Exhibit 10.3
EXECUTION COPY
================================================================================
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller,
and
POOLED AUTO SECURITIES SHELF LLC,
as Purchaser
---------------------------------------------------------
RECEIVABLES PURCHASE AGREEMENT
Dated as of September 1, 2004
---------------------------------------------------------
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
<S>
<C>
<C>
Section 1.01.
Definitions...................................................................................
1
Section 1.02. Other Definitional
Provisions.................................................................
5
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
i
<PAGE>
Page
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>
ii
<PAGE>
RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement, dated as of September 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
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 $1,007,556,757.26 as of the
close of business on August 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-B (the "Issuer") pursuant to the
sale and servicing agreement, dated as of
September 1, 2004, among the Issuer,
PASS, as depositor, and Wachovia Bank, as
Seller and as 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.
"Amount Financed" has the meaning specified in the Sale and
Servicing
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.
"Closing Date" has the meaning specified in the Indenture.
<PAGE>
"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.
"Controlling Class" has the meaning specified in the Indenture.
"Cutoff Date" 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.
"Holder" has the meaning specified in the Trust Agreement.
"Indenture" means the indenture, dated as of September 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.
"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.
2
<PAGE>
"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.
"Principal Balance" has the meaning specified in the Sale and
Servicing
Agreement.
"Prospectus" means the prospectus supplement, dated August 24,
2004,
and the prospectus, dated August 24, 2004,
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.
"Purchaser" means PASS, in its capacity as purchaser of the
Receivables
under this Agreement, and its successors in
such capacity.
"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 Receivables Schedule.
"Receivable Files" has the meaning specified in the Sale and
Servicing
Agreement.
"Receivables Purchase Price" means $1,007,556,757.26.
"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 September 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.
3
<PAGE>
"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.
"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.
"Statistical Calculation Date" means July 31, 2004.
"Statistical Calculation Date Principal Balance" means the sum of
the
Principal Balances of selected Receivables
as of the Statistical Calculation
Date, which amount is equal to
$1,161,369,042.34.
"Structural Term Sheet" has the meaning specified in the
Underwriting
Agreement.
"Term Sheet" means the term sheet, dated August 20, 2004, of
the
Purchaser relating to the public offering
by the Purchaser of the Underwritten
Notes.
"Trust Agreement" means the amended and restated trust agreement,
dated
as of September 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
August
24, 2004, 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.
4
<PAGE>
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.
5
<PAGE>
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
6
<PAGE>
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 $998,067,386.00
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 Seller, as set
forth in the Sale and Servicing Agreement,
shall deposit, in part from funds it
receives from the sale of the Receivables,
the Reserve Fund Initial Deposit into
the Reserve Fund, 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.
7
<PAGE>
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 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) 0.00012670 and (b)
$1,000,000,000.
8
<PAGE>
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
9
<PAGE>
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
10
<PAGE>
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).
11
<PAGE>
(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. Except as otherwise provided,
such representations and warranties
speak as of the execution and delivery of
this Agreement and as of the Closing
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 realizati
