sheet" has the meaning specified in the
Underwriting
Agreement.
"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.
"Cutoff
Date" has the meaning specified in the Sale and Servicing
Agreement.
"Dealer
Recourse" has the meaning specified in the Sale and Servicing
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.
"Indenture" means the indenture, dated as of June 1, 2004, between
the
Issuer and the Indenture Trustee.
"Indenture
Trustee" has the meaning specified in the Indenture.
"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.
"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.
"Owner
Trustee" has the meaning specified in the Trust Agreement.
"PASS" has
the meaning specified in the preamble.
"PASS
Holding" means PASS Holding LLC.
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"Preliminary Prospectus" means the preliminary prospectus
supplement,
dated June 14, 2004, and the prospectus,
dated June 15, 2004, of the Purchaser
relating to the public offering by the
Purchaser of the Underwritten Notes.
"Prospectus" means the prospectus supplement, dated June 15, 2004,
and
the prospectus, dated June 15, 2004, of the
Purchaser relating to the public
offering by the Purchaser of the
Underwritten Notes.
"Purchaser" means PASS, in
its capacity as purchaser of the Receivables
under this Agreement, and its successors in
such capacity.
"Receivable" means each motor vehicle retail installment sale
contract
sold by the Seller to the Purchaser
pursuant to this Agreement and identified
on the Receivables Schedule.
"Receivable Files" has the meaning specified in the Sale and
Servicing
Agreement.
"Receivables Purchase Price" means $2,002,714,605.98.
"Receivables Schedule" means the schedule of Receivables attached
as
Schedule A.
"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 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 June 1, 2004, among the Issuer,
the Depositor, the Seller and the
Servicer.
"Securities" means the Notes and the Certificates.
"Securities Act" has the meaning specified in the Indenture.
"Securityholders" 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 - 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.
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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.
"Trust
Agreement" means the amended and restated trust agreement,
dated
as of June 1, 2004, 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
June
15, 2004, between PASS and the
Representative.
"Underwritten Notes" means the Class A Notes.
"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.
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
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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.
(a) The
Seller hereby sells, transfers, assigns, sets over and
otherwise
conveys 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,
the following:
(i) the Receivables listed in the Receivables Schedule;
(ii) all amounts due and collected on or in respect of the
Receivables (including proceeds of the repurchase of Receivables by
the
Seller
pursuant to Section 3.03(c)) after the Cutoff Date;
(iii) the security interests in the Financed Vehicles granted
by
the
Obligors pursuant to the Receivables;
(iv) all proceeds from claims on or refunds of premiums of any
physical
damage or theft insurance policies and extended warranties
covering
the Financed Vehicles and any proceeds or refunds of premiums
of any
credit life or credit disability insurance policies relating to
the
Receivables, the Financed Vehicles or the Obligors;
(v) the Receivable Files;
(vi) any proceeds of Dealer Recourse;
(vii) the right to realize upon any property (including the
right
to receive
future Liquidation Proceeds and Recoveries) that shall have
secured a
Receivable and have been repossessed by or on behalf of the
Issuer;
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 cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks,
deposit
accounts,
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 constitute all or
part
of or are
included in the proceeds of any of the foregoing.
(b) In
connection with the foregoing conveyance, the Seller further
agrees, at its own expense, on or prior to
the Closing Date to (i) annotate
and indicate in its books, records, and
computer files that the 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 Receivables Schedule containing a true
and complete list of the
Receivables, identified by
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account number and by the Principal Balance
as of the Cutoff Date, which file
or list 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
Receivable Files to or upon the order of
the Purchaser.
(c) The
parties hereto intend that the conveyance of the Receivables
and
related property hereunder be a sale and
not a loan. In the event that the
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 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
Receivables Purchase Price. If 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.
(d) 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. Receivables 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
Receivables Purchase Price. The Purchaser
shall pay the Seller
$1,966,390,092.07 of the Receivables
Purchase Price in cash or immediately
available funds. The remainder of the
Receivables Purchase Price shall be paid
by crediting the Seller with a contribution
to the capital of the Purchaser.
The Purchaser, as set forth in the Sale and
Servicing Agreement, shall
deposit, from funds it receives from the
sale of the Notes, the (i) Reserve
Fund Initial Deposit into the Reserve Fund
and (ii) Yield Supplement Account
Initial Deposit into the Yield Supplement
Account, each of which amount shall
be an asset of the Issuer. PASS Holding
shall receive and shall be the Holder
of, the Certificates.
(b) 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 Cutoff Date.
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
Section 2.01(a) 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 Section 2.01(a) 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.
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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 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 and to the
Underwriters, 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) (1) 0.00008090 and
(2) $993,037,000 and (b) (1) 0.00012670 and
(2) $1,006,963,000.
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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
and as of the Closing 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 and as of the Closing 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 fulfillment of the
terms
hereof and
thereof will not conflict with, result in a breach of any
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of the
terms and provisions of, or constitute (with or without notice
or
lapse of
time or both) a default under, its articles of incorporation or
bylaws,
nor conflict with or violate any of the material terms or
provisions
of, or constitute (with or without notice or lapse of time or
both) a
default under, any indenture, agreement or other instrument to
which it
is a party or by which it shall be bound; nor result in the
creation or
imposition of any Lien upon any of its properties pursuant
to the
terms of any such indenture, agreement or other instrument
(other
than this
Agreement); nor violate any law or, to its knowledge, any
order,
rule or regulation applicable to it of any court or of any
federal or
State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or its
properties, which breach, default, conflict, Lien or violation
would
have a
material adverse effect on the Seller's earnings, business
affairs or
business prospects or on the ability of the Seller to perform
its
obligations under this Agreement.
(d) No Proceedings. There are no proceedings or investigations
pending
or, to the Seller's knowledge, threatened against the Seller
before any
court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or
its
properties
(i) asserting the invalidity of this Agreement or any other
Basic
Document to which the Seller is a party, (ii) seeking to
prevent
the
issuance and delivery of the Securities, the sale of the Notes
or
the
consummation of any of the transactions contemplated by this
Agreement
or any other Basic Document to which the Seller is a party or
(iii)
seeking any determination or ruling that might materially and
adversely
affect the performance by the Seller of its obligations under,
or the
validity or enforceability of, this Agreement or any other
Basic
Document
to which the Seller is a party.
(e) Principal Executive Office. The chief executive office of
the
Seller is
One Wachovia Center, 301 South College Street, Charlotte,
North
Carolina 28288.
(f) No Consents. The Seller is not required to obtain the
consent
of any
other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental
authority,
bureau or
agency in connection with the execution, delivery,
performance, validity, or enforceability of this Agreement or any
other
Basic
Document to which it is a party that has not already been
obtained.
(g) Other Information. No certificate of an officer, statement
or
document
furnished in writing or report delivered pursuant to the terms
hereof by
the Seller contains any untrue statement of a material fact or
omits to
state any material fact necessary to make the certificate,
statement,
document or report not misleading.
(h) Solvency. The sale of the Receivables to the Purchaser is
not
being made
with any intent to hinder, delay or defraud any of its
creditors.
The Seller is not insolvent, nor will the Seller be made
insolvent
by the transfer of the Receivables, nor does the Seller
anticipate
any pending insolvency.
(i) Official Record. This Agreement is and shall remain at all
times
prior to the termination hereof an official record of the
Seller
as
referred to in Section 13(e) of the Federal Deposit Insurance Act,
as
amended by
12 U.S.C. Section 1823(e).
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(j) Prospectus. As of the date of the Prospectus and as of the
Closing
Date, the Seller Information does not include an untrue
statement
of a material fact or omit to state a material fact necessary
in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Section
3.03. Representations and Warranties as to the Receivables.
(a)
Eligibility of Receivables. The Seller makes the following
representations and warranties with respect
to the Receivables, on which the
Purchaser relies in accepting the
Receivables and in transferring the
Receivables to the Issuer under the Sale
and Servicing Agreement and on which
the Issuer relies in pledging the same to
the Indenture Trustee pursuant to
the Indenture. Such representations and
warranties speak as of the execution
and delivery of this Agreement and as of
the Cutoff Date, but shall survive
the sale, transfer and assignment of the
Receivables to the Purchaser, the
subsequent sale, transfer and assignment of
the Receivables by the Purchaser
to the Issuer pursuant to the Sale and
Servicing Agreement and the pledge of
the Receivables by the Issuer to the
Indenture Trustee pursuant to the
Indenture.
(i)
Characteristics of Receivables. Each Receivable (A) was
originated
in the United States by a Dealer located in the United States
for the
retail sale of a Financed Vehicle in the ordinary course of the
applicable
Dealer's business in accordance with the Seller's credit
policies
as of the date of origination or acquisition of the related
Receivable, is payable in United States dollars, has been fully
and
properly
executed by the parties thereto, has been purchased by the
Seller
from such Dealer under an existing Dealer Agreement (or
approved
form of
assignment) and has been validly assigned by such Dealer to the
Seller,
(B) has created a valid, subsisting and enforceable first
priority
security interest in favor of the Seller in the Financed
Vehicle,
which security interest shall be perfected and prior to any
other
interest in such Financed Vehicle, and which security interest
is
assignable
by the Seller and reassignable by the assignee, (C) contains
customary
and enforceable provisions such that the rights and remedies
of the
holder thereof are adequate for realization against the
collateral
of the benefits of the security, (D) shall, except as
otherwise
provided in the Sale and Servicing Agreement, provide for
level
Monthly Payments (provided that the payment in the first or
last
month in
the life of the Receivable may be minimally different from the
level
payment) that fully amortize the Amount Financed over its
original
term and
shall provide for a finance charge or shall yield interest at
its
Contract Rate, (E) is a Simple Interest Receivable, (F) is due
from
an Obligor
with a mailing addresses within the United States or its
territories, (G) to the best of the Seller's knowledge, is due from
an
Obligor
who is a natural person and (H) to the best of the Seller's
knowledge,
is not assumable by another person in a manner which would
release
the Obligor thereof from such Obligor's obligations to the
Seller
with respect to
