Exhibit 99.1
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WACHOVIA AUTO LOAN OWNER TRUST 2008-1,
as Issuer,
WDS RECEIVABLES LLC,
as Depositor,
WACHOVIA DEALER SERVICES, INC.,
as Seller
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
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SALE AND SERVICING AGREEMENT
Dated as of January 1, 2008
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions.................................................................................1
Section 1.02. Other Definitional Provisions......................................................................16
Section 1.03. Interpretive Provisions............................................................................16
ARTICLE TWO
CONVEYANCE OF TRUST PROPERTY
Section 2.01. Conveyance of Trust Property.......................................................................17
Section 2.02. Representations and Warranties of the Seller as to the Receivables.................................18
Section 2.03. Representations and Warranties of the Depositor as to the Receivables..............................19
Section 2.04. Repurchase of Receivables Upon Breach..............................................................20
Section 2.05. Custody of Receivable Files........................................................................20
Section 2.06. Duties of Master Servicer as Custodian.............................................................21
Section 2.07. Instructions; Authority to Act.....................................................................22
Section 2.08. Indemnification by Custodian.......................................................................22
Section 2.09. Effective Period and Termination...................................................................22
ARTICLE THREE
ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
Section 3.01. Duties of Master Servicer..........................................................................23
Section 3.02. Subservicers.......................................................................................24
Section 3.03. Collection of Receivable Payments; Modification of Receivables.....................................25
Section 3.04. Realization Upon Receivables.......................................................................26
Section 3.05. Maintenance of Physical Damage Insurance Policies..................................................27
Section 3.06. Maintenance of Security Interests in Financed Vehicles.............................................27
Section 3.07. Covenants of Master Servicer.......................................................................27
Section 3.08. Purchase of Receivables Upon Breach................................................................27
Section 3.09. Servicing Compensation; Payment of Certain Expenses by Master Servicer.............................28
Section 3.10. Master Servicer's Certificate......................................................................28
Section 3.11. Annual Statement as to Compliance; Notice of Servicer Termination Events...........................28
Section 3.12. Annual Accountants' Report.........................................................................29
Section 3.13. Access to Certain Documentation and Information Regarding Receivables..............................30
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Section 3.14. Reports to the Commission..........................................................................30
Section 3.15. Reports to Rating Agencies.........................................................................30
Section 3.16. Maintenance of the Swap Agreement..................................................................30
ARTICLE FOUR
DISTRIBUTIONS; RESERVE FUND; STATEMENTS TO SECURITYHOLDERS
Section 4.01. Establishment of Accounts..........................................................................31
Section 4.02. Reserve Fund.......................................................................................32
Section 4.03. The Collateral Support Account.....................................................................33
Section 4.04. Monthly Remittance Condition.......................................................................34
Section 4.05. Collections........................................................................................35
Section 4.06. Application of Collections.........................................................................35
Section 4.07. Advances...........................................................................................35
Section 4.08. Additional Deposits................................................................................36
Section 4.09. Determination Date Calculations; Application of Available Funds....................................36
Section 4.10. Statements to Securityholders......................................................................38
ARTICLE FIVE
THE DEPOSITOR
Section 5.01. Representations and Warranties of Depositor........................................................39
Section 5.02. Liability of Depositor; Indemnities................................................................40
Section 5.03. Merger, Consolidation or Assumption of the Obligations of Depositor;
Certain Limitations............................................................................41
Section 5.04. Limitation on Liability of Depositor and Others....................................................44
Section 5.05. Depositor Not to Resign............................................................................44
Section 5.06. Depositor May Own Securities.......................................................................44
ARTICLE SIX
THE MASTER SERVICER
Section 6.01. Representations and Warranties of Master Servicer..................................................46
Section 6.02. Liability of Master Servicer; Indemnities..........................................................47
Section 6.03. Merger, Consolidation or Assumption of the Obligations of Master Servicer..........................49
Section 6.04. Limitation on Liability of Master Servicer and Others..............................................49
Section 6.05. Wachovia Bank Not to Resign as Master Servicer.....................................................50
Section 6.06. Master Servicer May Own Securities.................................................................50
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ARTICLE SEVEN
SERVICER TERMINATION EVENTS
Section 7.01. Servicer Termination Events........................................................................51
Section 7.02. Appointment of Successor Master Servicer...........................................................52
Section 7.03. Effect of Servicing Transfer.......................................................................53
Section 7.04. Notification to Noteholders, Swap Counterparty, Certificateholders and Rating Agencies.............54
Section 7.05. Waiver of Past Servicer Termination Events.........................................................54
Section 7.06. Repayment of Advances..............................................................................54
ARTICLE EIGHT
TERMINATION
Section 8.01. Optional Purchase of All Receivables...............................................................55
ARTICLE NINE
EXCHANGE ACT REPORTING
Section 9.01. Further Assurances.................................................................................56
Section 9.02. Form 10-D Filings..................................................................................56
Section 9.03. Form 8-K Filings...................................................................................56
Section 9.04. Form 10-K Filings..................................................................................56
Section 9.05. Report on Assessment of Compliance and Attestation.................................................57
Section 9.06. Back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification...............................................................58
Section 9.07. Use of Subcontractors..............................................................................58
Section 9.08. Representations and Warranties.....................................................................58
Section 9.09. Indemnification....................................................................................59
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Amendment.........................................................................................61
Section 10.02. Protection of Title to Issuer.....................................................................62
Section 10.03. Notices...........................................................................................64
Section 10.04. Assignment........................................................................................65
Section 10.05. Severability......................................................................................65
Section 10.06. Further Assurances................................................................................65
Section 10.07. No Waiver; Cumulative Remedies....................................................................65
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Section 10.08. Successors and Assigns; Third-Party Beneficiaries.................................................65
Section 10.09. Actions by Securityholders........................................................................65
Section 10.10. Separate Counterparts.............................................................................66
Section 10.11. Headings..........................................................................................66
Section 10.12. GOVERNING LAW.....................................................................................66
Section 10.13. Nonpetition Covenants.............................................................................66
Section 10.14. Limitation of Liability of Owner Trustee and Indenture Trustee....................................66
Section 10.15. Obligations with Respect to the Swap Counterparty.................................................67
SCHEDULES
Schedule A - Location of Receivable Files......................................................................SA-1
Schedule B - Item 1119 Parties.................................................................................SB-1
Schedule C - Servicing and Disclosure Items....................................................................SC-1
Part I: Minimum Servicing Criteria (to be addressed in Assessment of
Compliance Statement)
Part II: Form 10-D Disclosure Items
Part III: Form 10-K Disclosure Items
Part IV: Form 8-K Disclosure (Reportable Events)
Schedule D - Performance Certification (Reporting Subcontractor) ..............................................SD-1
Schedule E - Performance Certification (Master Servicer) ......................................................SE-1
EXHIBITS
Exhibit A - Representations and Warranties as to the Receivables................................................A-1
Exhibit B - Form of Distribution Statement......................................................................B-1
Exhibit C - Form of Master Servicer's Certificate...............................................................C-1
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This Sale and Servicing Agreement, dated as of January 1, 2008, is among
WDS Receivables LLC, a Nevada limited liability company (the "Depositor"),
Wachovia Dealer Services, Inc., a California corporation (the "Seller"),
Wachovia Bank, National Association, a national banking association ("Wachovia
Bank"), as master servicer (in such capacity, the "Master Servicer"), and
Wachovia Auto Loan Owner Trust 2008-1, a Delaware statutory trust, as issuer
(the "Issuer").
WHEREAS, the Issuer desires to purchase from the Depositor receivables
arising in connection with motor vehicle retail installment sale contracts and
installment loans (the "Receivables") purchased or originated by the Seller in
the ordinary course of its business and sold to the Depositor as of the Closing
Date;
WHEREAS, the Depositor is willing to sell the Receivables to the Issuer
pursuant to the terms hereof; and
WHEREAS, the Master Servicer is willing to service the Receivables
pursuant to the terms hereof.
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:
ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Account Collateral" means, with respect to each Account, such Account,
together with all cash, securities, Financial Assets and investments and other
property from time to time deposited or credited to such Account and all
proceeds thereof, including, with respect to the Reserve Fund, the Reserve Fund
Deposit and the Reserve Fund Amount.
"Accounts" means the Collection Account, the Note Payment Account and the
Reserve Fund.
"Administration Agreement" means the administration agreement, dated as of
January 1, 2008, among the Administrator, the Issuer, the Depositor and the
Indenture Trustee.
"Administrator" means Wachovia Bank, in its capacity as administrator
under the Administration Agreement, and its successors in such capacity.
"Advance" has the meaning specified in Section 4.07(a).
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under common control with
such specified Person. For purposes of this definition, "control", when used
with respect to any specified Person, means the
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power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Sale and Servicing Agreement.
"Amount Financed" means, with respect to any Receivable, the aggregate
amount advanced under such Receivable toward the purchase price of the related
Financed Vehicle and any related costs, including accessories, insurance
premiums, service and warranty contracts and other items customarily financed as
part of a motor vehicle retail installment sale contract or installment loan.
"Available Collections" means, for any Distribution Date and the related
Collection Period, (i) all Obligor payments received by the Master Servicer with
respect to the Receivables during the related Collection Period that were
received after the Cutoff Date (other than amounts comprising the Supplemental
Servicing Fee), (ii) all Net Liquidation Proceeds, Insurance Proceeds (with
respect to Receivables that are not Defaulted Receivables), Recoveries and
Dealer Recourse received with respect to the Receivables during such Collection
Period, (iii) in the event that collections on or in respect of the Receivables
are required to be deposited by the Master Servicer into the Collection Account
on a daily basis pursuant to Section 4.04, all net investment earnings on funds
on deposit in the Collection Account, (iv) the aggregate Purchase Amounts
deposited in the Collection Account on the related Deposit Date, (v) Net Swap
Receipts received by the Issuer, excluding any portion of any swap termination
payment paid by the Swap Counterparty to the Issuer and used by the Issuer to
enter into an interest rate swap agreement that replaces the Swap Agreement,
(vi) all Prepayments received with respect to the Receivables during such
Collection Period attributable to any refunded item included in the Amount
Financed (including amounts received as a result of rebates of extended warranty
contract costs and insurance premiums and proceeds received under physical
damage, theft, credit life and credit disability insurance policies) and (vii)
all Advances deposited into the Collection Account by the Master Servicer on the
related Deposit Date; provided, however, that Available Collections shall not
include any payments or other amounts (including Net Liquidation Proceeds and
Recoveries) received with respect to any (a) Purchased Receivable, the Purchase
Amount for which was included in Available Collections for a previous
Distribution Date and (b) Receivable to the extent that the Master Servicer has
made an unreimbursed Advance with respect to such Receivable and is entitled to
reimbursement from payments in respect of such Receivables or other Receivables
or other amounts pursuant to Section 4.07.
"Available Funds" means, with respect to any Distribution Date, the sum of
(i) Available Collections and (ii) the Reserve Fund Draw Amount, if any.
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. ss.
101 et seq.
"Basic Documents" means this Agreement, the Administration Agreement, the
Indenture, the Control Agreement, the Note Depository Agreement, the Receivables
Purchase Agreement, the Swap Agreement, the Trust Agreement and any other
documents or certificates delivered in connection herewith or therewith
including the Power of Attorney pursuant to Section 1.02(c) of the
Administration Agreement.
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"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions or trust companies in New York, New York, Wilmington,
Delaware, St. ▇▇▇▇, Minnesota, Las Vegas, Nevada, Irvine, California or
Charlotte, North Carolina are authorized by law, regulation or executive order
to be closed.
"Certificate" has the meaning specified in the Trust Agreement.
"Certificate Payment Account" has the meaning specified in Section
4.01(b).
"Certificate Percentage Interest" has the meaning specified in the Trust
Agreement.
"Certificateholder" has the meaning specified in the Trust Agreement.
"Certification Parties" means, collectively, the Certifying Person and the
entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates.
"Certifying Person" means the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification.
"Class" has the meaning specified in the Indenture.
"Class A Notes" has the meaning specified in the Indenture.
"Class A-1 Notes" has the meaning specified in the Indenture.
"Class A-2a Notes" has the meaning specified in the Indenture.
"Class A-2b Notes" has the meaning specified in the Indenture.
"Class A-3 Notes" has the meaning specified in the Indenture.
"Class A-4 Notes" has the meaning specified in the Indenture.
"Class B Notes" has the meaning specified in the Indenture.
"Class C Notes" has the meaning specified in the Indenture.
"Class D Notes" has the meaning specified in the Indenture.
"Class E Final Scheduled Distribution Date" has the meaning specified in
the Indenture.
"Class E Notes" has the meaning specified in the Indenture.
"Closing Date" has the meaning specified in the Indenture.
"Code" has the meaning specified in the Indenture.
"Collateral Support Account" has the meaning specified in Section 4.03.
"Collection Account" has the meaning specified in Section 4.01(a).
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"Collection Period" has the meaning specified in the Indenture.
"Commission" means the United States Securities and Exchange Commission.
"Contract Rate" means, with respect to any Receivable, the annual
percentage rate of interest stated in such Receivable.
"Control" has the meaning specified in Section 8-106 of the UCC.
"Control Agreement" means the control agreement, dated as of January 1,
2008, among the Issuer, the Master Servicer, Wachovia Bank and the Indenture
Trustee, relating to the Accounts held by Wachovia Bank.
"Controlling Class" has the meaning specified in the Indenture.
"Corporate Trust Office" has the meaning specified in the Indenture or the
Trust Agreement, depending on whether reference is made to the Indenture Trustee
or the Owner Trustee.
"Cumulative Net Loss Percentage" has the meaning specified in the
Indenture.
"Cutoff Date" means January 19, 2008, the date after which the Issuer will
be entitled to receive all amounts related to the Receivables.
"Cutoff Date Pool Balance" means the aggregate Principal Balance of the
Receivables as of the Cutoff Date, which is $598,802,396.13.
"Dealer" means the dealer of motor vehicles who sold a Financed Vehicle
and who originated and assigned the Receivable relating to such Financed Vehicle
to the Seller under an existing agreement between such dealer and the Seller.
"Dealer Agreement" means an agreement between the Seller and a Dealer,
entered into by the Seller in the ordinary course of its business, providing for
the sale of Receivables by the Dealer to the Seller.
"Dealer Recourse" means, with respect to a Receivable, all recourse rights
against the Dealer which originated the Receivable, and any successor to such
Dealer.
"Defaulted Receivable" means a Receivable as to which, the earlier of (i)
any payment, or any part of any payment, due under such Receivable has become
120 days or more delinquent (whether or not the Master Servicer has repossessed
the related Financed Vehicle), (ii) the Master Servicer has repossessed and sold
the related Financed Vehicle or (iii) the Master Servicer has charged off any
portion of the Principal Balance of the Receivable or has determined in
accordance with its customary practices that such Receivable is uncollectible;
provided, however, that (a) a Receivable will not become a Defaulted Receivable
until the last day of the Collection Period during which one of the foregoing
events first occurs and (b) a Purchased Receivable will not be deemed to be a
Defaulted Receivable.
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"Deposit Date" means, with respect to any Distribution Date and the
related Collection Period, the Business Day immediately preceding such
Distribution Date.
"Depositor" has the meaning specified in the Trust Agreement.
"Determination Date" means, with respect to any Distribution Date, the
third Business Day preceding such Distribution Date, commencing on March 17,
2008.
"Distribution Date" has the meaning specified in the Indenture.
"Eligible Deposit Account" means either (i) a segregated deposit account
over which the Indenture Trustee or the Owner Trustee, as the case may be, has
sole signature authority, maintained with an Eligible Institution meeting the
requirements of clause (i) of the definition of the term "Eligible Institution"
or (ii) a segregated trust account maintained with the trust department of an
Eligible Institution meeting the requirements of clause (ii) of the definition
of the term "Eligible Institution", in each case bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Securityholders, the Noteholders or the Certificateholders, as the case may be.
"Eligible Institution" means (i) Wachovia Bank, the corporate trust
department of the Indenture Trustee or the corporate trust department of the
Owner Trustee or (ii) the corporate trust department of any other depository
institution organized under the laws of the United States or any State or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States or any State qualified to take deposits and subject
to supervision and examination by federal or state banking authorities (a) which
at all times has either (1) a long-term unsecured debt rating of at least "BBB"
from Standard & Poor's, "Baa2" from Moody's and "BBB" from Fitch, or (2) a
long-term unsecured debt rating, short-term unsecured debt rating or a
certificate of deposit rating otherwise acceptable to the Rating Agencies and
(b) whose deposits are insured by the Federal Deposit Insurance Corporation.
"Eligible Investments" means, at any time, any one or more of the
following obligations, instruments, investments and securities:
(i)direct obligations of, and obligations fully guaranteed by, the
United States or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States;
(ii) demand deposits, time deposits, bankers' acceptances or
certificates of deposit, having maturities of not more than 365 days, of
any depository institution or trust company incorporated under the laws of
the United States or any State (or any domestic branch of a foreign bank)
and subject to supervision and examination by federal or State banking or
depository institution authorities; provided, however, that (a) such
investment shall not have an `r' highlighter affixed to its rating and its
terms shall have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change and (b) at the time of the investment,
the commercial paper or other short-term unsecured debt obligations (other
than such obligations the rating of which is based on the credit of a
Person other than such depository institution or trust company) of such
depository institution or trust company shall have the highest rating from
each Rating Agency;
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(iii) repurchase obligations, having maturities of not more than 365
days, with respect to any security that is a direct obligation of, or
fully guaranteed by, the United States or any agency or instrumentality
thereof the obligations of which are backed by the full faith and credit
of the United States, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii) above;
(iv) short-term corporate securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the
United States or any State thereof; provided, however, that (a) such
investment shall not have an `r' highlighter affixed to its rating and its
terms shall have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change and (b) at the time of the investment,
the short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
corporation) of such corporation shall have the highest rating from each
Rating Agency;
(v) commercial paper having, maturities of not more than 365 days,
at the time of the investment, with the highest rating from each Rating
Agency; provided, however, that such investment shall not have an `r'
highlighter affixed to its rating and its terms shall have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change;
(vi) guaranteed investment contracts issued by an insurance company
or other corporation as to which the Rating Agency Condition shall have
been satisfied;
(vii) investments in money market funds having a rating from
Standard & Poor's of at least "AAA-m" or "AAAm-G", from Moody's of at
least "Aaa" and from Fitch of at least "AAA" (including funds for which
the Indenture Trustee, the Owner Trustee, the Master Servicer or any of
their respective Affiliates is investment manager or advisor); and
(viii) any other investment as to which the Rating Agency Condition
shall have been satisfied; provided, however, that in no event shall any
such investment have a long-term rating of less than "AA" from Standard &
Poor's, "Aaa" from Moody's and "AA" from Fitch, or a short-term rating of
less than "A-1" from Standard & Poor's, "Prime-1" from Moody's and "F1"
from Fitch;
provided, that each of the foregoing investments shall mature no later than the
Deposit Date immediately following the Collection Period in which such
investment was made (other than in the case of the investment of monies in
instruments of which the entity at which the related Account, as the case may
be, is located is the obligor, which may mature on the related Distribution Date
following the Collection Period in which such investment was made), and shall be
required to be held to such maturity.
Notwithstanding anything to the contrary contained in this definition, (a)
no Eligible Investment may be purchased at a premium, (b) no obligation or
security shall be a "Eligible Investment" unless (i) the Indenture Trustee has
Control over such obligation or security and (ii) at the time the Indenture
Trustee first obtained Control or the Indenture Trustee became the Entitlement
Holder with respect to such obligation or security, the Indenture Trustee did
not have
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notice of any adverse claim with respect thereto within the meaning of Section
8-102 of the UCC and (c) with respect to investments above that require a rating
of "A-1+" from Standard and Poor's, such investments in certain short-term debt
of issuers or deposits in institutions rated "A-1" by Standard & Poor's will be
permitted so long as (1) the total amount of investments in "A-1" issuers or
deposits in "A-1" institutions must be limited to investments of the amount on
deposit in the Collection Account and (2) the total amount of "A-1" investments
shall not represent more than 20% of the Note Balance as of any date.
For purposes of this definition, any reference to the highest available
credit rating of an obligation means the highest available credit rating for
such obligation, or such lower credit rating (as approved in writing by each
Rating Agency) as will not result in the qualification, downgrading or
withdrawal of the rating then assigned to any Securities by such Rating Agency.
"Eligible Servicer" means a Person which, at the time of its appointment
as Master Servicer, (i) has a net worth of not less than $50,000,000, (ii) is
servicing a portfolio of motor vehicle retail installment sale contracts or
motor vehicle loans, (iii) is legally qualified, and has the capacity, to
service the Receivables, (iv) has demonstrated the ability to service a
portfolio of motor vehicle retail installment sale contracts or motor vehicle
loans similar to the Receivables professionally and competently in accordance
with standards of skill and care that are consistent with prudent industry
standards and (v) is qualified and entitled to use pursuant to a license or
other written agreement, and agrees to maintain the confidentiality of, the
software which the Master Servicer uses in connection with performing its duties
and responsibilities under this Agreement or obtains rights to use, or develops
at its own expense, software which is adequate to perform its duties and
responsibilities under this Agreement.
"Entitlement Holder" has the meaning specified in Section 8-102 of the
UCC.
"Entitlement Order" has the meaning specified in Section 8-102 of the UCC.
"Event of Default" has the meaning specified in the Indenture.
"Excess Collections" has the meaning specified in the Indenture.
"Exchange Act" has the meaning specified in the Indenture.
"Exchange Act Reports" means any reports on Form 10-D, Form 8-K or Form
10-K required to be filed by the Depositor with respect to the Issuer under the
Exchange Act.
"Fifth Principal Distributable Amount" has the meaning specified in the
Indenture.
"Final Scheduled Distribution Date" has the meaning specified in the
Indenture.
"Financed Vehicle" means, with respect to any Receivable, the related new
or used motor vehicle, together with all accessions thereto, securing the
related Obligor's indebtedness under such Receivable.
"Financial Asset" has the meaning specified in Section 8-102(a)(9) of the
UCC.
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"Fitch" has the meaning specified in the Indenture.
"Form 10-D Disclosure Item" means, with respect to any Person, any event
specified in Part II of Schedule C for which such Person is the responsible
party, if such Person or in the case of the Owner Trustee or Indenture Trustee,
a Responsible Officer of such Person, has actual knowledge of such event.
"Form 10-K Disclosure Item" means, with respect to any Person, (i) any
Form 10-D Disclosure Item and (ii) any additional items specified in Part II of
Schedule C for which such Person is the responsible party, or if such Person is
the Indenture Trustee or the Owner Trustee, a Responsible Officer of such Person
that has actual knowledge of such event.
"Fourth Principal Distributable Amount" has the meaning specified in the
Indenture.
"Holder" has the meaning specified in the Indenture.
"Indenture" means the indenture, dated as of January 1, 2008, between the
Issuer and the Indenture Trustee.
"Indenture Trustee" has the meaning specified in the Indenture.
"Independent" has the meaning specified in the Indenture.
"Initial Note Balance" means, as the context may require, with respect to
(i) all of the Notes, $598,802,000.00 or (ii) any Note, an amount equal to the
initial denomination of such Note.
"Insolvency Event" means with respect to the Depositor or the Master
Servicer, (i) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person or any substantial part
of the assets of such Person in an involuntary case under any applicable federal
or State bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of such Person or for any substantial part of the assets of
such Person, or ordering the winding-up or liquidation of such Person's affairs,
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (ii) the commencement by such Person of a voluntary case
under any applicable federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by such Person to the entry of an
order for relief in an involuntary case under any such law, or the consent by
such Person to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of such person or
for any substantial part of the assets of such Person, or the making by such
Person of any general assignment for the benefit of creditors, or the failure by
such Person generally to pay its debts as such debts become due, or the taking
of any action by such Person in furtherance of any of the foregoing.
"Insurance Proceeds" means proceeds paid by any insurer under a
comprehensive and collision or limited dual interest insurance relating to a
Receivable, other than funds used for the repair of the related Financed Vehicle
or otherwise released to the related Obligor in accordance
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with normal servicing procedures, after reimbursement to the Master Servicer for
expenses recoverable under the related insurance policy.
"Interest Distributable Amount" has the meaning specified in the
Indenture.
"Interest Rate" has the meaning specified in the Indenture.
"Issuer" has the meaning specified in the Indenture.
"Item 1119 Party" means the Depositor, the Seller, the Master Servicer,
the Indenture Trustee, the Owner Trustee and any other material transaction
party, as identified in Schedule B hereto.
"Lien" means any security interest, lien, claim, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' or materialmen's liens,
judicial liens and any liens that may attach to a Financed Vehicle by operation
of law.
"Master Servicer" means Wachovia Bank, in its capacity as master servicer
of the Receivables under this Agreement, and its successors in such capacity.
"Master Servicer's Certificate" means an Officer's Certificate signed by a
Servicing Officer delivered pursuant to Section 3.10, substantially in the form
of Exhibit C.
"Monthly Payment" means, with respect to any Receivable, the amount of
each fixed monthly payment payable to the obligee under such Receivable in
accordance with the terms thereof, net of any portion of such monthly payment
that represents late payment charges, extension fees or similar items.
"Monthly Remittance Condition" means that (i) (a) Wachovia Bank is the
Master Servicer, (b) Wachovia Bank's short-term unsecured debt is rated at least
"A-1" by Standard & Poor's, "Prime-1" by Moody's and "F1" by Fitch and (c) no
Servicer Termination Event shall have occurred and be continuing or (ii) each
Rating Agency has agreed in writing that the deposit of collections on or in
respect of the Receivables into the Collection Account may be made by the Master
Servicer on a monthly, rather than a daily, basis, without such monthly deposits
adversely impacting the ratings of any Outstanding Notes.
"Monthly Servicing Fee" means, for any Collection Period, the fee payable
to the Master Servicer on the related Distribution Date for services rendered
during such Collection Period, which is equal to the product of 1/12 of 1.25%
and the Pool Balance as of the first day of that Collection Period (or as of the
Cutoff Date in the case of the first Distribution Date).
"Monthly Trustee Fees" has the meaning specified in the Indenture.
"Moody's" has the meaning specified in the Indenture.
"Motor Vehicle Receivables" has the meaning specified in Section
5.03(b)(ii)(A).
"Motor Vehicle Securities" has the meaning specified in Section
5.03(b)(ii)(B).
9
"Net Liquidation Proceeds" means all amounts received by the Master
Servicer from whatever source (including Insurance Proceeds) with respect to any
Defaulted Receivable during the Collection Period in which such Receivable
became a Defaulted Receivable, minus the sum of:
(i) expenses incurred by the Master Servicer in connection with
collection of such Defaulted Receivable and the repossession and
disposition of the related Financed Vehicle (to the extent not previously
reimbursed to the Master Servicer); and
(ii) all payments required by law to be remitted to the Obligor.
"Net Losses" means, with respect to any Collection Period, the difference
(which may be positive or negative) of (i) the aggregate Principal Balance of
all Receivables that became Defaulted Receivables during such Collection Period
and (ii) the aggregate Net Liquidation Proceeds and Recoveries received by the
Master Servicer during such Collection Period.
"Net Swap Payment" has the meaning specified in the Indenture.
"Net Swap Receipts" means, with respect to any Distribution Date, the net
amount paid by the Swap Counterparty to the Issuer pursuant to the Swap
Agreement on such date, including in connection with any swap termination
payment.
"Nonrecoverable Advance" means an Advance which the Master Servicer
determines in its sole discretion is not recoverable from payments made on or in
respect of the related Receivable.
"Note Balance" has the meaning specified in the Indenture.
"Note Depository Agreement" has the meaning specified in the Indenture.
"Note Payment Account" has the meaning specified in Section 4.01(a).
"Note Factor" means, with respect to each Class of Notes as of any
Distribution Date, a four or more digit decimal figure equal to the product of
(a) the Note Balance of such Class of Notes as of such Distribution Date (after
giving effect to any reductions thereof to be made on such Distribution Date)
and (b) 1,000, divided by (c) the original principal amount of such Class of
Notes.
"Noteholder" has the meaning specified in the Indenture.
"Notes" has the meaning specified in the Indenture.
"Obligor" means, with respect to any Receivable, the purchaser or
co-purchasers of the related Financed Vehicle purchased in part or in whole by
the execution and delivery of a Receivable or any other Person who owes or may
be liable for payments under a Receivable.
10
"Officer's Certificate" means a certificate signed by the chairman, the
president, any Vice President, the treasurer or the secretary of the Depositor
or the Master Servicer, as the case may be, and delivered to the Indenture
Trustee or the Owner Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise provided in this Sale and Servicing Agreement, be an
employee of, or outside counsel to, the Issuer, the Depositor, the Seller or the
Master Servicer, which counsel shall be acceptable to the related Trustee or the
Rating Agencies, as the case may be.
"Outstanding" has the meaning specified in the Indenture.
"Overcollateralization Amount" means, with respect to any date, the amount
by which the Pool Balance (as of the last day of the most recent Collection
Period) exceeds the Note Balance.
"Overcollateralization Target Amount" has the meaning specified in the
Indenture.
"Owner Trust Estate" has the meaning specified in the Trust Agreement.
"Owner Trustee" has the meaning specified in the Trust Agreement.
"Performance Certification" means each certification delivered to the
Certifying Person pursuant to Section 9.06.
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, limited liability partnership, trust, unincorporated
organization or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Pool Balance" means, as of any date, the aggregate Principal Balance of
the Receivables as of such date; provided, however, that if the Receivables are
purchased by the Master Servicer pursuant to Section 8.01(a) or are sold or
otherwise liquidated by the Indenture Trustee following an Event of Default
pursuant to Section 5.04 of the Indenture, the Pool Balance shall be deemed to
be zero as of the last day of the Collection Period during which such purchase,
sale or other liquidation occurs.
"Prepayment" means any prepayment, whether in part or in full, in respect
of a Receivable.
"Principal Balance" means, with respect to any Receivable as of any date,
the Amount Financed under such Receivable minus the sum of (i) that portion of
all Monthly Payments actually received on or prior to such date allocable to
principal using the Simple Interest Method, (ii) any rebates of extended
warranty contract costs and physical damage, theft, credit life or credit
disability insurance premiums included in the Amount Financed and (iii) any
Prepayment applied to reduce the unpaid principal balance of such Receivable;
provided, however, that the Principal Balance of a (a) Defaulted Receivable
shall be zero as of the last day of the Collection Period during which it became
a Defaulted Receivable and (b) Purchased Receivable shall be zero as of the last
day of the Collection Period during which it became a Purchased Receivable.
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"Priority Principal Distributable Amount" has the meaning specified in the
Indenture.
"Provided Information" means, with respect to (i) the Indenture Trustee,
the Servicing Criteria Assessment provided under Article Nine by or on behalf of
the Indenture Trustee and (ii) the Master Servicer, the information provided
pursuant to Section 3.11 and Section 3.12, by or on behalf of the Master
Servicer.
"Purchase Amount" means the price at which the Seller must repurchase or
the Master Servicer must purchase a Receivable in an amount equal to the sum of
(i) the Principal Balance of such Receivable plus (ii) the amount of accrued but
unpaid interest on such Principal Balance at the related Contract Rate to the
last day of the month of repurchase.
"Purchased Receivable" means a Receivable purchased or repurchased, as
applicable, as of the last day of a Collection Period as to which payment of the
Purchase Amount has been made by the Seller pursuant to Section 2.04 or Section
8.01 of this Agreement or Section 3.03(c) of the Receivables Purchase Agreement
or by the Master Servicer pursuant to Section 3.08.
"Rating Agency" has the meaning specified in the Indenture.
"Rating Agency Condition" has the meaning specified in the Indenture.
"Receivable" means each motor vehicle retail installment sales contract
and installment loan transferred by the Depositor to the Issuer hereunder on the
Closing Date, and all rights and obligations thereunder.
"Receivable Files" has the meaning specified in Section 2.05.
"Receivables Purchase Agreement" means the receivables purchase agreement,
dated as of January 1, 2008, between the Seller and the Depositor.
"Recoveries" means, with respect to any Collection Period following the
Collection Period in which a Receivable became a Defaulted Receivable, all
amounts received by the Master Servicer from whatever source (including
Insurance Proceeds) with respect to such Defaulted Receivable during such
Collection Period, minus the sum of:
(i) expenses incurred by the Master Servicer in connection with the
collection of such Defaulted Receivable and the repossession and
disposition of the related Financed Vehicle (to the extent not previously
reimbursed to the Master Servicer); and
(ii) all payments required by law to be remitted to the related
Obligor.
"Regular Principal Distributable Amount" has the meaning specified in the
Indenture.
"Regulation AB" means subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, subject to such
clarification and interpretation as has been provided by the Commission in the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or
as may be provided by the Commission or its staff from time to time.
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"Reportable Event" means any event required to be reported on Form 8-K,
including each event specified on Part IV of Schedule C (i) for which such
Person is the responsible party and (ii) of which such Person (or in the case of
the Indenture Trustee, as Responsible Officer of such Person) has actual
knowledge.
"Reporting Subcontractor" shall mean any Subcontractor determined pursuant
to Section 9.07 to be "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB.
"Required Payment Amount" has, with respect to each Distribution Date, the
meaning specified in Section 4.09(a).
"Reserve Fund" means the account designated as such, and established and
maintained pursuant to Section 4.01.
"Reserve Fund Amount" means, with respect to any Distribution Date, the
amount on deposit in and available for withdrawal from the Reserve Fund on such
Distribution Date (after giving effect to all deposits to and withdrawals from
the Reserve Fund on the preceding Distribution Date or the Closing Date in the
case of the first Distribution Date), including all interest and other
investment earnings (net of losses and investment expenses) earned on such
amount on deposit therein during the related Collection Period.
"Reserve Fund Deposit" means an amount equal to $2,994,011.98.
"Reserve Fund Draw Amount" has the meaning specified in Section
4.09(b)(i).
"Reserve Fund Property" means the Reserve Fund and all amounts,
securities, investments, Financial Assets and other property deposited in or
credited to the Reserve Fund.
"Reserve Fund Required Amount" means, for any Distribution Date, an amount
equal to 0.50% of the Cutoff Date Pool Balance; provided, however, that the
Reserve Fund Required Amount (i) may not exceed the Note Balance and (ii) will
be zero if the Pool Balance as of the last day of the related Collection Period
is zero.
"Responsible Officer" means, in the case of (i) the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture, including any principal,
managing director, president, Vice President, assistant treasurer, assistant
secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above-designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject and (ii) the Owner Trustee, any officer in the Corporate
Trust Administration department of the Owner Trustee with direct responsibility
for the administration of the Issuer and, with respect to a particular corporate
trust matter, any other officer of the Owner Trustee to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
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"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification" means the certification concerning the
Issuer, to be signed by an officer of the Master Servicer or the Depositor and
submitted to the Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"Schedule of Receivables" means the schedule of Receivables attached as
Schedule A to the Receivables Purchase Agreement.
"Secondary Principal Distributable Amount" has the meaning specified in
the Indenture.
"Securities Act" means the Securities Act of 1933.
"Securitization Trust" has the meaning specified in Section 5.03(b)(ii).
"Security Entitlement" has the meaning specified in Section 8-102(a)(17)
of the UCC.
"Securityholders" means the Noteholders and the Certificateholders.
"Seller" has the meaning specified in the Receivables Purchase Agreement.
"Senior Swap Termination Payment" has the meaning specified in the
Indenture.
"Servicer Termination Event" has the meaning specified in Section 7.01.
"Servicer Termination Notice" has the meaning specified in Section 7.01.
"Servicing Criteria" shall mean the "servicing criteria" set forth in Item
1122(d) of Regulation AB.
"Servicing Criteria Assessment" means a report of the Indenture Trustee's
assessment of compliance with the Servicing Criteria (as identified
substantially in the form of Part I of Schedule C hereto, with the Indenture
Trustee being shown as the "Responsible Party") during the immediately preceding
calendar year, as set forth under Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB.
"Servicing Officer" means any officer of the Master Servicer involved in,
or responsible for, the administration and servicing of the Receivables whose
name appears on a list of servicing officers attached to an Officer's
Certificate furnished on the Closing Date to the Trustees by the Master
Servicer, as such list may be amended from time to time by the Master Servicer
in writing.
"Simple Interest Method" means the method of allocating a fixed level
payment between principal and interest, pursuant to which a portion of such
payment is allocated to interest in an amount equal to the product of the
Contract Rate of the related Receivable multiplied by the unpaid Principal
Balance of such Receivable multiplied by the period of time (expressed as a
fraction of a year, based on the actual number of days in the applicable
calendar month and a 365-day year) elapsed since the preceding payment was made
and the remainder of such payment is allocated to principal.
14
"Simple Interest Receivable" means any Receivable under which each payment
is allocated between principal and interest in accordance with the Simple
Interest Method.
"Standard & Poor's" has the meaning specified in the Indenture.
"State" has the meaning specified in the Indenture.
"Subcontractor" means any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the asset-backed securities market) of Receivables but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Receivables under the direction or authority of the
Indenture Trustee or the Master Servicer.
"Subordinated Swap Termination Payment" has the meaning specified in the
Indenture.
"Successor Master Servicer" means any entity appointed as a successor to
the Master Servicer pursuant to Section 7.02.
"Supplemental Servicing Fee" means the sum of (i) all extension fees
charged in connection with extensions of Receivables and (ii) any administration
fees and charges and all late payment fees and Prepayment fees actually
collected (from whatever source) on the Receivables.
"Swap Agreement" has the meaning specified in the Indenture.
"Swap Counterparty" has the meaning specified in the Indenture.
"Swap Termination Payment" has the meaning specified in the Indenture.
"Third Principal Distributable Amount" has the meaning specified in the
Indenture.
"Total Servicing Fee" means, for any Collection Period and the related
Distribution Date, the sum of (i) the Monthly Servicing Fee for such Collection
Period and (ii) all accrued but unpaid Monthly Servicing Fees for one or more
prior Collection Periods.
"Total Trustee Fees" has the meaning specified in the Indenture.
"Transition Costs" means the reasonable costs and expenses (including
reasonable attorneys' fees but excluding overhead) incurred or payable by the
Successor Master Servicer in connection with the transfer of servicing (whether
due to termination, resignation or otherwise), including allowable compensation
of employees and overhead costs incurred or payable in connection with the
transfer of the Receivable Files or any amendment to this Agreement required in
connection with the transfer of servicing.
"Trust Agreement" means the amended and restated trust agreement, dated as
of January 1, 2008, between the Depositor and the Owner Trustee.
"Trust Property" means, as of any date, the Receivables and other property
related thereto sold, transferred, assigned and conveyed to the Issuer pursuant
to Section 2.01(a).
15
"Trustees" has the meaning specified in the Indenture.
"UCC" has the meaning specified in the Indenture.
"United States" has the meaning specified in the Indenture.
"Vice President" of any Person means any vice president of such Person,
whether or not designated by a number or words before or after the title "Vice
President", who is a duly elected officer of such Person.
"Wachovia Bank" means Wachovia Bank, National Association.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined herein
shall have the meanings ascribed thereto in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
Section 1.03. Interpretive Provisions. 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, Schedule and Exhibit
references 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 TRUST PROPERTY
Section 2.01. Conveyance of Trust Property.
(a) In consideration of the Issuer's delivery to or upon the order of the
Depositor on the Closing Date of authenticated Notes, in authorized
denominations in an aggregate principal amount equal to the Initial Note
Balance, and authenticated Certificates, the Depositor hereby irrevocably sells,
transfers, assigns and otherwise conveys 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, and wheresoever located, in, to and under the following:
(i) the Receivables and 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 2.04 or 8.01 or the purchase
of Receivables by the Master Servicer pursuant to Section 3.08) after the
Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Receivables and any other interest of the
Depositor in such Financed Vehicles;
(iii) all proceeds from claims on and 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
Receivables, the related Financed Vehicles or the related Obligors;
(iv) the Receivable Files that relate to the Receivables;
(v) any proceeds of Dealer Recourse that relate to the Receivables;
(vi) the Collection Account, the Note Payment Account, the Reserve
Fund and all amounts, securities, Financial Assets, investments and other
property deposited in or credited to any of the foregoing and all proceeds
thereof;
(vii) all rights of the Depositor, but none of the obligations,
under the Receivables Purchase Agreement, including the right to require
the Seller to repurchase Receivables from the Issuer;
(viii) the right to realize upon any property (including the right
to receive future Net Liquidation Proceeds and Recoveries) that shall have
secured a Receivable and have been repossessed by or on behalf of the
Issuer; and
(ix) 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,
17
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, instruments and other property which at any
time constitutes all or part of, or is included in, the proceeds of any of
the foregoing.
(b) The Depositor and the Issuer intend that the transfer of Trust
Property contemplated by Section 2.01(a) constitute a sale of such Trust
Property from the Depositor to the Issuer, conveying good title to the Trust
Property free and clear of any Liens and, in the event of the filing of a
bankruptcy petition by or against the Depositor under any bankruptcy or similar
law, that the Trust Property shall not be part of the Depositor's estate.
However, in the event that any such transfer is deemed to be a pledge, the
Depositor hereby grants to the Issuer a first priority security interest in all
of the Depositor's right, title and interest in, to and under such Trust
Property, and all proceeds thereof, to secure the payment of the Notes and
accrued interest thereon and all other amounts owing under the Basic Documents
and in such event, this Agreement shall constitute a security agreement under
applicable law.
(c) The sales, transfers, assignments and conveyances of Trust Property
made under this Section shall not constitute, and is not intended to result in,
an assumption by the Issuer of any obligation of the Depositor or the Seller to
the Obligors or any other Person in connection with the Receivables and the
other Trust Property or any obligation of the Depositor or the Seller under any
agreement, document or instrument related thereto.
Section 2.02. Representations and Warranties of the Seller as to the
Receivables. The Seller has made, under the Receivables Purchase Agreement, each
of the representations and warranties as to the Receivables set forth in Exhibit
A. The Issuer shall be deemed to have relied on such representations and
warranties in accepting the Receivables. The representations and warranties set
forth in Exhibit A speak as of the date of execution and delivery of this
Agreement and as of the Closing Date, except to the extent otherwise provided,
but shall survive the sale, transfer, assignment and conveyance of the
Receivables to the Issuer pursuant to this Agreement and the pledge of the
Receivables to the Indenture Trustee pursuant to the Indenture. Pursuant to
Section 2.01(a), the Depositor has sold, transferred, assigned and otherwise
conveyed to the Issuer, as part of the Trust Property, its rights under the
Receivables Purchase Agreement, including its right to require the Seller to
repurchase Receivables in accordance with the Receivables Purchase Agreement
upon a breach of the representations and warranties set forth in Exhibit A.
The Seller hereby agrees that the Issuer shall have the right to enforce
any and all rights under the Receivables Purchase Agreement assigned to the
Issuer under this Agreement, including the right to require the Seller to
repurchase Receivables in accordance with the Receivables Purchase Agreement
upon a breach of the representations and warranties set forth in Exhibit A,
directly against the Seller as though the Issuer were a party to the Receivables
Purchase Agreement and that the Issuer shall not be obligated to enforce any
such right indirectly through the Depositor.
18
Section 2.03. Representations and Warranties of the Depositor as to the
Receivables. The Depositor makes the following representations and warranties as
to the Receivables on which the Issuer shall be deemed to have relied in
accepting the Receivables. The representations and warranties speak as of the
date of execution and delivery of this Agreement and as of the Closing Date,
except to the extent otherwise provided, but shall survive the sale, transfer,
assignment and conveyance of the Receivables to the Issuer pursuant to this
Agreement and the pledge of the Receivables to the Indenture Trustee pursuant to
the Indenture.
(a) Title. The Depositor has purchased the Receivables from the
Seller. The Depositor intends that the transfer of the Receivables
contemplated by Section 2.01 constitute a sale of the Receivables from the
Depositor to the Issuer and that the beneficial interest in, and title to,
the Receivables not be part of the Depositor's estate in the event of the
filing of a bankruptcy petition by or against the Depositor under any
bankruptcy law. The Depositor has not sold, transferred, assigned or
pledged any Receivable to any Person other than the Issuer. The Depositor
has not created, incurred or suffered to exist any Lien on any Receivable
except for the Lien of (i) this Agreement and (ii) the Indenture.
(b) Security Interest Matters. This Agreement creates a valid and
continuing "security interest" (as defined in the UCC) in the Receivables
in favor of the Issuer, which security interest is prior to all other
Liens and is enforceable as such as against creditors of and purchasers
from the Depositor. The Receivables constitute "tangible chattel paper"
(as defined in the UCC). The Depositor owns and has good and marketable
title to the Receivables free and clear of Liens. The Depositor has caused
or will cause prior to the Closing Date the filing of all appropriate
financing statements in the proper filing offices in the appropriate
jurisdictions under applicable law necessary to perfect the security
interest in the Receivables granted to the Issuer under this Agreement.
Other than the security interest granted to the Issuer under this
Agreement, the Depositor has not pledged, assigned, sold, granted a
security interest in or otherwise conveyed any of the Receivables. The
Depositor has not authorized the filing of and is not aware of any
financing statements against the Depositor that include a description of
collateral covering the Receivables other than any financing statement
relating to the security interest granted to the Issuer under this
Agreement or that has been terminated. The Depositor is not aware of any
judgment or tax lien filings against the Depositor. The security interest
of the Seller in each Financed Vehicle has been validly assigned by the
Depositor to the Issuer.
(c) Financing Statements. All financing statements filed or to be
filed against the Depositor in favor of the Indenture Trustee (as assignee
of the Issuer) contain a statement substantially to the following effect:
"A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Indenture Trustee".
(d) No Transfer Restrictions. The Depositor has not created,
incurred or suffered to exist any restriction on transferability of the
Receivables except for the restrictions on transferability imposed by this
Agreement. The transfer of the Receivables and the Receivable Files by the
Depositor to the Issuer pursuant to this Agreement is not subject to the
bulk transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction.
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Section 2.04. Repurchase of Receivables Upon Breach. The Depositor, the
Seller, the Master Servicer or the Owner Trustee, as the case may be, shall
inform the other parties to this Agreement and the Indenture Trustee promptly,
in writing, upon the discovery of any breach or failure to be true of the
representations and warranties set forth in Exhibit A. If such breach or failure
shall not have been cured by the close of business on the last day of the
Collection Period which includes the 30th day after the date on which the Seller
becomes aware of, or receives written notice from the Depositor, the Master
Servicer or the Owner Trustee of, such breach or failure, and such breach or
failure materially and adversely affects the interest of the Issuer in a
Receivable, the Seller shall repurchase such Receivable from the Issuer as of
the close of business on the last day of such Collection Period on the Deposit
Date immediately following such Collection Period. In consideration of the
repurchase of a Receivable hereunder, the Seller shall remit the Purchase Amount
of such Receivable in the manner specified in Section 4.08. The sole remedy of
the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders with respect to a breach or failure to be true of the
representations and warranties set forth in Exhibit A shall be to require the
Seller to repurchase Receivables pursuant to this Section or Section 3.03(c) of
the Receivables Purchase Agreement. Neither the Owner Trustee nor the Indenture
Trustee shall have any duty to conduct an affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable pursuant
to this Section or the eligibility of any Receivable for purposes of this
Agreement.
Section 2.05. Custody of Receivable Files.
(a) To assure uniform quality in servicing the Receivables and to reduce
administrative costs, the Issuer hereby revocably appoints the Master Servicer
as its agent, and the Master Servicer hereby accepts such appointment, to act as
custodian, on behalf of the Issuer and the Indenture Trustee, of the following
documents or instruments which are hereby constructively delivered to the
Indenture Trustee, as pledgee of the Trust Property pursuant to the Indenture
with respect to each Receivable (collectively, a "Receivable File"):
(i) the fully executed original of the Receivable;
(ii) the original (or image of the original) credit application with
respect to such Receivable fully executed by the related Obligor or a
photocopy thereof or a record thereof on a computer file or disc or on
microfiche;
(iii) the original certificate of title for the related Financed
Vehicle (or evidence that such certificate of title has been applied for)
or such other documents that the Seller or the Master Servicer shall keep
on file, in accordance with its customary practices and procedures,
evidencing the security interest of the Seller in such Financed Vehicle;
(iv) documents evidencing the commitment of the related Obligor to
maintain physical damage insurance covering the related Financed Vehicle;
and
(v) any and all other documents (including any computer file or disc
or microfiche) that the Seller or the Master Servicer shall keep on file,
in accordance with its customary practices and procedures, relating to the
Receivable, the related Obligor or the related Financed Vehicle.
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(b) On the Closing Date, the Master Servicer shall deliver an Officer's
Certificate to the Issuer and the Indenture Trustee confirming that the Master
Servicer has received, on behalf of the Issuer and the Indenture Trustee, all
the documents and instruments necessary for the Master Servicer to act as the
agent of the Issuer and the Indenture Trustee for the purposes set forth in this
Section, including the documents referred to herein, and the Issuer and the
Trustees are hereby authorized to rely on such Officer's Certificate.
Section 2.06. Duties of Master Servicer as Custodian.
(a) Safekeeping. The Master Servicer, in its capacity as custodian, shall
hold the Receivable Files for the benefit of the Issuer and the Indenture
Trustee and maintain such accurate and complete accounts, records and computer
systems pertaining to each Receivable File as shall enable the Master Servicer
and the Issuer to comply with this Agreement and the Indenture Trustee to comply
with the Indenture. In performing its duties as custodian, the Master Servicer
shall act with reasonable care, using that degree of skill and attention that it
exercises with respect to the files of comparable motor vehicle installment sale
contracts and installment loans that the Master Servicer services for itself or
others. The Master Servicer shall conduct, or cause to be conducted, in
accordance with its customary practices and procedures, periodic examinations of
the files of all receivables owned or serviced by it which shall include the
Receivable Files held by it under this Agreement, and of the related accounts,
records and computer systems, in such a manner as shall enable the Issuer or the
Indenture Trustee to verify the accuracy of the Master Servicer's record
keeping. The Master Servicer shall promptly report to the Trustees any failure
on its part to hold the Receivable Files and to maintain its accounts, records
and computer systems as herein provided and promptly take appropriate action to
remedy any such failure. Nothing herein shall be deemed to require an initial
review or any periodic review of the Receivable Files by the Issuer or the
Trustees, and none of the Issuer or either Trustee shall be liable or
responsible for any action or failure to act by the Master Servicer in its
capacity as custodian hereunder.
(b) Maintenance of and Access to Records. The Master Servicer shall
maintain each Receivable File at one of the locations specified in Schedule A or
at such other location as shall be specified to the Issuer and the Indenture
Trustee by 30 days' prior written notice. The Master Servicer may temporarily
move individual Receivable Files or any portion thereof without notice as
necessary to conduct collection and other servicing activities in accordance
with its customary practices and procedures. The Master Servicer shall make
available to the Issuer and the Indenture Trustee or its duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files, the Receivable Files and the related accounts, records and computer
systems maintained by the Master Servicer at such times during normal business
hours as the Issuer and the Indenture Trustee shall reasonably request.
(c) Release of Documents. As soon as practicable after receiving written
instructions from the Indenture Trustee, the Master Servicer shall release any
document in the Receivable Files to the Indenture Trustee or its agent or
designee, as the case may be, at such place or places as the Indenture Trustee
may reasonably designate. The Master Servicer shall not be responsible for any
loss occasioned by the failure of the Indenture Trustee to return any document
or any delay in so doing.
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(d) Title to Receivables. The Master Servicer shall not at any time have,
or in any way attempt to assert, any interest in any Receivable held by it as
custodian hereunder or in the related Receivable File, other than for collecting
or enforcing such Receivable for the benefit of the Issuer. The entire equitable
interest in such Receivable and the related Receivable File shall at all times
be vested in the Issuer.
Section 2.07. Instructions; Authority to Act. The Master Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Responsible Officer of the
Indenture Trustee. A certified copy of excerpts of authorizing resolutions of
the board of directors of the Indenture Trustee shall constitute conclusive
evidence of the authority of any such Responsible Officer to act and shall be
considered in full force and effect until receipt by the Master Servicer of
written notice to the contrary given by the Indenture Trustee.
Section 2.08. Indemnification by Custodian. The Master Servicer, in its
capacity as custodian of the Receivable Files, shall indemnify and hold harmless
the Issuer, the Trustees and each of their respective officers, directors,
employees and agents from and against any and all liabilities, obligations,
losses, compensatory damages, payments, costs or expenses (including reasonable
legal fees, if any) of any kind whatsoever that may be imposed on, incurred or
asserted against the Issuer, the Trustees and each of their respective officers,
directors, employees and agents as the result of any improper act or omission in
any way relating to the maintenance and custody of the Receivable Files by the
Master Servicer, as custodian; provided, however, that the Master Servicer shall
not be liable for any portion of any such liabilities, obligations, losses,
compensatory damages, payments, costs or expenses resulting from the willful
misfeasance, bad faith or negligence of either Trustee.
Section 2.09. Effective Period and Termination. The Master Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section. If
the Master Servicer shall resign as Master Servicer under Section 6.05, or if
all of the rights and obligations of the Master Servicer shall have been
terminated under Section 7.01, the appointment of the Master Servicer as
custodian hereunder may be terminated by (i) the Issuer, with the consent of the
Indenture Trustee, (ii) Holders of Notes evidencing not less than 25% of the
Note Balance of the Controlling Class or, if the Notes have been paid in full,
by Certificateholders evidencing not less than 25% of the aggregate Certificate
Percentage Interests then outstanding or (iii) the Owner Trustee, with the
consent of Holders of Notes evidencing not less than 25% of the Note Balance of
the Controlling Class, in each case by notice then given in writing to the
Depositor and the Master Servicer (with a copy to the Trustees if given by the
Noteholders or the Certificateholders). As soon as practicable after any
termination of such appointment, the Master Servicer shall deliver, or cause to
be delivered, the Receivable Files and the related accounts and records
maintained by the Master Servicer to the Indenture Trustee, the Indenture
Trustee's agent or the Indenture Trustee's designee, as the case may be, at such
place as the Indenture Trustee may reasonably designate or, if the Notes have
been paid in full, at such place as the Owner Trustee may reasonably designate.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
Section 3.01. Duties of Master Servicer. The Master Servicer, acting alone
or through one or more subservicers to the extent permitted hereunder, for the
benefit of the Issuer, shall manage, service, administer and make collections on
the Receivables with reasonable care but in no event less than the care that the
Master Servicer exercises with respect to all comparable motor vehicle
receivables that it services for itself or others. The Master Servicer's duties
shall include collection and posting of all payments, responding to inquiries of
Obligors or by federal, State or local government authorities with respect to
the Receivables, investigating delinquencies, sending payment coupons to
Obligors, reporting tax information to Obligors in accordance with its customary
practices, policing the collateral, accounting for collections and furnishing
monthly and annual statements to the Trustees with respect to distributions,
providing collection and repossession services in the event of an Obligor
default, generating federal income tax information and performing the other
duties specified herein. The Master Servicer shall have full power and authority
to do any and all things in connection with such managing, servicing,
administration and collection that it may deem necessary or desirable, it being
understood, however, that the Master Servicer shall at all times remain
responsible to the Issuer and the Indenture Trustee for the performance of its
duties and obligations hereunder. Subject to the foregoing and to Section 3.02,
the Master Servicer shall follow its customary standards, policies, practices
and procedures in performing its duties hereunder as Master Servicer. Without
limiting the generality of the foregoing, the Master Servicer shall be
authorized and empowered to execute and deliver, on behalf of itself, the
Depositor, the Issuer, the Trustees, the Securityholders or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the
Receivables and the Financed Vehicles.
The Master Servicer is hereby authorized to commence, in its own name or
in the name of the Issuer, a legal proceeding to enforce a Receivable pursuant
to Section 3.04 or to commence or participate in a legal proceeding (including a
bankruptcy proceeding) relating to or involving a Receivable, including a
Defaulted Receivable. If the Master Servicer commences or participates in such a
legal proceeding in its own name, the Issuer shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection on behalf of the
party retaining an interest in such Receivable, such Receivable and the other
property conveyed to the Issuer pursuant to Section 2.01 with respect to such
Receivable to the Master Servicer for purposes of commencing or participating in
any such proceeding as a party or claimant, and the Master Servicer is
authorized and empowered by the Issuer to execute and deliver in the Master
Servicer's name any notices, demands, claims, complaints, responses, affidavits
or other documents or instruments in connection with any such proceeding. If in
any enforcement suit or legal proceeding it shall be held that the Master
Servicer may not enforce a Receivable on the grounds that it shall not be a real
party in interest or a holder entitled to enforce such Receivable, the Owner
Trustee shall, at the Master Servicer's expense and written direction, take
steps to enforce such Receivable, including bringing suit in the Master
Servicer's or the Issuer's name or the name of the Owner Trustee, the Indenture
Trustee, the Noteholders, the Certificateholders or any of them.
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The Owner Trustee, on behalf of the Issuer, shall furnish the Master
Servicer with any powers of attorney and other documents and take any other
steps which the Master Servicer may deem necessary or appropriate to enable the
Master Servicer to carry out its servicing and administrative duties hereunder.
The Master Servicer, at its expense, shall obtain on behalf of the Issuer or the
Owner Trustee all licenses, if any, required by the laws of any jurisdiction to
be held by the Issuer or the Owner Trustee in connection with ownership of the
Receivables and shall make all filings and pay all fees as may be required in
connection therewith during the term of this Agreement. The Master Servicer
shall, or shall cause the Administrator to, prepare, execute and deliver all
certificates or other documents required to be delivered by the Issuer pursuant
to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the rules and regulations promulgated
thereunder.
Section 3.02. Subservicers.
(a) The Master Servicer may enter into subservicing agreements with one or
more subservicers for the servicing and administration of certain of the
Receivables (including holding the related Receivable Files as custodian).
References herein to actions taken or to be taken by the Master Servicer in
servicing the Receivables include actions taken or to be taken by a subservicer
on behalf of the Master Servicer. Each subservicing agreement will be upon such
terms and conditions as are not inconsistent with this Agreement and as the
Master Servicer and the subservicer have agreed. With the approval of the Master
Servicer, a subservicer may delegate its servicing obligations to third-party
servicers, but such subservicer will remain obligated under the related
subservicing agreement. The Master Servicer and a subservicer may enter into
amendments thereto or different forms of subservicing agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement or materially adversely affect
the rights of the Securityholders hereunder.
(b) The Master Servicer shall be entitled to terminate any subservicing
agreement that may exist in accordance with the terms and conditions of such
subservicing agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any subservicing
agreement by the Master Servicer or the related subservicer, the Master Servicer
shall either act directly as servicer of the related Receivable or enter into a
subservicing agreement with a successor subservicer which will be bound by the
terms of the related subservicing agreement.
(c) Notwithstanding any subservicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a subservicer or reference to actions taken through such Persons or
otherwise, the Master Servicer shall remain obligated and liable to the
Indenture Trustee, the Owner Trustee, the Issuer and the Securityholders for the
servicing and administering of the Receivables in accordance with the provisions
of this Agreement without diminution of such obligation or liability by virtue
of such subservicing agreements or arrangements or by virtue of indemnification
from a subservicer and to the same extent and under the same terms and
conditions as if the Master Servicer alone were servicing and administering the
Receivables. The Master Servicer shall be entitled to enter into an agreement
with a subservicer for indemnification of the Master Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
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(d) Any subservicing agreement that may be entered into and any other
transactions or servicing arrangements relating to the Receivables involving a
subservicer or an Affiliate of the Master Servicer, shall be deemed to be
between the subservicer or such Affiliate, as the case may be, and the Master
Servicer alone, and none of the Indenture Trustee, the Owner Trustee, the
Issuer, the Noteholders or the Certificateholders shall be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the subservicer except as set forth in the immediately
succeeding paragraph.
(e) In the event the Master Servicer shall for any reason no longer be
acting as master servicer under this Agreement (including by reason of
termination of the Master Servicer following the occurrence of a Servicer
Termination Event), the Indenture Trustee or its designee may, at the sole
discretion of the Indenture Trustee, thereupon assume all of the rights and
obligations of such Master Servicer under each subservicing agreement selected
by the Indenture Trustee in its sole discretion. In such event, the Indenture
Trustee, its designee or such other Successor Master Servicer that is appointed
pursuant to Section 7.02 and assumes the obligations and duties of the Master
Servicer under this Agreement shall be deemed to have assumed all of the Master
Servicer's interest therein and to have replaced the Master Servicer as a party
to each such subservicing agreement to the same extent as if such subservicing
agreement had been assigned to the assuming party except that the Master
Servicer shall not thereby be relieved of any liability or obligations under the
subservicing agreement. The Master Servicer shall, upon request of the Indenture
Trustee but at the expense of the Master Servicer, deliver to the assuming party
all documents and records relating to each such subservicing agreement and the
Receivables then being serviced and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party. The Master
Servicer shall promptly provide notice to each Rating Agency, with respect to
such termination of the Master Servicer and assumption by the Indenture Trustee.
(f) The Master Servicer, each subservicer and any Successor Master
Servicer shall at all times comply with all applicable federal, State and local
laws, rules, regulations and ordinances governing or relating to the privacy
rights of the Obligors in connection with its performance of its duties under
this Agreement, including the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. The Master Servicer, each
subservicer and any Successor Master Servicer shall implement such physical and
other security measures as shall be necessary to (i) ensure the security and
confidentiality of the "nonpublic personal information" of each Obligor, (ii)
protect against any threats or hazards to the security and integrity of such
nonpublic personal information and (iii) protect against any unauthorized access
to or use of such nonpublic personal information.
Section 3.03. Collection of Receivable Payments; Modification of
Receivables. The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same shall become due and otherwise act with respect to the Receivables
and the other Trust Property in such manner as will, in the reasonable judgment
of the Master Servicer, maximize the amount to be received by the Issuer with
respect thereto and in accordance with the standard of care required by Section
3.01. The Master Servicer shall allocate collections on or in respect of the
Receivables between principal and interest in accordance with the Simple
Interest Method and the customary servicing practices and procedures it follows
with respect to all comparable motor vehicle retail installment sale contracts
and installment loans that it services for itself or others. The Master Servicer
shall not increase or
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decrease the number or amount of any Monthly Payment, the Amount Financed under
any Receivable or the Contract Rate of any Receivable, or extend, rewrite or
otherwise modify the payment terms of any Receivable; provided, however, that
the Master Servicer may extend the due date for one or more payments due on any
Receivable for credit-related reasons that would be acceptable to the Master
Servicer with respect to comparable motor vehicle retail installment sale
contracts and installment loans that it services for itself or others and in
accordance with its customary standards, policies, practices and procedures if
the cumulative extensions with respect to any Receivable shall not cause the
term of such Receivable to extend beyond the last day of the Collection Period
immediately preceding the Class E Final Scheduled Distribution Date. If the
Master Servicer fails to comply with the provisions of the preceding sentence,
the Master Servicer shall be required to purchase each Receivable affected
thereby for the related Purchase Amount, in the manner specified in Section
3.08, as of the close of business on the last day of the Collection Period that
includes the 30th day after the Master Servicer becomes aware of such failure,
on the Deposit Date immediately following such Collection Period. The Master
Servicer may, in its discretion (but only in accordance with its customary
standards, policies, practices and procedures), waive any late payment charge or
any other fee that may be collected in the ordinary course of servicing a
Receivable. In addition, in the event that any such extension of a Receivable
modifies the terms of such Receivable in such a manner as to constitute a
cancellation of such Receivable and the creation of a new motor vehicle
receivable that results in a deemed exchange thereof within the meaning of
Section 1001 of the Code, the Master Servicer shall purchase such Receivable
pursuant to Section 3.08, and the Receivable created shall not be included in
the Trust Property.
Section 3.04. Realization Upon Receivables.
(a) The Master Servicer shall use commercially reasonable efforts on
behalf of the Issuer, in accordance with the standard of care required under
Section 3.01, to repossess or otherwise convert the ownership of each Financed
Vehicle securing a Defaulted Receivable. In taking such action, the Master
Servicer shall follow such customary and usual practices and procedures as it
shall deem necessary or advisable in its servicing of comparable motor vehicle
installment sale contracts and installment loans, and as are otherwise
consistent with the standard of care required under Section 3.01. The Master
Servicer shall be entitled to recover all reasonable expenses incurred by it
with respect to realizing on a Defaulted Receivable, including such expenses
incurred in the course of repossessing and liquidating a Financed Vehicle into
cash proceeds, but only out of the cash proceeds of such Financed Vehicle and
any deficiency amount obtained from the Obligor. The foregoing is subject to the
proviso that, in any case in which the Financed Vehicle shall have suffered
damage, the Master Servicer shall not expend funds in connection with any repair
or towards the repossession of such Financed Vehicle unless it shall determine
in its discretion that such repair or repossession shall increase the Net
Liquidation Proceeds or Recoveries of the related Receivable.
(b) If the Master Servicer elects to commence a legal proceeding to
enforce a Dealer Agreement, the act of commencement shall be deemed to be an
automatic assignment from the Issuer to the Master Servicer of the rights of
recourse under such Dealer Agreement. If, however, in any enforcement suit or
legal proceeding, it is held that the Master Servicer may not enforce a Dealer
Agreement on the grounds that it is not a real party in interest or a Person
entitled to enforce the Dealer Agreement, the Owner Trustee, at the Master
Servicer's expense and direction, shall take such steps as the Master Servicer
deems necessary to enforce the Dealer Agreement,
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including bringing suit in its name or the names of the Indenture Trustee, the
Securityholders or any of them.
Section 3.05. Maintenance of Physical Damage Insurance Policies. The
Master Servicer shall follow its customary practices and procedures to determine
whether or not each Obligor shall have maintained physical damage insurance
covering the related Financed Vehicle. In the event that the Master Servicer has
determined that an Obligor fails to maintain the required insurance, the Master
Servicer shall treat the Obligor as being in default under the related
Receivable.
Section 3.06. Maintenance of Security Interests in Financed Vehicles. The
Master Servicer shall take such steps, in accordance with the standard of care
required under Section 3.01, as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Issuer hereby authorizes the Master Servicer, and the Master Servicer hereby
agrees, to take such steps as are necessary to re-perfect such security interest
on behalf of the Issuer and the Indenture Trustee in the event the Master
Servicer receives notice of, or otherwise has actual knowledge of, the fact that
such security interest is not perfected as a result of the relocation of a
Financed Vehicle or for any other reason. In the event that the assignment of a
Receivable to the Issuer is insufficient, without a notation on the related
Financed Vehicle's certificate of title, to grant to the Issuer a first priority
perfected security interest in the related Financed Vehicle, the Master Servicer
hereby agrees to serve as the agent of the Issuer for the purpose of perfecting
the security interest of the Issuer in such Financed Vehicle and agrees that the
Master Servicer's listing as the secured party on the certificate of title is
solely in its capacity as agent of the Issuer. The Master Servicer shall not
release, in whole or in part, any security interest in a Financed Vehicle
created by the related Receivable except as permitted herein or in accordance
with its customary standards, policies, practices and procedures.
Section 3.07. Covenants of Master Servicer. The Master Servicer makes the
following covenants:
(a) Liens in Force. Except upon the payment in full of a Receivable
or as otherwise contemplated by this Agreement or applicable law, the
Master Servicer shall not release in whole or in part any Financed Vehicle
from the security interest securing the related Receivable.
(b) No Impairment. The Master Servicer shall not impair in any
material respect the rights of the Depositor, the Issuer, the Trustees or
the Securityholders in the Receivables or, except as permitted under
Section 3.03, otherwise amend or alter the terms of the Receivables and as
a result of such amendment or modification or alteration, the interests of
the Depositor, the Issuer, the Trustees or the Securityholder would be
materially adversely affected.
(c) Schedule of Receivables to Indenture Trustee. The Master
Servicer shall on or before the Closing Date (and, at any time thereafter,
upon the request of the Indenture Trustee) deliver to the Indenture
Trustee a copy of the Schedule of Receivables.
Section 3.08. Purchase of Receivables Upon Breach. The Depositor, the
Seller, the Master Servicer or the Owner Trustee, as the case may be, shall
inform the other parties to this Agreement
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and the Indenture Trustee promptly, in writing, upon the discovery of any breach
of Section 3.03, 3.06 or 3.07. If such breach shall not have been cured by the
close of business on the last day of the Collection Period which includes the
30th day after the date on which the Master Servicer becomes aware of, or
receives written notice from the Depositor, the Seller, or the Owner Trustee of,
such breach, and such breach materially and adversely affects the interest of
the Issuer in a Receivable, the Master Servicer shall purchase such Receivable
from the Issuer, as of the close of business on the last day of the related
Collection Period, by remitting the related Purchase Amount of such Receivable
to the Collection Account in the manner specified in Section 4.08(a), on the
related Deposit Date. The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders and the Certificateholders with respect to a
breach of Section 3.03, 3.06 or 3.07 shall be to require the Master Servicer to
purchase Receivables pursuant to this Section. Neither the Owner Trustee nor the
Indenture Trustee shall have any duty to conduct an affirmative investigation as
to the occurrence of any condition requiring the purchase of any Receivable
pursuant to this Section.
Section 3.09. Servicing Compensation; Payment of Certain Expenses by
Master Servicer. The Master Servicer shall receive the Monthly Servicing Fee for
servicing the Receivables. As additional servicing compensation, the Master
Servicer shall be entitled to receive or retain the Supplemental Servicing Fee.
The Master Servicer shall pay all expenses incurred by it in connection with the
activities under this Agreement (including fees and expenses of the Trustees,
the Independent accountants and any subservicer, taxes imposed on the Master
Servicer, expenses incurred in connection with distributions and reports to
Securityholders and all other fees and expenses not expressly stated under this
Agreement to be for the account of the Securityholders), except expenses
incurred in realizing upon Receivables under Section 3.04.
Section 3.10. Master Servicer's Certificate. On or before each
Determination Date, the Master Servicer shall deliver to the Depositor, the
Seller, the Swap Counterparty and the Trustees, a Master Servicer's Certificate
containing all information necessary to make the transfers and distributions
required by Sections 4.01, 4.02, 4.07 and 4.08 in respect of the related
Collection Period and the related Distribution Date and all information
necessary for the Trustees, as applicable, to send (or provide access to via the
internet) statements to Securityholders pursuant to Section 4.10 and pursuant to
Section 6.06 of the Indenture. The Master Servicer shall also specify to the
Trustees, no later than the Determination Date following the last day of a
Collection Period as of which the Seller shall separately identify (by account
number) in a written notice to the Depositor and the Trustees, the Receivables
to be repurchased by the Seller or purchased by the Master Servicer, as the case
may be, on the related Deposit Date and, upon request of one of the foregoing
parties, each Receivable that became a Defaulted Receivable during the related
Collection Period.
Section 3.11. Annual Statement as to Compliance; Notice of Servicer
Termination Events.
(a) The Master Servicer shall deliver to the Depositor, the Trustees, the
Swap Counterparty and each Rating Agency, within 90 days after each year end,
beginning with the first year end that is at least four months after the Closing
Date, an Officer's Certificate of the Master Servicer, stating that (i) a review
of the activities of the Master Servicer during the preceding 12-month period
ended December 31 (or, if applicable, such shorter period in the case of the
first such Officer's Certificate) and of its performance under this Agreement
has been made under such
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officer's supervision and (ii) to such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such period, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
(b) Notwithstanding Section 3.11(a), to the extent that Regulation AB
requires the delivery by the Master Servicer of an annual report on an
assessment of servicing compliance on the basis of detailed servicing criteria
or other report, the delivery of a copy of such report to the Depositor, the
Trustees and each Rating Agency shall be deemed to satisfy the provisions of
Subsection 3.11(a).
(c) The Master Servicer shall deliver to the Depositor, the Trustees, the
Swap Counterparty and each Rating Agency, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter, an
Officer's Certificate specifying any event which constitutes or, with the giving
of notice or lapse of time, or both, would become, a Servicer Termination Event.
(d) The Master Servicer shall cause each Reporting Subcontractor to
deliver to the Depositor an assessment of compliance and accountant's
attestation as and when provided in paragraph (a)(i) or (ii) of this Section
3.11 and Section 3.12. The Master Servicer shall execute (provided the Master
Servicer is not an Affiliate of the Depositor) (and shall cause each Reporting
Subcontractor to execute) a reliance certificate to enable the Certification
Parties to rely upon each (i) annual report on assessments of compliance with
servicing criteria provided pursuant to Section 3.11 and (ii) accountant's
report provided pursuant to Section 3.12 and shall include a certification that
each such annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of such Person to enable
such accountants to render the certificates provided for in Section 3.12.
Section 3.12. Annual Accountants' Report.
(a) The Master Servicer shall cause a firm of independent certified public
accountants (who may also render other services to the Master Servicer or to the
Depositor or their respective Affiliates) to deliver to the Depositor and, if
required or requested, to the Trustees and each Rating Agency within 90 days
after each year end, beginning with the first year end that is at least four
months after the Closing Date, a report with respect to the preceding 12-month
period ended December 31 (or, if applicable, such shorter period in the case of
the first such report) or other report to the effect that such accountants have
examined, on a test basis, evidence of the Master Servicer's compliance with the
covenants and conditions set forth in this Agreement. The report will express an
opinion on the Master Servicer's assertion that the Master Servicer complied in
all material respects with the aforementioned covenants and conditions is fairly
stated, in all material respects or the reason why such an opinion cannot be
expressed. Such report shall also indicate that the firm is Independent with
respect to the Depositor and the Master Servicer within the meaning of the Code
of Professional Ethics of the American Institute of Certified Public
Accountants.
(b) Notwithstanding Section 3.12(a), to the extent that Regulation AB
requires the delivery of an annual attestation of a firm of Independent public
accountants with respect to the
29
assessment of servicing compliance with specified servicing criteria by the
Master Servicer, the delivery of a copy of such attestation to the Depositor and
the Trustees shall be deemed to satisfy the provisions of this Section. Any such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act, stating, among
other things, that the Master Servicer's assertion of compliance with the
specified servicing criteria is fairly stated in all material respects, or the
reason why such an opinion cannot be expressed.
Section 3.13. Access to Certain Documentation and Information Regarding
Receivables. Subject to Section 2.06(b), the Master Servicer shall provide the
Depositor, the Trustees and the Securityholders with access to the Receivables
Files in the cases where the related Trustee or such Securityholder is required
by applicable statutes or regulations to have access to such documentation. Such
access shall be afforded without charge but only upon reasonable request and
during normal business hours which does not unreasonably interfere with the
normal operations or customer or employee relations of the Master Servicer, at
the offices of the Master Servicer. Nothing in this Section shall affect the
obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the Master
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section. Each Securityholder, by its acceptance
of the related Security or a beneficial interest therein, shall be deemed to
have agreed to keep any information obtained by it pursuant to this Section
confidential, except as may be required by applicable law.
Section 3.14. Reports to the Commission. The Master Servicer shall, on
behalf of the Issuer, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder. The Depositor shall, at its expense,
cooperate in any reasonable request made by the Master Servicer in connection
with such filings.
Section 3.15. Reports to Rating Agencies. The Master Servicer shall
deliver to each Rating Agency, at such address as such Rating Agency may
request, to the extent it is available to the Master Servicer, a copy of all
reports or notices furnished or delivered pursuant to this Article and a copy of
any amendments, supplements or modifications to this Agreement and any other
information reasonably requested by such Rating Agency to monitor this
transaction.
Section 3.16. Maintenance of the Swap Agreement. So long as the Class A-2b
Notes are outstanding, the Master Servicer shall cause the Issuer to maintain in
effect the Swap Agreement or a replacement interest rate swap agreement
acceptable to the Rating Agencies.
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ARTICLE FOUR
DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
Section 4.01. Establishment of Accounts.
(a) Wachovia Bank (as Master Servicer hereunder and, with respect to the
Reserve Fund, as Securities Intermediary under the Control Agreement) shall
establish the following Accounts, on or before the Closing Date, and maintain
each as an Eligible Deposit Account in the name of the Indenture Trustee, at an
Eligible Institution (which shall initially be the Indenture Trustee in the case
of the Collection Account and Note Payment Account and Wachovia Bank, in the
case of the Reserve Fund) for the benefit of:
(i) the Securityholders, the Master Servicer, the Swap Counterparty
and the Trustees, designated as the "Wachovia Auto Loan Owner Trust 2008-1
Collection Account, U.S. Bank National Association, Indenture Trustee"
(the "Collection Account");
(ii) the Noteholders, the Master Servicer, the Swap Counterparty and
the Trustees, designated as the "Wachovia Auto Loan Owner Trust 2008-1
Note Payment Account, U.S. Bank National Association, Indenture Trustee"
(the "Note Payment Account"); and
(iii) the Noteholders and the Swap Counterparty, designated as the
"Wachovia Auto Loan Owner Trust 2008-1 Reserve Fund" U.S. Bank National
Association, Indenture Trustee (the "Reserve Fund"),
in each case bearing a designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the related Persons. The Accounts
shall be under the control of the Indenture Trustee; provided, however, that the
Master Servicer may direct the Indenture Trustee in writing to make (or cause to
be made) deposits to and withdrawals from the applicable Accounts in accordance
with this Agreement and the other Basic Documents. All monies deposited from
time to time in the Collection Account, the Note Payment Account and the Reserve
Fund shall be held by, or in the name of, the Indenture Trustee as part of the
Trust Property, and all deposits to and withdrawals therefrom shall be made only
upon the terms and conditions of the Basic Documents. Amounts on deposit in each
Account shall, to the extent permitted by applicable law, rules and regulations,
be invested, as directed in writing by the Master Servicer, by the Eligible
Institution then maintaining such Account in Eligible Investments that mature
not later than the Deposit Date following the date of investment. All such
Eligible Investments shall be held to maturity. All interest and other income
(net of losses and investment expenses) on funds on deposit in the Accounts
shall be retained on deposit in the related Account.
(b) Wachovia Bank (as Master Servicer hereunder) shall establish, on
or before the Closing Date, and maintain in the name of the Owner Trustee
at an Eligible Institution (which shall initially be the Indenture
Trustee) an account designated as the "Wachovia Auto Loan Owner Trust
2008-1 Certificate Payment Account" (the "Certificate Payment Account").
The Certificate Payment Account shall be held in trust for the benefit of
the Certificateholders. The Certificate
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Payment Account shall be under the control of the Owner Trustee; provided,
however, that the Master Servicer may direct the Indenture Trustee in writing to
make deposits to and withdrawals from the Certificate Payment Account in
accordance with this Agreement and the other Basic Documents. All monies
deposited from time to time in the Certificate Payment Account shall be held by
or in the name of the Owner Trustee as part of the Trust Property and shall be
applied as provided in the Basic Documents. The amounts on deposit in the
Certificate Payment Account shall not be invested.
(c) The Issuer and the Master Servicer agree that each Eligible
Institution, with which an Account is established, will agree substantially as
follows:
(i) it will comply with Entitlement Orders related to such account
issued by the Indenture Trustee, without further consent by the Master
Servicer;
(ii) until termination of this Agreement, it will not enter into any
other agreement related to such account pursuant to which it agrees to
comply with Entitlement Orders of any Person other than the Indenture
Trustee;
(iii) all Account Collateral delivered or credited to it in
connection with such account and all proceeds thereof will be promptly
credited to such Account;
(iv) it will treat all Account Collateral as Financial Assets; and
(v) all Account Collateral will be physically delivered (accompanied
by any required endorsements) to, or credited to an account in the name
of, the Eligible Institution maintaining the related Account in accordance
with such Eligible Institution's customary procedures such that such
Eligible Institution establishes a Security Entitlement in favor of the
Indenture Trustee with respect thereto over which the Indenture Trustee
has Control.
(d) If the sum of the amounts on deposit in the Collection Account and the
Reserve Fund on any Distribution Date equals or exceeds the Note Balance, all
accrued and unpaid interest thereon and all amounts due to the Master Servicer
and the Trustees, all such amounts will be applied up to the amounts necessary
to retire the Notes and pay such amounts due.
Section 4.02. Reserve Fund.
(a) On the Closing Date, the Depositor shall deposit the Reserve Fund
Deposit into the Reserve Fund from the net proceeds of the sale of the Notes.
The Reserve Fund Property has been conveyed by the Depositor to the Issuer
pursuant to Section 2.01(a). Pursuant to the Indenture, the Issuer will pledge
all of its right, title and interest in, to and under the Reserve Fund and the
Reserve Fund Property to the Indenture Trustee on behalf of the Securityholders
and the Swap Counterparty to secure its obligations under the Notes and the
Indenture.
(b) If the Reserve Fund is no longer to be maintained at Wachovia Bank,
the Master Servicer shall, with Wachovia Bank's and the Indenture Trustee's
approval (not to be unreasonably withheld) and assistance as necessary, promptly
(and in any case within ten calendar days) cause the Reserve Fund to be moved to
an Eligible Institution. The Master Servicer shall
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promptly notify the Rating Agencies, the Swap Counterparty and the Trustees in
writing of any change in the account number or location of the Reserve Fund.
(c) On each Distribution Date, the Indenture Trustee will deposit, or
cause to be deposited, in the Reserve Fund, from amounts collected on or in
respect of the Receivables during the related Collection Period and not used on
that Distribution Date to pay the Required Payment Amount, the amount, if any,
by which the Reserve Fund Required Amount for that Distribution Date exceeds the
amount on deposit in the Reserve Fund on that Distribution Date, after giving
effect to all required withdrawals from the Reserve Fund on that Distribution
Date.
(d) On each Determination Date, the Master Servicer will determine the
Reserve Fund Draw Amount, if any, for the related Distribution Date. If the
Reserve Fund Draw Amount for any Distribution Date is greater than zero, the
Indenture Trustee will withdraw, or cause to be withdrawn, from the Reserve
Fund, an amount equal to the lesser of the amount on deposit in the Reserve Fund
and the Reserve Fund Draw Amount, and transfer the amount withdrawn to the
Collection Account on the Deposit Date.
(e) The Reserve Fund Draw Amount will constitute a portion of Available
Funds to make the payments described in Section 2.08(a)(i) - (xiii) or 2.08(f)
of the Indenture. In addition, if any Class of Notes has not been paid in full
on any Distribution Date on and after its Final Scheduled Distribution Date
(after giving effect to the distribution of Available Funds on such Distribution
Date), the Master Servicer shall instruct the Indenture Trustee in writing to
deposit (or cause to be deposited) from amounts on deposit in the Reserve Fund
to the Collection Account for subsequent deposit to the Note Payment Account for
payment to the Noteholders of that Class of Notes, an amount equal to the lesser
of (i) the amount on deposit in the Reserve Fund and (ii) the outstanding
principal amount of that Class of Notes.
(f) If the Reserve Fund Amount for any Distribution Date (after giving
effect to the withdrawal of the Reserve Fund Draw Amount for such Distribution
Date and the distribution described in the preceding sentence) exceeds the
Reserve Fund Required Amount for such Distribution Date, the Master Servicer
shall instruct the Indenture Trustee in writing to distribute or cause to be
distributed on the related Deposit Date, the amount of such excess to (i) the
Swap Counterparty in payment of any Subordinated Swap Termination Payments not
previously paid and thereafter (ii) the Collection Account for further deposit
to the Certificate Payment Account for payment to the Certificateholders on such
Distribution Date. Any amount paid to the Certificateholders will no longer
constitute a portion of the Trust Property and the Indenture Trustee and the
Issuer hereby release, on each Distribution Date, their security interest in, to
and under Reserve Fund Property distributed to the Certificateholders.
(g) If the Note Balance and all other amounts owing or to be distributed
hereunder or under the Indenture to the Noteholders, the Trustees, the Master
Servicer and the Swap Counterparty have been paid in full and the Issuer has
been terminated, any remaining Reserve Fund Property shall be distributed to the
Certificateholders.
Section 4.03. The Collateral Support Account. The Indenture Trustee
acknowledges that, pursuant to the provisions of the Swap Agreement, the Swap
Counterparty may be required to post collateral with the Indenture Trustee to
secure the Swap Counterparty's obligations under the Swap
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Agreement. The Indenture Trustee agrees to establish and maintain a collateral
support account (the "Collateral Support Account") as an Eligible Deposit
Account with an Eligible Institution, to hold such collateral and invest such
amounts in Eligible Investments, if requested to do so by the Master Servicer or
the Administrator. The Indenture Trustee further agrees to follow such written
instructions relating to the administration of, and transfers from, the
Collateral Support Account as may be delivered by the Master Servicer or the
Administrator, in each case subject to and in accordance with the terms of the
Swap Agreement.
Section 4.04. Monthly Remittance Condition.
(a) For so long as the Monthly Remittance Condition is met:
(i) the Master Servicer may remit all amounts received on or in
respect of the Receivables during any Collection Period to the Collection
Account in immediately available funds on or prior to the related Deposit
Date; and
(ii) the Depositor and the Master Servicer may make any remittances
pursuant to this Article with respect to a Collection Period net of
distributions or reimbursements to be made to or by the Depositor or the
Master Servicer with respect to such Collection Period; provided, however,
that such obligations shall remain separate obligations, no party shall
have a right of offset, and each such party shall account for all of the
above described remittances and distributions as if the amounts were
deposited or transferred separately.
(b) If on the Closing Date, the Master Servicer:
(i) shall fail to satisfy the Monthly Remittance Condition, the
Master Servicer shall remit to the Collection Account on or prior to the
Closing Date all amounts received by the Master Servicer on or in respect
of the Receivables (including Net Liquidation Proceeds and all amounts
received by the Master Servicer in connection with the repossession and
sale of a Financed Vehicle (whether or not the related Receivable has been
classified as a Defaulted Receivable)) during the period from but
excluding the Cutoff Date to and including the second Business Day
preceding the Closing Date;
(ii) shall satisfy the Monthly Remittance Condition, the Master
Servicer shall remit to the Collection Account on or prior to the Deposit
Date for the initial Collection Period, all amounts received by the Master
Servicer on or in respect of the Receivables (including Net Liquidation
Proceeds and all amounts received by the Master Servicer in connection
with the repossession and sale of a Financed Vehicle (whether or not the
related Receivable has been classified as a Defaulted Receivable)) during
the period from but excluding the Cutoff Date to and including the last
day of the initial Collection Period.
(c) Neither Trustee shall be deemed to have knowledge of any event or
circumstance under clause (i) or (ii) of the definition of the term "Monthly
Remittance Condition" that would require daily remittances by the Master
Servicer to the Collection Account unless such Trustee has received notice of
such event or circumstance from the Master Servicer in an Officer's Certificate
or from the Holders of Notes evidencing not less than 25% of the Note Balance of
the Controlling
34
Class or a Responsible Officer of such Trustee has actual knowledge of such
event or circumstance.
(d) Within five Business Days following the occurrence of any event or
circumstance that would require daily remittances by the Master Servicer to the
Collection Account, the Master Servicer shall provide an Officer's Certificate
with respect thereto to the Trustees.
Section 4.05. Collections. Subject to Sections 4.04, 4.07 and 4.08(a), the
Master Servicer shall remit to the Collection Account all amounts received by
the Master Servicer on or in respect of the Receivables (including Net
Liquidation Proceeds and all amounts received by the Master Servicer in
connection with the repossession and sale of a Financed Vehicle (whether or not
the related Receivable has been classified as a Defaulted Receivable) but
excluding payments with respect to Purchased Receivables) as soon as practicable
and in no event after the close of business on the second Business Day after
such receipt.
Section 4.06. Application of Collections. For purposes of this Agreement,
all amounts received on or in respect of a Receivable during any Collection
Period (including Net Liquidation Proceeds and all amounts received by the
Master Servicer in connection with the repossession and sale of a Financed
Vehicle (whether or not the related Receivable has been classified as a
Defaulted Receivable) but excluding payments with respect to Purchased
Receivables) shall be applied by the Master Servicer, as of the last day of such
Collection Period, to interest and principal on such Receivable in accordance
with the Simple Interest Method.
Section 4.07. Advances.
(a) If, as of the end of any Collection Period, the payments received
during such Collection Period by or on behalf of an Obligor in respect of a
Receivable (other than a Purchased Receivable) shall be less than the related
Monthly Payment, whether as a result of any extension granted to the Obligor or
otherwise, then, at the option of the Master Servicer, an amount equal to the
product of the Principal Balance of such Receivable as of the first day of the
related Collection Period and one-twelfth of its Contract Rate minus the amount
of interest actually received on such Receivable during such Collection Period
(each, an "Advance") may be deposited by the Master Servicer into the Collection
Account on the related Deposit Date. If such a calculation in respect of a
Receivable results in a negative number, an amount equal to such negative amount
shall be paid to the Master Servicer in reimbursement of any outstanding
Advances. In addition, in the event that a Receivable becomes a Defaulted
Receivable, the amount of accrued and unpaid interest thereon (but not including
interest for the current Collection Period) shall, up to the amount of
outstanding Advances, be withdrawn from the Collection Account and paid to the
Master Servicer in reimbursement of such outstanding Advances. No Advances will
be made with respect to the Principal Balance of Receivables. The Master
Servicer shall not be required to make an Advance to the extent that the Master
Servicer, in its sole discretion, shall determine that such Advance is likely to
become a Nonrecoverable Advance.
(b) Notwithstanding the provisions of Section 4.07(a), the Master Servicer
shall be entitled to reimbursement for an outstanding Advance made in respect of
a Receivable, without interest, from the following sources with respect to such
Receivable: (i) subsequent payments made by or on behalf of the related Obligor,
(ii) Net Liquidation Proceeds and Recoveries and
35
(iii) the Purchase Amount. If the Master Servicer determines that it has made a
Nonrecoverable Advance, the Master Servicer shall reimburse itself, without
interest, from unrelated amounts received by the Master Servicer on or in
respect of the Receivables (including Net Liquidation Proceeds and all amounts
received by the Master Servicer in connection with the repossession and sale of
a Financed Vehicle (whether or not the related Receivable has been classified as
a Defaulted Receivable)) to the extent it shall, concurrently with the
withholding of any such amounts from deposit in or credit to the Collection
Account, furnish to the Trustees a certificate of a Servicing Officer setting
forth the basis for the Master Servicer's determination, the amount of, and
Receivable with respect to which, such Nonrecoverable Advance was made and the
installment or installments or other proceeds respecting which such
reimbursement has been taken.
Section 4.08. Additional Deposits.
(a) The following additional deposits shall be made: (i) the Seller shall
remit to the Collection Account the aggregate Purchase Amount with respect to
(A) Purchased Receivables pursuant to Section 2.04 hereof or Section 3.03(c) of
the Receivables Purchase Agreement and (B) the amount required upon the optional
purchase of the Receivables by the Seller pursuant to Section 8.01, (ii) Master
Servicer shall remit or cause to be remitted to the Collection Account (A) the
aggregate Purchase Amount with respect to Purchased Receivables pursuant to
Section 3.08 and (B) any Net Swap Receipts and (iii) the Indenture Trustee shall
remit or shall cause to be remitted, pursuant to Section 4.02, the Reserve Fund
Draw Amount to the Collection Account.
(b) All deposits required to be made in respect of a Collection Period
pursuant to this Section by the Master Servicer may be made in the form of a
single deposit and shall be made in immediately available funds, no later than
5:00 p.m., New York City time, on the related Deposit Date.
Section 4.09. Determination Date Calculations; Application of Available
Funds.
(a) On each Determination Date, the Master Servicer shall calculate the
following amounts with respect to the related Distribution Date and Collection
Period:
(i) the Available Collections;
(ii) the Total Servicing Fee (including the amount of any
Nonrecoverable Advances);
(iii) the Total Trustee Fees;
(iv) the Net Swap Payments;
(v) the Interest Distributable Amount for each Class of Class A
Notes;
(vi) any Senior Swap Termination Payments;
(vii) the Priority Principal Distributable Amount;
36
(viii) the Interest Distributable Amount for the Class B Notes;
(ix) the Secondary Principal Distributable Amount;
(x) the Interest Distributable Amount for the Class C Notes;
(xi) the Third Principal Distributable Amount;
(xii) the Interest Distributable Amount for the Class D Notes;
(xiii) the Fourth Principal Distributable Amount;
(xiv) the Interest Distributable Amount for the Class E Notes;
(xv) the Fifth Principal Distributable Amount;
(xvi) the sum of the amounts described in clauses (ii) through (xv)
above (the "Required Payment Amount"); provided, however, that the
aggregate amount to be included in the Required Payment Amount pursuant to
clause (iii) above shall not exceed $100,000 in any given calendar year;
(xvii) any Subordinated Swap Termination Payments; and
(xviii) the Regular Principal Distributable Amount.
(b) On each Determination Date, the Master Servicer shall calculate the
following amounts with respect to the related Distribution Date and Collection
Period:
(i) the lesser of (A) the amount, if any, by which the Required
Payment Amount exceeds Available Collections and (B) the Reserve Fund
Amount (before giving effect to any deposits to or withdrawals from the
Reserve Fund on such Distribution Date) (such lesser amount, the "Reserve
Fund Draw Amount"); provided, however, that the Reserve Fund Draw Amount
will equal the Reserve Fund Amount if (1) the sum of Available Collections
and the Reserve Fund Amount equals or exceeds the Note Balance, accrued
and unpaid interest therein and all amounts on the related Distribution
Date required to be paid to the Master Servicer, the Trustees and the Swap
Counterparty or (2) on the last day of the related Collection Period the
Pool Balance is zero; and
(ii) the Reserve Fund Amount, the Reserve Fund Required Amount and
the amount, if any, by which the Reserve Fund Required Amount exceeds the
Reserve Fund Amount (after giving effect to any deposits to the Reserve
Fund and the withdrawal of the Reserve Fund Draw Amount for such
Distribution Date).
(c) On each Determination Date, the Master Servicer shall instruct the
Indenture Trustee in writing to apply (or cause to be applied) on the related
Distribution Date, the Available Funds for such Distribution Date to make the
related payments and deposits set forth in Section 2.08 of the Indenture.
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Section 4.10. Statements to Securityholders.
(a) On or before each Determination Date, the Master Servicer shall
provide to the Owner Trustee (with copies to the Depositor, the Swap
Counterparty and the Indenture Trustee) to forward to each Certificateholder of
record, and to the Indenture Trustee, to forward or otherwise provide access via
the internet to each Noteholder of record (with copies to each Rating Agency), a
statement, based on the related Master Servicer's Certificate setting forth the
information as to the Securities with respect to the related Distribution Date
and Collection Period, in substantially the form of Exhibit B, to the extent
applicable.
(b) Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of the Issuer, but not later than
the latest date permitted by law, the related Trustee, upon receipt thereof,
shall mail to each Person who at any time during such calendar year shall have
been a Securityholder, a statement, prepared by the Master Servicer or the
Seller, containing certain information for such calendar year or, in the event
such Person shall have been a Securityholder during a portion of such calendar
year, for the applicable portion of such year, for the purposes of such
Securityholder's preparation of federal income tax returns. In addition, the
Master Servicer or the Seller shall furnish to the Trustees for distribution to
such Person at such time any other information necessary under applicable law
for the preparation of such income tax returns.
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ARTICLE FIVE
THE DEPOSITOR
Section 5.01. Representations and Warranties of Depositor. The Depositor
makes the following representations and warranties on which the Issuer is deemed
to have relied in acquiring the Trust Property. The representations and
warranties speak as of the date of execution and delivery of this Agreement and
as of the Closing Date, and shall survive the sale, transfer, assignment and
conveyance of the Trust Property to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Depositor has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Nevada, 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 sell the Receivables.
(b) Due Qualification. The Depositor 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 Depositor, materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement, each other
Basic Document to which the Depositor is a party, the Receivables, the
Notes or the Certificates.
(c) Power and Authority. The Depositor has the power and authority
to execute, deliver and perform its obligations under this Agreement and
each other Basic Document to which it is a party. The Depositor has the
power and authority to sell, assign, transfer and convey the property to
be transferred to and deposited with the Issuer and has duly authorized
such sale, assignment, transfer and conveyance by all necessary limited
liability company action; and the execution, delivery and performance of
this Agreement and each other Basic Document to which the Depositor is a
party has been duly authorized by the Depositor by all necessary limited
liability company action.
(d) Valid Sale; Binding Obligation. This Agreement effects a valid
sale, transfer, assignment and conveyance to the Issuer of the Receivables
and the other Trust Property, enforceable against all creditors of and
purchasers from the Depositor. Each of this Agreement and each other Basic
Document to which the Depositor is a party constitutes a legal, valid and
binding obligation of the Depositor enforceable against the Depositor in
accordance with its terms, except as enforceability may be subject to or
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
39
(e) No Violation. The execution, delivery and performance by the
Depositor of this Agreement and the other Basic Documents to which the
Depositor is a party and the consummation of the transactions contemplated
hereby and thereby and the fulfillment of the terms hereof and thereof
does 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 Depositor, or 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 Depositor is a party or by which it shall be bound
or to which any of its properties is subject; 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 the Depositor's knowledge, any
order, rule or regulation applicable to the Depositor or of any federal or
State regulatory body, court, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor 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 Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the Depositor's knowledge, threatened against the
Depositor, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor
or its properties: (i) asserting the invalidity of this Agreement, any
other Basic Document or the Securities, (ii) seeking to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by the Basic Documents, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Depositor, would materially
and adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, the Basic Documents, the
Receivables or the Securities or (iv) relating to the Depositor and which
might adversely affect the federal income tax attributes of the Issuer or
the Securities.
Section 5.02. Liability of Depositor; Indemnities.
(a) The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Depositor under this
Agreement.
(b) The Depositor shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee and the Indenture Trustee from and against any taxes that may
at any time be asserted against any such Person with respect to the transactions
contemplated by the Basic Documents, including any sales, gross receipts, gross
margin, general corporation, tangible personal property, privilege or license
taxes (but not including any taxes asserted with respect to, and as of the date
of the sale of the Receivables to the Issuer or the issuance and original sale
of the Securities, or federal or State income taxes arising out of distributions
on the Securities), and all costs and expenses in defending against such taxes.
(c) The Depositor shall indemnify, defend and hold harmless the Issuer,
the Trustees and the Securityholders from and against any loss, liability,
claim, damage or expense incurred by reason of the Depositor's willful
misfeasance, bad faith or negligence (other than errors in
40
judgment) in the performance of its duties under this Agreement or any other
Basic Document to which it is a party, or by reason of reckless disregard of its
obligations and duties under this Agreement or any other Basic Document to which
it is a party.
(d) The Depositor shall indemnify, defend and hold harmless the Trustees
from and against all losses, liabilities, claims, damages or expenses arising
out of or incurred in connection with the acceptance or performance of the
trusts and duties contained herein, in the Trust Agreement (in the case of the
Owner Trustee) and in the Indenture (in the case of the Indenture Trustee),
except to the extent that such loss, liability, claim, damage or expense (i)
shall be due to the willful misfeasance, bad faith or negligence of the Owner
Trustee or the Indenture Trustee, as applicable, (ii) in the case of the Owner
Trustee, shall arise from the breach by the Owner Trustee of any of its
representations or warranties set forth in the Trust Agreement, (iii) in the
case of the Indenture Trustee, shall arise from the breach by the Indenture
Trustee of any of its representations and warranties set forth in the Indenture
or shall arise out of or be incurred in connection with the performance by the
Indenture Trustee of duties of a Successor Master Servicer hereunder, (iv) shall
be one as to which the Master Servicer is required to indemnify the Owner
Trustee or the Indenture Trustee, as the case may be, or (v) relates to any tax
other than the taxes with respect to which the Master Servicer shall be required
to indemnify the Owner Trustee or the Indenture Trustee, as the case may be.
(e) The Depositor shall pay any and all taxes levied or assessed upon all
or any part of the Trust Property.
(f) Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee, as the case may be, and
the termination of this Agreement and shall include reasonable fees and expenses
of counsel and expenses of litigation. If the Depositor shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the Depositor, without
interest. Notwithstanding anything to the contrary contained herein, the
Depositor shall only be required to pay (i) any fees, expenses, indemnities or
other liabilities that it may incur under the Basic Documents from funds
available pursuant to, and in accordance with, the payment priorities set forth
in this Agreement and the other Basic Documents and (ii) to the extent the
Depositor has additional funds available (other than funds described in clause
(i)) that would be in excess of amounts that would be necessary to pay the debt
and other obligations of the Depositor in accordance with the Depositor's
certificate of formation, operating agreement and all financing documents to
which the Depositor is a party. The agreement set forth in the preceding
sentence shall constitute a subordination agreement for purposes of Section
510(a) of the Bankruptcy Code. In addition, no amount owing by the Depositor
hereunder in excess of liabilities that it is required to pay in accordance with
the preceding sentence shall constitute a "claim" (as defined in Section 101(5)
of the Bankruptcy Code) against it.
Section 5.03. Merger, Consolidation or Assumption of the Obligations of
Depositor; Certain Limitations.
(a) Any Person (i) into which the Depositor shall be merged or
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Depositor shall be a party
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or (iii) that shall succeed by purchase and assumption to all or substantially
all of the business of the Depositor, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Depositor
under this Agreement, shall be the successor to the Depositor under this
Agreement without the execution or filing of any other document or any further
act on the part of any of the parties to this Agreement; provided, however, that
(A) the Depositor shall have delivered to the Trustees and the Swap Counterparty
an Officer's Certificate and an Opinion of Counsel each stating that such
merger, conversion, consolidation or succession and such agreement of assumption
comply with this Section, (B) the Depositor shall have delivered to the Trustees
and the Swap Counterparty an Opinion of Counsel stating that, in the opinion of
such counsel, either (1) all financing statements and continuation statements
and amendments thereto have been authorized and filed that are necessary to
fully preserve and protect the interest of the Issuer, the Swap Counterparty and
the Indenture Trustee, respectively, in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in which such
details are given, or (2) no such action shall be necessary to fully preserve
and protect such interest and (C) the Rating Agency Condition shall have been
satisfied. Notwithstanding anything to the contrary contained herein, the
execution of the foregoing agreement of assumption and compliance with clauses
(A), (B) and (C) above shall be conditions to the consummation of the
transactions referred to in clauses (i), (ii) and (iii) above.
(b) (i) Subject to paragraph (ii) below, the purpose of the Depositor
shall be to engage in any lawful activity for which a limited liability company
may be organized under the general limited liability company law of the State of
Nevada other than the banking business, the trust company business or the
practice of a profession not permitted to be incorporated by Chapter 86 of the
Nevada Revised Statutes (2005).
(ii) Notwithstanding paragraph (b)(i) above, the purpose of the
Depositor shall be limited to the conduct or promotion of the following
activities:
(A) to acquire retail installment sales contracts, installment
loans, purchase money notes or other notes between motor vehicle
dealers or lenders and purchasers of new and used automobiles,
minivans, sport utility vehicles, light-duty trucks, motorcycles or
commercial vehicles (the "Motor Vehicle Receivables");
(B) to act as settlor or grantor of one or more trusts or
special purpose entities (each, a "Securitization Trust") formed
pursuant to a trust agreement or other agreement for the purpose of
issuing one or more series or classes of certificates, bonds, notes
or other evidences of interest or indebtedness (collectively, the
"Motor Vehicle Securities") secured by or representing beneficial
interests in the Motor Vehicle Receivables;
(C) to acquire, lease, own, hold, sell, transfer, convey,
dispose of, pledge, assign, borrow money against, finance, refinance
or otherwise deal with, publicly or privately and whether with
unrelated third parties or with affiliated entities, retail
installment sales contracts, installment loans, purchase money notes
or other notes between motor vehicle dealers or lenders and
purchasers of Motor Vehicle Receivables;
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(D) to acquire Motor Vehicle Securities or other property of a
Securitization Trust (including remainder interests in collateral or
reserve accounts) or any interest in any of the foregoing;
(E) to issue, authorize, sell and deliver Motor Vehicle
Securities or other instruments secured or collateralized by the
Motor Vehicle Securities;
(F) to own equity interests in other limited liability
companies or partnerships whose purposes are substantially
restricted to those described in clauses (A) through (E) above;
(G) to borrow money other than pursuant to clause (C) above,
but only to the extent that such borrowing is permitted by the terms
of the transactions contemplated by clauses (A) through (F) above;
and
(H) to (1) negotiate, authorize, execute, deliver or assume or
perform the obligations under any agreement, instrument or document
relating to the activities set forth in clauses (A) through (G)
above, including the Basic Documents and (2) engage in any lawful
act or activity and to exercise any powers permitted to limited
liability companies organized under the laws of the State of Nevada
that are incidental to and necessary, convenient or advisable for
the accomplishment of the above-mentioned purposes, including the
entering into of interest rate or basis swap, cap, floor or collar
agreements, currency exchange agreements or similar hedging
transactions and referral, management, servicing and administration
agreements.
So long as any outstanding debt of the Depositor or securities
are rated by any nationally recognized statistical rating
organization, the Depositor shall not issue notes or otherwise
borrow money unless (A) the Depositor has made a written request to
the related nationally recognized statistical rating organization to
issue notes or incur borrowings, which notes or borrowings are rated
by the related nationally recognized statistical rating organization
the same as or higher than the rating afforded any outstanding rated
debt or securities, or (B) such notes or borrowings (1) are fully
subordinated (and which shall provide for payment only after payment
in respect of all outstanding rated debt or securities) or are
nonrecourse against any assets of the Depositor other than the
assets pledged to secure such notes or borrowings, (2) do not
constitute a claim against the Depositor in the event such assets
are insufficient to pay such notes or borrowings and (3) where such
notes or borrowings are secured by the rated debt or securities, are
fully subordinated (and which shall provide for payment only after
payment in respect of all outstanding rated debt or securities) to
such rated debt or securities.
(c) Notwithstanding any other provision of this Section and any provision
of law, the Depositor shall not do any of the following:
(i) engage in any business or activity other than as set forth in
Section 5.03(b);
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(ii) without the unanimous written consent of the members of the
Depositor and the members of the Board of Directors of the Depositor
(including all independent directors of the Depositor), (A) consolidate or
merge the Depositor with or into any Person or sell all or substantially
all of the assets of the Depositor, (B) institute proceedings to have the
Depositor be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against Depositor, (C)
file a petition seeking, or consent to, reorganization or relief with
respect to the Depositor under any applicable federal or State law
relating to bankruptcy, (D) consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Depositor or a substantial part of its property, (E) make any
assignment for the benefit of creditors of the Depositor, (F) admit in
writing the Depositor's inability to pay its debts generally as they
become due, (G) take any action in furtherance of any action set forth in
clauses (A) through (F) above or (H) to the fullest extent permitted by
law, dissolve or liquidate the Depositor; or
(iii) change the current number of independent special members under
the limited liability company agreement of the Depositor.
(d) The Depositor shall not amend its organizational documents except in
accordance with the provisions thereof.
Section 5.04. Limitation on Liability of Depositor and Others. The
Depositor and any director or officer or employee or agent of the Depositor may
rely in good faith on any document of any kind, prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor and any director or officer or employee or agent of the Depositor
shall be reimbursed by the Owner Trustee or the Indenture Trustee, as the case
may be, for any contractual damages, liability or expense incurred by reason of
the Owner Trustee's or the Indenture Trustee's willful misfeasance, bad faith or
negligence (except for errors in judgment) in the performance of their
respective duties hereunder, or by reason of reckless disregard of their
respective obligations and duties hereunder. The Depositor shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability. The indemnities contained in this
Section shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement.
Section 5.05. Depositor Not to Resign. Subject to the provisions of
Section 5.03, the Depositor shall not resign from the obligations and duties
hereby imposed on it as Depositor hereunder.
Section 5.06. Depositor May Own Securities. The Depositor and any of its
Affiliates may, in its individual or any other capacity, become the owner or
pledgee of Securities with the same rights as it would have if it were not the
Depositor or an Affiliate of the Depositor, except as otherwise expressly
provided herein or in any other Basic Document (including in the definition of
the term "Note Balance"). Except as otherwise expressly provided herein or in
the other Basic Documents (including in the definition of the term "Note
Balance"), Securities so owned by or pledged to the Depositor or such Affiliate
shall have an equal and proportionate benefit under the
44
provisions of this Agreement and the other Basic Documents, without preference,
priority or distinction as among the Notes and the Certificates as the case may
be.
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ARTICLE SIX
THE MASTER SERVICER
Section 6.01. Representations and Warranties of Master Servicer. The
Master Servicer makes the following representations and warranties on which the
Issuer is deemed to have relied in acquiring the Trust Property. The
representations and warranties speak as of the date of execution and delivery of
this Agreement and as of the Closing Date, and shall survive the sale, transfer,
assignment and conveyance of the Trust Property to the Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture:
(a) Organization and Good Standing. The Master Servicer is a national
banking association duly organized and validly existing as a banking institution
under the laws of the United States and continues to hold a valid certificate to
do business as such. It is duly authorized to own its properties and transact
its business 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 and in which the failure to be so authorized would
have a material adverse effect on its business, properties, assets, or condition
(financial or other) and those of its subsidiaries, considered as one
enterprise. The Master Servicer has, and at all relevant times had, the power,
authority and legal right to service the Receivables and to hold the Receivable
Files as custodian on behalf of the Issuer.
(b) Due Qualification. The Master Servicer is duly qualified to do
business 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 Master Servicer,
materially and adversely affect the performance by the Master Servicer of its
obligations under, or the validity or enforceability of, this Agreement, each
other Basic Document to which the Master Servicer is a party, the Receivables,
the Notes or the Certificates.
(c) Power and Authority. The Master Servicer has the power and authority
to execute, deliver and perform its obligations under this Agreement and each
other Basic Document to which it is a party; and the execution, delivery and
performance of this Agreement and each other Basic Document to which it is a
party have been duly authorized by the Master Servicer by all necessary action.
(d) Binding Obligation. This Agreement and each other Basic Document to
which the Master Servicer is a party constitute legal, valid and binding
obligations of the Master Servicer, enforceable against the Master Servicer 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' rights 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.
46
(e) No Violation. The execution, delivery and performance by the Master
Servicer of this Agreement and each other Basic Document to which the Master
Servicer is a party, the consummation of the transactions contemplated hereby
and thereby and the fulfillment of their respective terms shall not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the articles
of association or bylaws of the Master Servicer, or any material indenture,
agreement, mortgage, deed of trust or other instrument to which the Master
Servicer is a party, by which the Master Servicer is bound or to which any of
its properties are subject; or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement and the other Basic Documents, or violate any law, order, rule or
regulation applicable to the Master Servicer or its properties of any federal or
State regulatory body, court, administrative agency or other governmental
instrumentality having jurisdiction over the Master Servicer or any of its
properties.
(f) No Proceedings. There are no proceedings or investigations pending or,
to the knowledge of the Master Servicer, threatened, against the Master Servicer
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Master Servicer or its
properties: (i) asserting the invalidity of this Agreement or any of the other
Basic Documents, (ii) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or any of
the other Basic Documents, (iii) seeking any determination or ruling that, in
the reasonable judgment of the Master Servicer, would materially and adversely
affect the performance by it of its obligations under, or the validity or
enforceability of, this Agreement or the Receivables or (iv) seeking to
adversely affect the federal income tax or other federal, State or local tax
attributes of the Securities.
Section 6.02. Liability of Master Servicer; Indemnities. The Master
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Master Servicer under this Agreement.
Such obligations shall include the following:
(a) The Master Servicer shall indemnify, defend and hold harmless
the Issuer, the Trustees, the Securityholders and the Depositor from and
against all losses, liabilities, claims, damages and expenses arising out
of or incurred in connection with the use, ownership or operation by the
Master Servicer or any Affiliate of the Master Servicer of a Financed
Vehicle.
(b) The Master Servicer shall indemnify, defend and hold harmless
the Issuer, the Depositor and the Trustees from and against any taxes that
may at any time be asserted against any such Person as a result of or
relating to the transactions contemplated herein and in the other Basic
Documents, including any sales, gross receipts, gross margin, general
corporation, tangible personal property, privilege or license taxes (but
not including any taxes asserted with respect to, and as of the date of,
the sale of the Receivables to the Issuer or the issuance and original
sale of the Securities, or federal or State income taxes arising out of
distributions on the Securities) and costs and expenses in defending
against such taxes.
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(c) The Master Servicer shall indemnify, defend and hold harmless
the Issuer, the Trustees, the Securityholders and the Depositor from and
against any loss, liability, claim, damage or expense incurred by reason
of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of its duties under this Agreement or any other Basic
Document to which it is a party or by reason of a reckless disregard of
its obligations and duties under this Agreement or any other Basic
Document to which it is a party.
(d) The Master Servicer shall indemnify, defend and hold harmless
the Trustees and their respective officers, directors, employees and
agents from and against all losses, liabilities, claims, damages and
expenses arising out of or incurred in connection with the acceptance or
performance of the trusts and duties herein and contained in the Trust
Agreement (in the case of the Owner Trustee) and contained in the
Indenture (in the case of the Indenture Trustee), except to the extent
that such loss, liability, claim, damage or expense: (i) shall be due to
the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Owner Trustee or the Indenture Trustee, as applicable,
(ii) in the case of the Owner Trustee, shall arise from the breach by the
Owner Trustee of any of its representations or warranties set forth in
Section 7.03 of the Trust Agreement, (iii) in the case of the Indenture
Trustee, shall arise from the breach by the Indenture Trustee of any of
its representations and warranties set forth in the Indenture or shall
arise out of or be incurred in connection with the performance by the
Indenture Trustee of the duties of a Successor Master Servicer hereunder
or (iv) relates to any tax other than to the taxes with respect to which
either the Depositor or the Master Servicer shall be required to indemnify
the Owner Trustee or the Indenture Trustee, as applicable.
(e) The Master Servicer shall pay the Owner Trustee compensation,
reimbursement or other payments owed to it pursuant to Sections 8.01 and
8.02 of the Trust Agreement.
In addition to the foregoing indemnities, if the Owner Trustee or the
Indenture Trustee is entitled to indemnification by the Depositor pursuant to
Section 5.02 and the Depositor is unable for any reason to provide such
indemnification to the Owner Trustee or the Indenture Trustee, then the Master
Servicer shall be liable for any indemnification that the Owner Trustee or the
Indenture Trustee is entitled to under Section 5.02. For purposes of this
Section, in the event of a termination of the rights and obligations of the
Master Servicer (or any Successor Master Servicer) pursuant to Section 7.01 or a
resignation by such Master Servicer pursuant to Section 6.05, such Master
Servicer shall be deemed to be the Master Servicer pending appointment of a
Successor Master Servicer (other than the Indenture Trustee) pursuant to Section
7.02. Indemnification under this Section by the Master Servicer (or any
Successor Master Servicer), with respect to the period such Person was (or was
deemed to be) the Master Servicer, shall survive the termination of each Person
as Master Servicer or a resignation by such Person as Master Servicer, as well
as the resignation or removal of the Owner Trustee or the Indenture Trustee, as
the case may be, or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Master Servicer shall have made any indemnity payments pursuant to this Section
and the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person shall promptly repay such
amounts to the Master Servicer, as the case may be, without interest.
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Section 6.03. Merger, Consolidation or Assumption of the Obligations of
Master Servicer. Any Person (i) into which the Master Servicer shall be merged
or consolidated, (ii) which may result from any merger, conversion or
consolidation to which the Master Servicer shall be a party or (iii) which may
succeed to all or substantially all of the business of the Master Servicer,
which Person in any of the foregoing cases is an Eligible Servicer and executes
an agreement of assumption to perform every obligation of the Master Servicer
under this Agreement, shall be the successor to the Master Servicer under this
Agreement without the execution or filing of any other document or any further
act on the part of any of the parties hereto; provided, however, the Master
Servicer shall have delivered to the Depositor, the Swap Counterparty and the
Trustees (a) an Officer's Certificate and an Opinion of Counsel each stating
that such merger, conversion or consolidation and such agreement of assumption
comply with this Section and (b) an Opinion of Counsel stating that, in the
opinion of such counsel, either (1) all financing statements and continuation
statements and amendments thereto have been authorized and filed that are
necessary to preserve and protect the interest of the Issuer, the Swap
Counterparty and the Indenture Trustee, respectively, in the assets of the
Issuer and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given or (2) no such action shall be
necessary to preserve and protect such interest. Notwithstanding anything to the
contrary contained herein, the execution of the foregoing agreement of
assumption and compliance with clauses (a) and (b) above shall be conditions to
the consummation of the transactions referred to in clauses (i), (ii) and (iii)
above. The Master Servicer shall provide prior written notice of any merger,
conversion, consolidation or succession pursuant to this Section to the
Trustees, the Swap Counterparty, the Rating Agencies and the Depositor. The
Master Servicer shall provide such information in writing as reasonably
requested by the Depositor to allow the Depositor to comply with its Exchange
Act reporting obligations with respect to a Successor Master Servicer.
Section 6.04. Limitation on Liability of Master Servicer and Others.
(a) Neither the Master Servicer nor any of its directors, officers,
employees or agents shall be under any liability to the Issuer or any
Securityholders for any action taken or for refraining from the taking of any
action pursuant hereto, or for errors in judgment; provided, however, that this
provision shall not protect the Master Servicer or any such Person against any
liability that would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Master Servicer and any of
its respective directors, officers, employees or agents may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person in respect of any matters arising under this Agreement.
(b) Except as provided herein, the Master Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to administer and service the Receivables in accordance
with this Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Master Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties to this Agreement and the
interests of the Noteholders and the Certificateholders under this Agreement. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Master
Servicer.
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Section 6.05. Wachovia Bank Not to Resign as Master Servicer. Subject to
the provisions of Section 6.03, Wachovia Bank shall not resign from the
obligations and duties imposed on it pursuant hereto as Master Servicer under
this Agreement except upon determination that the performance of its duties
hereunder is no longer permissible under applicable law. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Depositor, the Swap
Counterparty and the Trustees. No such resignation shall become effective until
the Indenture Trustee or a Successor Master Servicer shall have (i) assumed the
obligations and duties of the Master Servicer in accordance with Section 7.02,
(ii) become the Administrator under the Administration Agreement pursuant to
Section 1.20 thereof and (iii) provided such information in writing as
reasonably requested by the Depositor to allow the Depositor to comply with its
Exchange Act reporting obligations with respect to a Successor Master Servicer.
Section 6.06. Master Servicer May Own Securities. The Master Servicer and
any of its Affiliates may, in its individual or other capacity, become the owner
or pledgee of Securities with the same rights as it would have if it were not
the Master Servicer or an Affiliate of the Master Servicer, except as otherwise
expressly provided herein or in any other Basic Document (including in the
definition of the term "Note Balance"). Except as otherwise expressly provided
herein or in the other Basic Documents (including in the definition of the term
"Note Balance"), Securities so owned by or pledged to the Master Servicer or
such Affiliate shall have an equal and proportionate benefit under the
provisions of this Agreement and the other Basic Documents, without preference,
priority or distinction as among the Notes and the Certificates, as the case may
be.
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ARTICLE SEVEN
SERVICER TERMINATION EVENTS
Section 7.01. Servicer Termination Events. The occurrence of any one of
the following events shall constitute an event of servicing termination
hereunder (each, a "Servicer Termination Event"):
(a) any failure by the Master Servicer to deliver to the Owner
Trustee or the Indenture Trustee the Master Servicer's Certificate for any
Collection Period, which failure shall continue unremedied beyond the
earlier of three Business Days following the date such Master Servicer's
Certificate was required to be delivered and the related Deposit Date, or
any failure by the Master Servicer to make any required payment or deposit
under this Agreement, which failure shall continue unremedied beyond the
earlier of five Business Days following the date such payment or deposit
was due and, in the case of a payment or deposit to be made no later than
a Distribution Date or the related Deposit Date, such Distribution Date or
Deposit Date, as applicable;
(b) any failure by the Master Servicer to duly observe or to perform
in any material respect any other covenant or agreement of the Master
Servicer set forth in this Agreement, which failure shall materially and
adversely affect the rights of the Depositor or the Noteholders and shall
continue unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given (i) to the Master Servicer by the Depositor, the Owner
Trustee or the Indenture Trustee or (ii) to the Depositor, the Master
Servicer and the Trustees by the Holders of Notes evidencing not less than
25% of the Note Balance of the Controlling Class (or, after the Notes have
been paid in full, the holders of Certificates evidencing not less than
25% of the aggregate Certificate Percentage Interests then outstanding);
(c) any representation or warranty of the Master Servicer made in
this Agreement, or in any certificate delivered pursuant hereto or in
connection herewith, other than any representation or warranty relating to
a Receivable that has been purchased by the Master Servicer, proving to
have been incorrect in any material respect as of the time when the same
shall have been made, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have been
eliminated or otherwise cured for a period of 30 days after the date on
which written notice of such circumstance or condition, requiring the same
to be eliminated or cured, shall have been given (i) to the Master
Servicer by the Depositor, the Owner Trustee or the Indenture Trustee or
(ii) to the Depositor, the Master Servicer and the Trustees by the Holders
of Notes evidencing not less than 25% of the Note Balance of the
Controlling Class;
(d) the entry of a decree or order by a court or agency or
supervisory authority of competent jurisdiction for the appointment of a
conservator, receiver, liquidator or trustee for the Master Servicer in
any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceeding, or for the winding up or liquidation of
its affairs, which decree or order continues unstayed and in effect for a
period of 60 consecutive days; or
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(e) the consent by the Master Servicer to the appointment of a
conservator, receiver, liquidator or trustee in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceeding of or relating to the Master Servicer or relating to
substantially all of its property, the admission in writing by the Master
Servicer of its inability to pay its debts generally as they become due,
the filing by the Master Servicer of a petition to take advantage of any
applicable insolvency or reorganization statute, the making by the Master
Servicer of an assignment for the benefit of its creditors or the
voluntary suspension by the Master Servicer of payment of its obligations.
If a Servicer Termination Event shall have occurred and not have been
remedied, either the Indenture Trustee or the Holders of Notes evidencing not
less than 51% of the Note Balance of the Controlling Class (or holders of
Certificates representing not less than 51% of the aggregate Certificate
Percentage Interests outstanding if the Notes are no longer Outstanding), in
each case by notice then given in writing to the Depositor, the Owner Trustee
and the Master Servicer (and to the Indenture Trustee if given by the
Noteholders) (each, a "Servicer Termination Notice") may terminate all the
rights and obligations of the Master Servicer under this Agreement; provided,
however, that the indemnification obligations of the Master Servicer under
Section 6.02 shall survive such termination. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Notes, the
Certificates, the Trust Property or otherwise, shall, without further action,
pass to and be vested in the Indenture Trustee or such Successor Master Servicer
as may be appointed under Section 7.02; and, without limitation, the Trustees
are hereby authorized and empowered to execute and deliver, on behalf of the
outgoing Master Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivable
Files or the certificates of title to the Financed Vehicles, or otherwise. The
outgoing Master Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Master Servicer in effecting the termination of the
responsibilities and rights of the outgoing Master Servicer under this
Agreement, including the transfer to the Indenture Trustee or such Successor
Master Servicer for administration by it of all cash amounts that shall at the
time be held by the outgoing Master Servicer for deposit, or have been deposited
by the outgoing Master Servicer, in the Accounts or thereafter received with
respect to the Receivables, all Receivable Files and all information or
documents that the Indenture Trustee or such Successor Master Servicer may
require. In addition, the Master Servicer shall transfer its electronic records
relating to the Receivables to the Successor Master Servicer in such electronic
form as the Successor Master Servicer may reasonably request. All Transition
Costs shall be paid by the outgoing Master Servicer (or by the initial Master
Servicer if the outgoing Master Servicer is the Indenture Trustee acting on an
interim basis) upon presentation of reasonable documentation of such costs and
expenses.
The Trustees shall have no obligation to notify the Noteholders, the
Certificateholders or any other Person of the occurrence of any event specified
in this Section prior to the continuance of such event through the end of any
cure period specified in this Section.
Section 7.02. Appointment of Successor Master Servicer. Upon the
resignation of the Master Servicer pursuant to Section 6.05 or the termination
of the Master Servicer pursuant to Section 7.01, the Indenture Trustee shall be
the successor in all respects to the Master Servicer in
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its capacity as Master Servicer under this Agreement and shall be subject to all
the obligations and duties placed on the Master Servicer by the terms and
provisions of this Agreement, and shall provide such information in writing as
reasonably requested by the Depositor to allow the Depositor to comply with its
Exchange Act reporting obligations with respect to the Indenture Trustee in its
capacity as Successor Master Servicer; provided, however, that the Indenture
Trustee, as Successor Master Servicer, shall not, in any event, be required to
make any Advances pursuant to Section 4.07 and shall have no obligations
pursuant to Section 3.09 with respect to the fees and expenses of the Owner
Trustee or the Indenture Trustee, the fees and expenses of the Owner Trustee's
attorneys or the Indenture Trustee's attorneys, the fees and expenses of any
custodian appointed by the Trustees, the fees and expenses of Independent
accountants or expenses incurred in connection with distributions and reports to
the Certificateholders and the Noteholders. As compensation therefor, the
Indenture Trustee shall be entitled to such compensation (whether payable out of
the Collection Account or otherwise) as the Master Servicer would have been
entitled to under this Agreement if no such resignation or termination had
occurred, except that all collections on or in respect of the Receivables shall
be deposited in the Collection Account within two Business Days of receipt and
shall not be retained by the Master Servicer. Notwithstanding the foregoing, the
Indenture Trustee may, if it shall be unwilling so to act, or shall, if it is
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, an Eligible Servicer as the successor to the terminated Master
Servicer under this Agreement. In connection with such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
Successor Master Servicer out of collections on or in respect of the Receivables
as it and such successor shall agree; provided, however, that such compensation
shall not be greater than that payable to Wachovia Bank as initial Master
Servicer hereunder without the prior consent of the Holders of Notes evidencing
not less than 51% of the Note Balance of the Controlling Class (or holders of
Certificates representing not less than 51% of the aggregate Certificate
Percentage Interests then outstanding if the Notes are no longer Outstanding).
The Indenture Trustee and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession,
including providing such information in writing as reasonably requested by the
Depositor to allow the Depositor to comply with its Exchange Act reporting
obligations with respect to such Successor Master Servicer. The Indenture
Trustee shall not be relieved of its duties as Successor Master Servicer under
this Section until a newly appointed Master Servicer shall have assumed the
obligations and duties of the terminated Master Servicer under this Agreement.
Notwithstanding anything to the contrary contained herein, in no event shall the
Indenture Trustee be liable for any servicing fee or for any differential in the
amount of the servicing fee paid hereunder and the amount necessary to induce
any Successor Master Servicer to act as Successor Master Servicer hereunder.
Section 7.03. Effect of Servicing Transfer.
(a) After a transfer of servicing hereunder, the Indenture Trustee or
Successor Master Servicer shall notify the Obligors to make directly to the
Successor Master Servicer payments that are due under the Receivables after the
effective date of such transfer.
(b) Except as provided in Section 7.02, after a transfer of servicing
hereunder, the outgoing Master Servicer shall have no further obligations with
respect to the administration, servicing, custody or collection of the
Receivables and the Successor Master Servicer shall have all of such
obligations, except that the outgoing Master Servicer will transmit or cause to
be
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transmitted directly to the Successor Master Servicer for its own account,
promptly on receipt and in the same form in which received, any amounts or items
held by the outgoing Master Servicer (properly endorsed where required for the
Successor Master Servicer to collect any such items) received as payments upon
or otherwise in connection with the Receivables.
(c) Any Successor Master Servicer shall provide the Depositor with access
to the Receivable Files and to the Successor Master Servicer's records (whether
written or automated) with respect to the Receivable Files. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the Successor Master Servicer. Nothing in this
Section shall affect the obligation of a Successor Master Servicer to observe
any applicable law prohibiting disclosure of information regarding the Obligors,
and the failure of the Master Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section.
(d) Any transfer of servicing hereunder shall not constitute an assumption
by the related Successor Master Servicer of any liability of the related
outgoing Master Servicer arising out of any breach by such outgoing Master
Servicer of such outgoing Master Servicer's duties hereunder prior to such
transfer of servicing.
Section 7.04. Notification to Noteholders, Swap Counterparty,
Certificateholders and Rating Agencies. Upon any notice of a Servicer
Termination Event or upon any termination of, or any appointment of a successor
to, the Master Servicer pursuant to this Article, the Indenture Trustee shall
give prompt written notice thereof to the Noteholders and the Swap Counterparty
and the Owner Trustee shall give prompt written notice thereof to the
Certificateholders and to the Rating Agencies.
Section 7.05. Waiver of Past Servicer Termination Events. The Noteholders
evidencing not less than 51% of the Note Balance of the Controlling Class may,
on behalf of all Noteholders, waive any Servicer Termination Event and its
consequences, except an event resulting from the failure to make any required
deposits to or payments from the Collection Account, the Note Payment Account,
the Certificate Payment Account or the Reserve Fund in accordance with this
Agreement. Upon any such waiver of a Servicer Termination Event, such event
shall cease to exist, and shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other event or impair any right arising therefrom, except to the extent
expressly so waived.
Section 7.06. Repayment of Advances. If the identity of the Master
Servicer shall change, the outgoing Master Servicer shall be entitled to receive
reimbursement for outstanding and unreimbursed Advances made pursuant to Section
4.07 by the outgoing Master Servicer.
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ARTICLE EIGHT
TERMINATION
Section 8.01. Optional Purchase of All Receivables.
(a) If, as of the last day of any Collection Period, the Pool Balance
shall be less than or equal to 10% of the Cutoff Date Pool Balance, the Seller
shall have the option to purchase on the following Distribution Date the Owner
Trust Estate, other than the Collection Account, the Note Payment Account, the
Certificate Payment Account, the Reserve Fund and any Collateral Support
Account. To exercise such option, the Seller shall notify the Depositor, the
Master Servicer, the Owner Trustee, the Indenture Trustee, the Swap Counterparty
and the Rating Agencies, not fewer than 15 nor more than 30 days prior to the
Distribution Date on which such repurchase is to be effected and shall deposit
into the Collection Account on the related Deposit Date an amount equal to the
lesser of the (i) fair market value of the Receivables and (ii) aggregate
Purchase Amount for the Receivables (including Receivables that became Defaulted
Receivables during the related Collection Period); provided, however, that the
Seller shall not be permitted to exercise such option unless the amount to be
deposited in the Collection Account (together with amounts on deposit in the
Reserve Fund and the Collection Account) pursuant to this Section is at least
equal to the sum of all amounts due to the Master Servicer under this Agreement
plus the Note Balance plus all accrued but unpaid interest (including any
overdue interest) on the Notes plus all amounts due to the Master Servicer for
any outstanding and unreimbursed Advances and Nonrecoverable Advances plus all
accrued but unpaid Total Trustee Fees plus all amounts owed to the Swap
Counterparty, including Net Swap Payments and Swap Termination Payments, if any.
Upon such payment, the Seller shall succeed to and own all interests in and to
the Issuer. The aggregate amount so deposited in respect of such Distribution
Date, plus, to the extent necessary, all amounts in the Reserve Fund, if any,
shall be used to make payments in full to the Noteholders in the manner set
forth in Article Four.
(b) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders shall succeed to the rights of the Noteholders hereunder and
the Indenture Trustee shall continue to carry out its obligations hereunder with
respect to the Certificateholders, including making distributions from the
Collection Account in accordance with Section 4.09(c) and making withdrawals
from the Reserve Fund in accordance with Sections 4.02 and 4.08.
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ARTICLE NINE
EXCHANGE ACT REPORTING
Section 9.01. Further Assurances. The Indenture Trustee and the Master
Servicer shall reasonably cooperate with the Depositor in connection with the
satisfaction of the Depositor's reporting requirements under the Exchange Act
with respect to the Issuer. The Depositor shall not exercise its right to
request delivery of information or other performance under these provisions
other than in good faith. In addition to the other information specified in this
Article Nine, if so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act, the Indenture Trustee and the
Master Servicer shall provide the Depositor with (i) such information which is
available to such Person without unreasonable effort or expense and within such
timeframe as may be reasonably requested by the Depositor to comply with the
Depositor's reporting obligations under the Exchange Act and (ii) to the extent
such Person is a party (and the Depositor is not a party) to any agreement or
amendment required to be filed, copies of such agreement or amendment in
▇▇▇▇▇-compatible form. Each of the Master Servicer and the Indenture Trustee
acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB.
Section 9.02. Form 10-D Filings. So long as the Depositor is required to
file Exchange Act Reports with respect to the Issuer, no later than each
Determination Date, each of the Indenture Trustee and the Master Servicer shall
notify (and the Master Servicer shall cause any Subservicer to notify) the
Depositor of any Form 10-D Disclosure Item with respect to such Person (or in
the case of the Indenture Trustee, a Responsible Officer of the Indenture
Trustee), together with a description of any such Form 10-D Disclosure Item in
form and substance reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer is obligated to provide pursuant to other
provisions of this Agreement, if so requested by the Depositor, the Master
Servicer shall provide such information which is available to the Master
Servicer, without unreasonable effort or expense regarding the performance or
servicing of the Receivables as is reasonably required to facilitate preparation
of distribution reports in accordance with Item 1121 of Regulation AB. Such
information shall be provided concurrently with the statements to
Securityholders pursuant to Section 4.10, commencing with the first such report
due not less than five Business Days following such request.
Section 9.03. Form 8-K Filings. So long as the Depositor is required to
file Exchange Act Reports with respect to the Issuer, each of the Indenture
Trustee and the Master Servicer shall promptly notify the Depositor, but in no
event later than two Business Days after its occurrence, of any Reportable Event
of which such Person (or in the case of the Indenture Trustee, a Responsible
Officer of the Indenture Trustee) has actual knowledge. Each Person shall be
deemed to have actual knowledge of any such event to the extent that it relates
to such Person or any action or failure to act by such Person.
Section 9.04. Form 10-K Filings. So long as the Depositor is required to
file Exchange Act Reports: (i) if the Item 1119 Parties listed on Schedule B
have changed since the Closing Date, no
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later than February 1 of each year, commencing in 2009, the Depositor shall
provide each of the Indenture Trustee and the Master Servicer with an updated
Schedule B setting forth the Item 1119 Parties and (ii) no later than March 15
of each year, commencing in 2009, the Indenture Trustee and the Master Servicer
shall notify the Depositor of any Form 10-K Disclosure Item, together with a
description of any such Form 10-K Disclosure Item in form and substance
reasonably acceptable to the Depositor.
Section 9.05. Report on Assessment of Compliance and Attestation. So long
as the Depositor is required to file Exchange Act Reports, on or before March 15
of each calendar year, commencing in 2009:
(a) The Indenture Trustee shall deliver to the Depositor and the
Master Servicer the Servicing Criteria Assessment. Such report shall be
signed by an authorized officer of the Indenture Trustee and shall at a
minimum address each of the Servicing Criteria specified on a
certification substantially in the form of Part I of Schedule C hereto
delivered to the Depositor concurrently with the execution of this
Agreement (provided that such certification may be revised after the date
of this Agreement as agreed by the Depositor and the Indenture Trustee to
reflect any guidance with respect to such criteria from the Commission).
To the extent any of the Servicing Criteria are not applicable to the
Indenture Trustee, with respect to asset-backed securities transactions
taken as a whole involving the Indenture Trustee and that are backed by
the same asset type backing the Notes, such report shall include such a
statement to that effect. The Indenture Trustee acknowledges and agrees
that the Depositor and the Master Servicer with respect to its duties as
the Certifying Person, and each of their respective officers and directors
shall be entitled to rely on upon each such Servicing Criteria Assessment
and the attestation delivered pursuant to Section 9.05(b).
(b) The Indenture Trustee shall deliver to the Depositor and the
Master Servicer a report of a registered public accounting firm that
attests to, and reports on, the assessment of compliance made by the
Indenture Trustee and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 13a-18 and 15d-18 of the
Exchange Act (or any successor provisions), Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X (or any successor provisions) under the Securities Act
and the Exchange Act, including that, in the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in
such report why it was unable to express such an opinion. Such report must
be available for general use and not contain restricted use language.
(c) The Indenture Trustee shall cause each Reporting Subcontractor
to deliver to the Depositor and the Master Servicer an assessment of
compliance and accountant's attestation as and when provided in paragraphs
(a) and (b) of this Section. An assessment of compliance provided by a
Subcontractor need not address any elements of the Servicing Criteria
other than those specified by the Indenture Trustee pursuant to Section
9.05(a).
(d) In the event the Indenture Trustee or Reporting Subcontractor is
terminated or resigns during the term of this Agreement, such Person shall
provide the documents and
57
information pursuant to this Section with respect to the period of time it
was subject to this Agreement or provided services with respect to the
Issuer or the Receivables.
Section 9.06. Back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
(a) No later than February 15 of each year, beginning in 2009, the Master
Servicer shall provide the Performance Certification to the Certifying Person as
Schedule E (in the case of the Master Servicer), in each case on which the
Certification Parties can reasonably rely; provided that so long as the Master
Servicer is an Affiliate of the Depositor, the Master Servicer may, but is not
required to deliver the Performance Certificate.
(b) The Depositor will not request delivery of a certification under this
clause unless the Depositor is required under the Exchange Act to file an annual
report on Form 10-K with respect to the Issuer. In the event that prior to the
filing date of the Form 10-K in March of each year, the Master Servicer has
actual knowledge of information material to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification,
the Master Servicer shall promptly notify the Depositor.
Section 9.07. Use of Subcontractors.
(a) It shall not be necessary for the Indenture Trustee or the Master
Servicer to seek the consent of the Depositor or any other party hereto to the
utilization of any Subcontractor. Each of the Indenture Trustee and the Master
Servicer shall promptly upon request provide to the Depositor (or any designee
of the Depositor, such as the Master Servicer or the Administrator) a written
description (in form and substance satisfactory to the Depositor) of the role
and function of each Subcontractor utilized by such Person, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such Subcontractors
are "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
(b) As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Indenture Trustee shall cause any such
Subcontractor for the benefit of the Depositor to comply with the provisions of
Sections 9.05 and 9.06 to the same extent as if such Subcontractor were the
Indenture Trustee. The Indenture Trustee shall be responsible for obtaining from
each Subcontractor and delivering to the Depositor, any assessment of compliance
and attestation required to be delivered by such Subcontractor under Section
9.05 and Section 9.06, in each case as and when required to be delivered.
(c) As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Master Servicer shall cause any such
Subcontractor for the benefit of the Depositor to comply with the provisions of
Section 3.11(d), Section 3.12 and Section 9.06, to the same extent as if such
Subcontractor were the Master Servicer. The Master Servicer shall be responsible
for obtaining from each Subcontractor and delivering to the Depositor, any
assessment of compliance and attestation required to be delivered by such
Subcontractor under this Agreement, in each case as and when required to be
delivered.
Section 9.08. Representations and Warranties. The Indenture Trustee
represents that:
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(i) there are no affiliations, relating to the Indenture Trustee
with respect to any Item 1119 Party;
(ii) there are no relationships or transactions with respect to any
Item 1119 Party and the Indenture Trustee that are outside the ordinary
course of business or on terms other than would be obtained in an
arm's-length transaction with an unrelated third party, apart from the
transactions contemplated under the Basic Documents, and that are material
to the investors' understanding of the Notes; and
(iii) there are no legal proceedings pending, or known to be
contemplated by governmental authorities, against the Indenture Trustee,
or of which the property of the Indenture Trustee is subject, that is
material to the Noteholders.
Section 9.09. Indemnification.
(a) Each of the Indenture Trustee and the Master Servicer (if the Master
Servicer is not the Seller) shall indemnify the Depositor, each affiliate of the
Depositor, the Master Servicer with respect to its duties as Certifying Person
or each Person who controls any of such parties (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act) and the respective
present and former directors, officers, employees and agents of each of the
foregoing, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in the Provided Information or (B) the omission or alleged
omission to state in the Provided Information a material fact required to
be stated in the Provided Information, or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, by way of clarification, that clause
(B) of this paragraph shall be construed solely by reference to the
related Provided Information and not to any other information communicated
in connection with a sale or purchase of securities, without regard to
whether the Provided Information or any portion thereof is presented
together with or separately from such other information; or
(ii) with respect to the Indenture Trustee, any failure by the
Indenture Trustee to deliver any Servicing Criteria Assessment when and as
required under this Article Nine and with respect to the Master Servicer,
any failure by the Master Servicer to deliver any information, report,
certification, accountant's letter or other material when and as required
under Section 3.11, Section 3.12 or Article Nine, as applicable.
(b) In the case of any failure of performance described in Section
9.09(a)(ii), each of the Indenture Trustee and the Master Servicer shall
promptly reimburse the Depositor for all costs reasonably incurred by each such
party in order to obtain the information, report, certification, accountants'
letter or other material not delivered as required by the Indenture Trustee or
the Master Servicer, as applicable.
(c) Each of the Indenture Trustee and the Master Servicer shall require
that any Reporting Subcontractor agree to the provisions of paragraphs (a) and
(b) of this Section, or shall
59
be responsible for all such indemnification, costs or expenses if the Reporting
Subcontractor will not agree to such provisions.
(d) Notwithstanding anything to the contrary contained herein, in no event
shall the Indenture Trustee be liable for special, indirect or consequential
damages of any kind whatsoever, including but not limited to lost profits, even
if the Indenture Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
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ARTICLE TEN
MISCELLANEOUS
Section 10.01. Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Seller, the Master Servicer and the Owner Trustee, on behalf of the Issuer, with
the consent of the Indenture Trustee, but without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provision in
this Agreement that may be inconsistent with any other provisions in this
Agreement or any offering document used in connection with the initial offer and
sale of the Notes, to add, change or eliminate any other provisions with respect
to matters or questions arising under this Agreement that are not inconsistent
with the provisions of this Agreement; provided, however, that no such amendment
(i) may materially adversely affect the interests of any Noteholder and (ii)
will be permitted unless an Opinion of Counsel is delivered to the Depositor,
the Owner Trustee, the Swap Counterparty and the Indenture Trustee to the effect
that such amendment will not cause the Issuer to be characterized for federal
income tax purposes as an association taxable as a corporation or otherwise have
any material adverse impact on the federal income taxation of any Notes
Outstanding.
(b) This Agreement may also be amended from time to time by the Depositor,
the Seller, the Master Servicer and the Owner Trustee, on behalf of the Issuer,
with the consent of the Indenture Trustee and the Holders of Notes evidencing at
least 66?% of the Note Balance of the Controlling Class, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Noteholders; provided, however, that no such amendment (i) will be permitted
unless an Opinion of Counsel is delivered to the Depositor, the Swap
Counterparty and the Trustees to the effect that such amendment will not cause
the Issuer to be characterized for federal income tax purposes as an association
or publicly traded partnership taxable as a corporation or otherwise have any
material adverse impact on the federal income taxation of any Notes Outstanding
or any Noteholder and (ii) may: (A) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, or change the allocation or priority
of, collections of payments on or in respect of the Receivables or distributions
that are required to be made for the benefit of the Noteholders or change any
Interest Rate or the Reserve Fund Required Amount without the consent of 100% of
the Noteholders of Notes then Outstanding and the Swap Counterparty; or (B)
reduce the percentage of the Note Balance of the Controlling Class, the consent
of the Noteholders of which is required for any amendment to this Agreement
without the consent of 100% of the Noteholders of Notes then Outstanding.
(c) An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder if (i) the Person requesting
such amendment obtains and delivers to the Trustees an Opinion of Counsel to
that effect or (ii) the Rating Agency Condition is satisfied.
(d) Prior to the execution of any amendment or consent pursuant to this
Section, the Master Servicer shall provide written notification of the substance
of such amendment or consent
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to each Rating Agency and the Swap Counterparty and a draft of such proposed
amendment to the Swap Counterparty.
(e) Promptly after the execution of any amendment or consent pursuant to
Section 10.01(b), the Owner Trustee shall furnish (i) written notification of
the substance of such amendment or consent to each Certificateholder and (ii) a
copy of such executed amendment or consent to the Swap Counterparty. It shall
not be necessary for the consent of the Noteholders pursuant to Section 10.01(b)
to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of the Noteholders
provided for in this Agreement) and of evidencing the authorization of the
execution thereof by the Noteholders shall be subject to such reasonable
requirements as the Trustees may prescribe.
(f) Prior to the execution of any amendment pursuant to this Section, the
Depositor, the Swap Counterparty and the Trustees shall be entitled to receive
and rely upon (i) an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and (ii) an Officer's
Certificate of the Master Servicer that all conditions precedent provided for in
this Agreement to the execution of such amendment have been complied with. The
Owner Trustee or the Indenture Trustee may, but shall not be obligated to, enter
into any such amendment which affects such Owner Trustee's or Indenture
Trustee's own rights, duties or immunities under this Agreement or otherwise.
(g) Notwithstanding the foregoing provisions of Section 10.01, in the
event the parties to this Agreement desire to further clarify or amend any
provision of Article Nine, or subject to Section 9.05(a), the information
contained in Schedule C, this Agreement shall be amended to reflect the new
agreement between the parties covering matters in this Article Nine, pursuant to
Section 9.01, or Schedule C; provided (i) such amendment will not require any
Opinion of Counsel or satisfaction of the Rating Agency Condition or the consent
of any Noteholder or Certificateholder and (ii) the Master Servicer shall have
given written notice to the Rating Agencies not fewer than ten days prior to the
effectiveness of any such amendment.
(h) Notwithstanding the foregoing provisions of Section 10.01, this
Agreement, or any provision or definition set forth in any other Basic Document
which is incorporated by reference in this Agreement, may only be amended or
modified with the prior written consent of the Swap Counterparty if such
amendment or modification could have a materially adverse effect on the Swap
Counterparty.
Section 10.02. Protection of Title to Issuer.
(a) The Depositor or the Master Servicer, or both, shall authorize and
file such financing statements and cause to be authorized and filed such
continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of the
Issuer and of the Indenture Trustee for the benefit of the Noteholders in the
Receivables and in the proceeds thereof. The Depositor or the Master Servicer,
or both, shall deliver (or cause to be delivered) to the Trustees file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
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(b) Neither the Depositor nor the Master Servicer shall change its name,
identity or organizational structure in any manner that would make any financing
statement or continuation statement filed in accordance with Section 10.02(a)
seriously misleading within the meaning of Section 9-506 of the UCC, unless it
shall have given the Trustees at least 60 days' prior written notice thereof and
shall have promptly filed such amendments to previously filed financing
statements or continuation statements or such new financing statements as may be
necessary to continue the perfection of the interest of the Issuer and the
Indenture Trustee for the benefit of the Noteholders in the Receivables and the
proceeds thereof.
(c) Each of the Seller, the Depositor and the Master Servicer shall give
the Trustees at least 60 days' prior written notice of any change in its name,
identity, organizational structure or jurisdiction of organization or any
relocation of its principal place of business or chief executive office if, as a
result of such change or relocation, the applicable provisions of the UCC would
require the filing of any amendment to any previously filed financing statement
or continuation statement or of any new financing statement and shall promptly
file any such amendment, continuation statement or new financing statement. The
Depositor shall at all times maintain its jurisdiction of organization, its
principal place of business and its chief executive office within the United
States. The Master Servicer shall at all times maintain each office from which
it shall service Receivables, and each office at which the Receivable Files are
located, within the United States.
(d) The Master Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
and held by the Reserve Fund in respect of such Receivable.
(e) The Master Servicer shall maintain its computer systems so that, from
and after the time of transfer of the Receivables to the Issuer pursuant to this
Agreement, the Master Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly and unambiguously
the interest of the Issuer and the Indenture Trustee in such Receivable and that
such Receivable is owned by the Issuer and has been pledged to the Indenture
Trustee pursuant to the Indenture. Indication of the Issuer's and the Indenture
Trustee's interest in a Receivable shall be deleted from or modified on the
Master Servicer's computer systems when, and only when, such Receivable shall
have been paid in full or repurchased by the Seller or purchased by the Master
Servicer.
(f) If at any time the Depositor or the Master Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in any
motor vehicle retail installment sale contract to any prospective purchaser,
lender or other transferee, the Master Servicer shall give to such prospective
purchaser, lender or other transferee computer tapes, CDs, records or printouts
(including any restored from back-up archives) that, if they shall refer in any
manner whatsoever to any Receivable, shall indicate clearly and unambiguously
that such Receivable has been sold and is owned by the Issuer and has been
pledged to the Indenture Trustee (unless such Receivable has been paid in full
or repurchased by the Seller or purchased by the Master Servicer).
63
(g) The Master Servicer shall permit the Trustees and their respective
agents at any time during normal business hours to inspect, audit and make
copies of and abstracts from the Master Servicer's records regarding any
Receivable.
(h) If the Seller has repurchased one or more Receivables from the Issuer
pursuant to Section 2.04 or the Master Servicer has purchased one or more
Receivables from the Issuer pursuant to Section 3.08, the Master Servicer shall,
upon request, furnish to the Owner Trustee or to the Indenture Trustee, within
ten Business Days, a list of all Receivables (by contract number and name of
Obligor) then held as part of the Issuer, together with a reconciliation of such
list to the Schedule of Receivables (as amended or supplemented to date) and to
each of the Master Servicer's Certificates furnished before such request
indicating removal of Receivables from the Issuer.
(i) The Master Servicer shall deliver to the Depositor, the Swap
Counterparty and the Trustees, promptly after the authorization and delivery of
each amendment to any financing statement delivered pursuant to this Agreement,
an Opinion of Counsel stating that, in the opinion of such counsel, either (A)
all financing statements and continuation statements have been authorized and
filed that are necessary fully to preserve and protect the interest of the
Depositor (in the case of an opinion delivered by the Master Servicer) or the
Issuer and the Indenture Trustee (in the case of an opinion delivered by the
Depositor) in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given, or (B)
no such action shall be necessary to preserve and protect such interest.
(j) The Depositor shall, to the extent required by applicable law, cause
the Notes to be registered with the Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods specified in such
sections.
Section 10.03. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, sent by telecopier,
overnight courier or mailed by certified mail, return receipt requested, or,
where electronic delivery is applicable and requested, shall be delivered by
electronic delivery, and shall be deemed to have been duly given upon receipt in
the case of (i) the Depositor, at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, (ii) the Seller, at ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department, (iii) the Master
Servicer, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Treasury Department, (iv) the Issuer or the Owner
Trustee, at the Corporate Trust Office, (v) the Indenture Trustee, at the
Corporate Trust Office, (vi) Fitch, at Fitch, Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Auto ABS Group (email:
▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇-▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), (vii) Standard & Poor's, at Standard &
Poor's, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department (e-mail:
▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇), (viii) Moody's, at ▇▇▇▇▇'▇ Investors Service, Inc.,
ABS/RMBS Monitoring Department, 7 World Trade Center, 25th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (e mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇), (ix) the
Swap Counterparty, to Wachovia Bank, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Derivatives
Documentation and (x) as to each of the foregoing, at such other address as
shall be designated by written notice to the other parties.
64
Section 10.04. Assignment.
(a) Notwithstanding anything to the contrary contained herein, except as
provided in the remainder of this Section or as provided in Sections 6.03 and
7.02, this Agreement may not be assigned by the Depositor or the Master Servicer
without the prior written consent of the Trustees and the Holders of Notes
evidencing at least 66 2/3 of the Note Balance of the Controlling Class.
(b) The Depositor hereby acknowledges and consents to the mortgage,
pledge, assignment and grant of a security interest by the Issuer to the
Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders
of all right, title and interest of the Issuer in, to and under the Trust
Property and the assignment of any or all of the Issuer's rights and obligations
hereunder to the Indenture Trustee.
Section 10.05. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
and terms of this Agreement and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions and terms of this
Agreement.
Section 10.06. Further Assurances. The Depositor, the Seller, the Master
Servicer and the Issuer agree to do and perform, from time to time, any and all
acts and to authorize or execute any and all further instruments required or
reasonably requested by the Owner Trustee or the Indenture Trustee more fully to
effect the purposes of this Agreement, including the authorization and execution
of any financing statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 10.07. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Depositor, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
provided in this Agreement are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 10.08. Successors and Assigns; Third-Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
and their respective successors and permitted assigns. The Swap Counterparty,
the Owner Trustee, the Noteholders and the Certificateholders and their
respective successors and permitted assigns are intended third-party
beneficiaries of this Agreement. Except as otherwise provided in this Article,
no other Person shall have any right or obligation hereunder. The parties hereto
hereby acknowledge and consent to the pledge of this Agreement by the Issuer to
the Indenture Trustee for the benefit of the Noteholders pursuant to the
Indenture.
Section 10.09. Actions by Securityholders.
(a) Wherever in this Agreement a provision is made that an action may be
taken or a notice, demand or instruction given by the Noteholders or the
Certificateholders, such action, notice or instruction may be taken or given by
any Noteholder or any Certificateholder, as
65
applicable, unless such provision requires a specific percentage of the
Noteholders or the Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Noteholder or a Certificateholder shall bind such Noteholder
or Certificateholder and every subsequent Holder of the related Note or
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or omitted to be done by
the Owner Trustee, the Indenture Trustee or the Master Servicer in reliance
thereon, whether or not notation of such action is made upon such Note or
Certificate.
Section 10.10. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.11. Headings. The Article and Section headings herein and the
Table of Contents are for convenience of reference only and shall not affect the
meaning or interpretation of the terms or provisions hereof.
SECTION 10.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.13. Nonpetition Covenants.
(a) The Owner Trustee, the Indenture Trustee, the Seller, the Master
Servicer and the Depositor each covenants and agrees that it will not at any
time institute against, or join any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or State bankruptcy or
similar law.
(b) The Owner Trustee, the Indenture Trustee, the Seller, the Master
Servicer and the Issuer each covenants and agrees that it will not at any time
institute against, or join any other Person in instituting against, the
Depositor any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or State bankruptcy or
similar law.
(c) This Section shall survive the resignation or removal of the Owner
Trustee under the Trust Agreement and the Indenture Trustee under the Indenture
and shall survive the termination of the Trust Agreement and the Indenture.
Section 10.14. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything to the contrary contained herein, this
Agreement has been executed by the Owner Trustee not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event shall
the Owner Trustee in its individual capacity
66
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles Six, Seven and Eight of the Trust Agreement.
(b) Notwithstanding anything to the contrary contained herein, this
Agreement has been accepted by the Indenture Trustee, not in its individual
capacity but solely as Indenture Trustee and in no event shall the Indenture
Trustee in its individual capacity have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
Section 10.15. Obligations with Respect to the Swap Counterparty. Any
obligations or duties owed to, or rights of, the Swap Counterparty hereunder,
including the right of the Swap Counterparty to consent to, or receive notice
of, any actions hereunder shall terminate upon payment in full of the Class A-2b
Notes and payment of all amounts owed to the Swap Counterparty pursuant to the
Swap Agreement.
67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers, thereunto duly authorized, as of
the day and year first above written.
WACHOVIA AUTO LOAN OWNER TRUST 2008-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee on behalf of the Issuer
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
WDS RECEIVABLES LLC, as Depositor
By /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION, as Master
Servicer
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
WACHOVIA DEALER SERVICES, INC., as Seller
By /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President, Treasury
Agreed and Accepted:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Sale and Servicing Agreement
SCHEDULE A
LOCATION OF RECEIVABLE FILES
Wachovia Dealer Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wachovia Dealer Services, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SA-1
SCHEDULE B
ITEM 1119 PARTIES
None.
SB-1
SCHEDULE C
SERVICING AND DISCLOSURE ITEMS
SCHEDULE C
PART I - SERVICING CRITERIA (TO BE ADDRESSED IN THE REPORT ON
ASSESSMENT OF COMPLIANCE)
The assessment of compliance to be delivered by the Master Servicer shall
address, at a minimum, the criteria identified below as "Applicable Servicing
Criteria":
--------------------------------------------------------------------------------------------------------------------
Reg AB Reference Servicing Criteria Applicable Servicing Responsible Party
Criteria
--------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are Master Servicer
instituted to monitor any Administrator
performance or other triggers and
events of default in accordance
with the transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing Master Servicer
activities are outsourced to third
parties, policies and procedures
are instituted to monitor the
third party's performance and
compliance with such servicing
activities.
--------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the N/A
transaction agreements to maintain
a back-up Master Servicer for the
Pool Assets are maintained.
--------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and Master Servicer
omissions policy is in effect on
the party participating in the
servicing function throughout the
reporting period in the amount of
coverage required by and otherwise
in accordance with the terms of
the transaction agreements.
--------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on pool assets are Master Servicer
deposited into the appropriate
custodial bank accounts and
related bank clearing accounts no
more than two business days
following receipt, or such other
number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire N/A for Obligor Master Servicer
transfer on behalf of an obligor disbursements.
or to an investor are made only by
authorized personnel.
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees Master Servicer
regarding collections, cash flows
or distributions, and any interest
or other fees charged for such
advances, are made, reviewed and
approved as specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the Master Servicer
transaction, such as cash reserve Indenture Trustee
accounts or accounts established
as a form of over
collateralization, are separately
maintained (e.g., with respect to
commingling of cash) as set forth
in the transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is Administrator
maintained at a federally insured Indenture Trustee
depository institution as set
forth in the transaction
agreements. For purposes of this
criterion, "federally insured
depository institution" with
respect to a foreign financial
institution means a foreign
--------------------------------------------------------------------------------------------------------------------
SC-1
--------------------------------------------------------------------------------------------------------------------
Reg AB Reference Servicing Criteria Applicable Servicing Responsible Party
Criteria
--------------------------------------------------------------------------------------------------------------------
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so N/A
as to prevent unauthorized
access.
--------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a Master Servicer
monthly basis for all asset-backed Indenture Trustee
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30
calendar days after the bank statement
cutoff date, or such other number of
days specified in the transaction
agreements; (C) reviewed and approved
by someone other than the person who
prepared the reconciliation; and (D)
contain explanations for reconciling
items. These reconciling items are
resolved within 90 calendar days of
their original identification, or such
other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those Master Servicer
to be filed with the Commission, are Administrator
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the
terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules
and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of Pool Assets serviced by
the Master Servicer.
--------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are Master Servicer
allocated and remitted in Administrator
accordance with timeframes, Indenture Trustee
distribution priority and other
terms set forth in the transaction
agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor Master Servicer
are posted within two business
days to the Master Servicer's
investor records, or such other
number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per Master Servicer
the investor reports agree with Administrator
cancelled checks, or other form of Indenture Trustee
payment, or custodial bank
statements.
--------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on pool Master Servicer
assets is maintained as required
by the transaction agreements or
related pool asset documents.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Pool assets and related documents Master Servicer
are safeguarded as required by the
transaction agreements
--------------------------------------------------------------------------------------------------------------------
SC-2
--------------------------------------------------------------------------------------------------------------------
Reg AB Reference Servicing Criteria Applicable Servicing Responsible Party
Criteria
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or Master Servicer
substitutions to the asset pool
are made, reviewed and approved in
accordance with any conditions or
requirements in the transaction
agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on pool assets, including Master Servicer
any payoffs, made in accordance
with the related pool asset
documents are posted to the Master
Servicer's obligor records
maintained no more than two
business days after receipt, or
such other number of days
specified in the transaction
agreements, and allocated to
principal, interest or other items
(e.g., escrow) in accordance with
the related pool asset documents.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Master Servicer's records Master Servicer
regarding the pool assets agree
with the Master Servicer's records
with respect to an obligor's
unpaid principal balance.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms Master Servicer
or status of an obligor's pool
assets (e.g., loan modifications
or re-agings) are made, reviewed
and approved by authorized
personnel in accordance with the
transaction agreements and related
pool asset documents.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery Master Servicer
actions (e.g., forbearance plans,
modifications and deeds in lieu of
foreclosure, foreclosures and
repossessions, as applicable) are
initiated, conducted and concluded
in accordance with the timeframes
or other requirements established
by the transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection Master Servicer
efforts are maintained during the
period a pool asset is delinquent
in accordance with the transaction
agreements. Such records are
maintained on at least a monthly
basis, or such other period
specified in the transaction
agreements, and describe the
entity's activities in monitoring
delinquent pool assets including,
for example, phone calls, letters
and payment rescheduling plans in
cases where delinquency is deemed
temporary (e.g., illness or
unemployment).
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or Master Servicer
rates of return for pool assets
with variable rates are computed
based on the related pool asset
documents.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust N/A
for an obligor (such as escrow
accounts): (A) such funds are
analyzed, in accordance with the
obligor's pool asset documents, on
at least an annual basis, or such
other period specified in the
transaction agreements; (B)
interest on such funds is paid, or
credited, to obligors in
accordance with applicable pool
asset documents and state laws;
and (C) such funds are returned to
the obligor within 30
--------------------------------------------------------------------------------------------------------------------
SC-3
--------------------------------------------------------------------------------------------------------------------
Reg AB Reference Servicing Criteria Applicable Servicing Responsible Party
Criteria
--------------------------------------------------------------------------------------------------------------------
calendar days of full repayment of the
related pool assets, or such other
number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an N/A
obligor (such as tax or insurance
payments) are made on or before
the related penalty or expiration
dates, as indicated on the
appropriate bills or notices for
such payments, provided that such
support has been received by the
Master Servicer at least 30
calendar days prior to these
dates, or such other number of
days specified in the transaction
agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in N/A
connection with any payment to be
made on behalf of an obligor are
paid from the Master Servicer's
funds and not charged to the
obligor, unless the late payment
was due to the obligor's error or
omission.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an N/A
obligor are posted within two
business days to the obligor's
records maintained by the Master
Servicer, or such other number of
days specified in the transaction
agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and Master Servicer
uncollectible accounts are
recognized and recorded in
accordance with the transaction
agreements.
--------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other N/A
support, identified in Item
1114(a)(1) through (3) or Item
1115 of Regulation AB, is
maintained as set forth in the
transaction agreements.
--------------------------------------------------------------------------------------------------------------------
SC-4
SCHEDULE C
PART II - FORM 10-D DISCLOSURE ITEMS
----------------------------------------------------------------------------------------------------
FORM 10-D DISCLOSURE ITEMS
----------------------------------------------------------------------------------------------------
Item on Form 10-D Responsible Party
----------------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance
Information
----------------------------------------------------------------------------------------------------
Information included in the Monthly Servicer's Master Servicer
Certificate Administrator
----------------------------------------------------------------------------------------------------
Any information required by 1121 which is NOT Depositor
included on the Monthly Servicer's Certificate
----------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings
o Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
----------------------------------------------------------------------------------------------------
o Issuing Entity (Trust Fund) Depositor
----------------------------------------------------------------------------------------------------
o Sponsor (Seller) Seller (if a party to the Sales and Servicing
Agreement) or Depositor
----------------------------------------------------------------------------------------------------
o Depositor Depositor
----------------------------------------------------------------------------------------------------
o Indenture Trustee Indenture Trustee
----------------------------------------------------------------------------------------------------
o Administrator Administrator
----------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
----------------------------------------------------------------------------------------------------
o Owner Trustee Owner Trustee
----------------------------------------------------------------------------------------------------
o 1110(b) Originator Depositor
----------------------------------------------------------------------------------------------------
o Any 1108(a)(2) Servicer (other than the Depositor
Master Servicer or Administrator)
----------------------------------------------------------------------------------------------------
o Any other party contemplated by Depositor
1100(d)(1)
----------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form
10-Q
With respect to any sale of securities by the
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are otherwise
issued by the issuing entity, whether or not
----------------------------------------------------------------------------------------------------
SC-5
----------------------------------------------------------------------------------------------------
FORM 10-D DISCLOSURE ITEMS
----------------------------------------------------------------------------------------------------
Item on Form 10-D Responsible Party
----------------------------------------------------------------------------------------------------
registered, provide the sales and use of
proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if
securities were not registered.
----------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Administrator
Information from Item 3 of Part II of Form 10-Q
Report the occurrence of any Event of Default
(after expiration of any grace period and
provision of any required notice)
----------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Administrator
Security Holders Indenture Trustee
Information from Item 4 of Part II of Form 10-Q
----------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial
Information*
----------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to
the Item.
----------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider
Information
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information*
----------------------------------------------------------------------------------------------------
o Determining applicable disclosure Depositor
threshold
----------------------------------------------------------------------------------------------------
o Requesting required financial Depositor
information (including any required
accountants' consent to the use thereof)
or effecting incorporation by reference
----------------------------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty
Financial Information*
o Determining current maximum probable Depositor
exposure
----------------------------------------------------------------------------------------------------
SC-6
----------------------------------------------------------------------------------------------------
FORM 10-D DISCLOSURE ITEMS
----------------------------------------------------------------------------------------------------
Item on Form 10-D Responsible Party
----------------------------------------------------------------------------------------------------
o Determining current significance Depositor
percentage
----------------------------------------------------------------------------------------------------
o Requesting required financial Depositor
information (including any required
accountants' consent to the use thereof)
or effecting incorporation by reference
----------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to
the Items.
----------------------------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable Form 8-K
Disclosure item
Disclose any information required to be
reported on Form 8-K during the period covered
by the Form 10-D but not reported
----------------------------------------------------------------------------------------------------
Item 9: Exhibits
----------------------------------------------------------------------------------------------------
Administrator
Monthly Statement to Certificateholders
----------------------------------------------------------------------------------------------------
Exhibits required by Item 601 of Regulation Depositor
S-K, such as material agreements
----------------------------------------------------------------------------------------------------
SC-7
SCHEDULE C
PART III - FORM 10-K DISCLOSURE ITEMS
--------------------------------------------------------------------------------------------------------
FORM 10-K DISCLOSURE ITEMS
--------------------------------------------------------------------------------------------------------
Item on Form 10-K Responsible Party
--------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
--------------------------------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items on Form 8-K
--------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Depositor
Schedules
--------------------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Sale and Servicing Agreement
(as to themselves), (ii) the Depositor as to the
Disclosure per Item 1117 of Reg AB issuing entity, (iii) the Depositor as to the
sponsor, any 1106(b) originator, any 1100(d)(1) party
--------------------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Sale and Servicing Agreement
(as to themselves), (ii) the Depositor as to the
Disclosure per Item 1119 of Reg AB sponsor, originator, significant obligor, enhancement
or support provider
--------------------------------------------------------------------------------------------------------
Additional Item: Depositor/ Master Servicer
Disclosure per Item 1112(b) of Reg AB
--------------------------------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b) and 1115(b) of
Reg AB
--------------------------------------------------------------------------------------------------------
SC-8
SCHEDULE C
PART IV - FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
--------------------------------------------------------------------------------
FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
--------------------------------------------------------------------------------
Item on Form 8-K Responsible Party
--------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive All parties as to themselves
Agreement
Disclosure is required regarding entry into
or amendment of any definitive agreement that
is material to the securitization, even if
depositor is not a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the
prospectus.
--------------------------------------------------------------------------------
Item 1.02- Termination of a Material All parties as to themselves
Definitive Agreement
Disclosure is required regarding termination
of any definitive agreement that is material
to the securitization (other than expiration
in accordance with its terms), even if
depositor is not a party.
Examples: servicing agreement, custodial
agreement.
--------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership Depositor
Disclosure is required regarding the
bankruptcy or receivership, with respect to
any of the following:
--------------------------------------------------------------------------------
o Sponsor (Seller) Depositor/Sponsor (Seller)
--------------------------------------------------------------------------------
o Depositor Depositor
--------------------------------------------------------------------------------
o Master Servicer Master Servicer
--------------------------------------------------------------------------------
o Affiliated Servicer Master Servicer
--------------------------------------------------------------------------------
o Other Servicer servicing 20% or more of Master Servicer
the pool assets at the time of the
--------------------------------------------------------------------------------
SC-9
--------------------------------------------------------------------------------
FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
--------------------------------------------------------------------------------
Item on Form 8-K Responsible Party
--------------------------------------------------------------------------------
report
--------------------------------------------------------------------------------
o Other material servicers Master Servicer
--------------------------------------------------------------------------------
o Indenture Trustee Indenture Trustee
--------------------------------------------------------------------------------
o Administrator Administrator
--------------------------------------------------------------------------------
o Significant Obligor Depositor
--------------------------------------------------------------------------------
o Credit Enhancer (10% or more) Depositor
--------------------------------------------------------------------------------
o Derivative Counterparty Depositor
--------------------------------------------------------------------------------
o Owner Trustee Owner Trustee
--------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate Depositor
or Increase a Direct Financial Obligation or Master Servicer
an Obligation under an Off-Balance Sheet Administrator
Arrangement
Includes an early amortization, performance
trigger or other event, including event of
default, that would materially alter the
payment priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other than
waterfall triggers which are disclosed in the
monthly statements to the certificateholders.
--------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of Administrator
Security Holders Indenture Trustee
Depositor
Disclosure is required of any material
modification to documents defining the rights
of Certificateholders, including the Pooling
and Servicing Agreement.
--------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal
Year
Disclosure is required of any amendment "to
the governing documents of the issuing
entity".
--------------------------------------------------------------------------------
Item 6.01- ABS Informational and Depositor
--------------------------------------------------------------------------------
SC-10
--------------------------------------------------------------------------------
FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
--------------------------------------------------------------------------------
Item on Form 8-K Responsible Party
--------------------------------------------------------------------------------
Computational Material
--------------------------------------------------------------------------------
Item 6.02- Change of Master Servicer or A change of both - Depositor/
Administrator Indenture Trustee
A change of Servicer, Master
Requires disclosure of any removal, Servicer or Administrator -
substitution or addition of any master Master replacement, Servicer/
servicer, affiliated servicer, and other Administrator/Depositor/
servicer servicing 10% or more of pool
assets at time of report, other material
servicers or Indenture Trustee.
--------------------------------------------------------------------------------
Reg AB disclosure about any new servicer or Master Servicer/Depositor
master servicer is also required.
--------------------------------------------------------------------------------
Reg AB disclosure about any new Indenture New Indenture Trustee Trustee
is also required.
--------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or N/A
External Support
Covers termination of any enhancement in
manner other than by its terms, the addition
of an enhancement, or a material change in
the enhancement provided. Applies to external
credit enhancements as well as derivatives.
--------------------------------------------------------------------------------
Reg AB disclosure about any new enhancement Depositor
provider is also required.
--------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Master Servicer
Distribution Indenture Trustee
--------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
If any material pool characteristic differs
by 5% or more at the time of issuance of the
securities from the description in the final
prospectus, provide updated Reg AB disclosure
about the actual asset pool.
--------------------------------------------------------------------------------
SC-11
--------------------------------------------------------------------------------
FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
--------------------------------------------------------------------------------
Item on Form 8-K Responsible Party
--------------------------------------------------------------------------------
If there are any new servicers or originators Depositor
required to be disclosed under Regulation AB
as a result of the foregoing, provide the
information called for in Items 1108 and 1110
respectively.
--------------------------------------------------------------------------------
Item 7.01- Reg FD Disclosure Depositor
--------------------------------------------------------------------------------
Item 8.01- Other Events Depositor
Any event, with respect to which information
is not otherwise called for in Form 8-K, that
the registrant deems of importance to
certificateholders.
--------------------------------------------------------------------------------
Item 9.01- Financial Statements and Exhibits Responsible party, as
applicable, for
reporting/disclosing the
financial statement or exhibit
--------------------------------------------------------------------------------
SC-12
SCHEDULE D
PERFORMANCE CERTIFICATION
(REPORTING SUBCONTRACTOR)
Re: Wachovia Auto Loan Owner Trust 2008-1
The undersigned [Reporting Subcontractor] hereby certifies to the
[_______] and its officers, directors and Affiliates (collectively, the
"Certification Parties") as follows, with the knowledge and intent that the
Certification Parties will rely on this Certification in connection with the
certification concerning the Issuer to be signed by an officer of the Master
Servicer and submitted to the Securities and Exchange Commission pursuant to
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
1. The [Reporting Subcontractor] has reviewed the information and
reports provided by it to the Depositor and the Master Servicer pursuant to
the Agreement with respect to the assessment of the Servicing Criteria under
Section 9.05 of the Agreement (the "Information");
2. Based on the [Reporting Subcontractor]'s knowledge, the Information,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact required in the Information and necessary to
make the statements made, in the light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the
10-K report; and
3. The assessment of the Servicing Criteria required to be provided by
the [Reporting Subcontractor] pursuant to the Agreement, has been provided to
the Depositor and the Master Servicer. Any material instance of noncompliance
with the applicable Servicing Criteria has been disclosed in such report.
Capitalized terms not otherwise defined herein have the meanings
ascribed thereto in the Sale and Servicing Agreement (the "Agreement"), dated
as of January 1, 2008, among Wachovia Auto Loan Owner Trust 2008-1, as issuer,
WDS Receivables LLC, as depositor and Wachovia Bank, National Association, as
master servicer and Wachovia Dealer Services, Inc., as seller.
SD-1
[__________________________, [REPORTING
SUBCONTRACTOR]
By:
--------------------------------------
Name:
Title:
Date: __________________
SD-2
SCHEDULE E
PERFORMANCE CERTIFICATION
(MASTER SERVICER)
Re: Wachovia Auto Loan Owner Trust 2008-1
The undersigned Master Servicer hereby certifies to _______ and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Issuer to be signed by an officer of the Servicer and submitted to the
Securities and Exchange Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
1. I have reviewed:
(i) the servicer compliance statement of the Master Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement");
(ii) the report on assessment of the Master Servicer's compliance
with the servicing criteria set forth in Item 1122(d) of Regulation AB
(the "Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Item 1122 of Regulation AB (the "Servicing
Assessment");
(iii) the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the "Attestation Report"); and
(iv) all servicing reports, officer's certificates and other
information relating to the servicing of the Receivables by the Master
Servicer during 200__ that were delivered by the Master Servicer to the
Indenture Trustee pursuant to the Agreement (collectively, the
"Servicing Information").
2. Based on my knowledge, the Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Servicing Information.
3. Based on my knowledge, all of the Servicing Information required
to be provided by the Master Servicer under the Agreement has been provided to
the Indenture Trustee.
4. I am responsible for reviewing the activities performed by
Wachovia Bank, National Association, as master servicer (the "Master
Servicer") under the Sale and Servicing Agreement (the "Agreement"), dated as
of January 1, 2008, among Wachovia Auto Loan Owner Trust 2008-1, as issuer
(the "Issuer"), WDS Receivables LLC, as depositor, and Wachovia Bank, National
Association, as Master Servicer, and Wachovia Dealer Services, Inc., as
seller, and
SE-1
based on my knowledge and the compliance review conducted in preparing the
Compliance Statement and except as disclosed in the Compliance Statement, the
Servicing Assessment or the Attestation Report, the Servicer has fulfilled its
obligations under the Agreement in all material respects.
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Servicer and by any Reporting Subcontractor
pursuant to the Agreement, have been provided to the Indenture Trustee. Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Capitalized terms not otherwise defined herein have the meanings
ascribed thereto in the Agreement.
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
Title:
Date: __________________
SE-2
EXHIBIT A
REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES
The following representations and warranties shall be made in respect of
the Receivables being transferred to the Issuer on the Closing Date as of the
Cutoff Date.
(i) Characteristics of Receivables. Each Receivable (A) was originated
in the United States by the Seller or a Dealer located in the United States
for the retail sale of a Financed Vehicle in the ordinary course of the
Seller's or 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, if not originated by the Seller, 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 address 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 such
Receivable.
(ii) Schedule of Receivables. The information set forth in the Schedule
of Receivables shall be true and correct in all material respects as of the
close of business on the Cutoff Date, and the Receivables were selected (a)
from those motor vehicle receivables of the Seller which met the selection
criteria set forth in this Agreement and (b) using selection procedures,
believed by the Seller, not to be adverse to the Noteholders.
(iii) Compliance with Law. Each Receivable complied at the time it was
originated or made, and at the Closing Date complies, in all material respects
with all requirements of applicable federal, State and, to the best knowledge
of the Seller, local laws, rulings and regulations thereunder (including usury
laws).
(iv) Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the related Obligor,
enforceable by the holder thereof in accordance with its terms, except as (A)
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such
A-1
enforceability is considered in a proceeding in equity or at law and (B) such
Receivable may be modified by the application after the Cutoff Date of the
Servicemembers Civil Relief Act or by any similar applicable State law.
(v) No Government Obligor. No Receivable is due from the United States
or any State or any agency, department, subdivision or instrumentality
thereof.
(vi) Obligor Bankruptcy. To the best of the Seller's knowledge, at the
Cutoff Date, no Obligor is the subject of a bankruptcy proceeding.
(vii) Security Interest in Financed Vehicles. Immediately prior to the
transfer of the Receivables by the Seller to the Depositor, each Receivable
was secured by a valid, binding and enforceable first priority perfected
security interest in favor of the Seller in the related Financed Vehicle,
which security interest has been validly assigned by the Seller to the
Depositor. The Master Servicer has received, or will receive within 180 days
after the Closing Date, the original certificate of title for each Financed
Vehicle or notice from the applicable State entity issuing such certificate of
title, that such certificate of title is being processed (other than any
Financed Vehicle that is subject to a certificate of title statute or motor
vehicle registration law that does not require that the original certificate
of title for such Financed Vehicle be delivered to the Seller).
(viii) Receivables in Force. No Receivable shall have been satisfied,
subordinated or rescinded, nor shall any Financed Vehicle have been released
in whole or in part from the Lien granted by the related Receivable.
(ix) No Waivers. No provision of a Receivable shall have been waived in
such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect thereto.
(x) No Amendments. No Receivable shall have been amended or modified
in such a manner that the total number of Monthly Payments has been increased
or decreased or that the related Amount Financed has been increased or
decreased or that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect thereto.
(xi) No Defenses. No Receivable is subject to any right of rescission,
setoff, counterclaim or defense, including the defense of usury, and the
operation of any of the terms of any Receivable, or the exercise of any right
thereunder, will not render such Receivable unenforceable in whole or in part
or subject to any right of rescission, setoff, counterclaim or defense,
including the defense of usury, and the Seller has not received written notice
of the assertion with respect to any Receivable of any such right of
rescission, setoff, counterclaim or defense.
(xii) No Liens. No Liens or claims shall have been filed, including
Liens for work, labor or materials or for unpaid local, State or federal taxes
relating to any Financed Vehicle that shall be prior to, or equal or
coordinate with, the security interest in such Financed Vehicle granted by the
related Receivable.
A-2
(xiii) No Defaults; Repossessions. Except for payment defaults that, as
of the Cutoff Date, have been continuing for a period of not more than 30
days, no default, breach or violation under the terms of any Receivable,
permitting acceleration, shall have occurred as of the Cutoff Date and no
continuing condition that with notice or the lapse of time or both would
constitute a default, breach or violation under the terms of any Receivable,
permitting acceleration, shall have arisen; and the Seller shall not have
waived any of the foregoing except as otherwise permitted hereunder. On or
prior to the Cutoff Date, no Financed Vehicle has been repossessed.
(xiv) Insurance. Each Receivable requires the related Obligor to obtain
physical damage insurance covering the related Financed Vehicle and to
maintain such insurance.
(xv) Title. It is the intention of the Seller that the transfers and
assignments herein contemplated constitute a sale of the Receivables from the
Seller to the Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the appointment
of a receiver or conservator for the Seller under any receivership, bankruptcy
law, insolvency or banking law; no Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Purchaser, and
no provision of a Receivable shall have been waived, except as provided in
clause (ix) above; immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each Receivable free
and clear of all Liens and rights of others, except for Liens that shall be
released on or before the Closing Date; immediately upon the transfer and
assignment thereof, the Purchaser shall have good and marketable title to each
Receivable, free and clear of all Liens and rights of others; and the transfer
and assignment herein contemplated has been perfected under the UCC.
(xvi) Security Interest Matters. This Agreement creates a valid and
continuing "security interest" (as defined in the UCC) in the Receivables in
favor of the Depositor, which security interest is prior to all other Liens
and is enforceable as such as against creditors of and purchasers from the
Seller. With respect to each Receivable, the Seller has taken all steps
necessary to perfect its security interest against the related Obligor in the
related Financed Vehicle. The Receivables constitute "tangible chattel paper"
(as defined in the UCC). The Seller has caused or will cause prior to the
Closing Date the filing of all appropriate financing statements in the proper
filing offices in the appropriate jurisdictions under applicable law necessary
to perfect the security interest in the Receivables granted to the Depositor
under the Receivables Purchase Agreement. Other than the security interest
granted to the Depositor under the Receivables Purchase Agreement, the Seller
has not pledged, assigned, sold, granted a security interest in or otherwise
conveyed any of the Receivables. The Seller has not authorized the filing of
and is not aware of any financing statements against the Seller that include a
description of collateral covering the Receivables other than any financing
statement relating to the security interest granted to the Depositor under the
Receivables Purchase Agreement or that has been terminated. The motor vehicle
retail installment sale contracts and installment loans that constitute or
evidence the Receivables do not have any marks or notations indicating that
they have been pledged, assigned or otherwise conveyed to any Person other
than the Depositor, the Issuer or the Indenture Trustee. The Seller is not
aware of any judgment or tax lien filings against the Seller.
(xvii) Financing Statements. All financing statements filed or to be
filed against the Seller in favor of the Issuer (as assignee of the Depositor)
contain a statement substantially to the
A-3
following effect: "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the Issuer".
All financing statements filed or to be filed against the Seller in favor of
the Indenture Trustee (as assignee of the Issuer) contain a statement
substantially to the following effect: "A purchase of or security interest in
any collateral described in this financing statement will violate the rights
of the Indenture Trustee".
(xviii) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer,
assignment and conveyance of such Receivable under this Agreement or the Sale
and Servicing Agreement or the pledge of such Receivables hereunder,
thereunder or under the Indenture is unlawful, void or voidable or under which
such Receivable would be rendered void or voidable as a result of any such
sale, transfer, assignment, conveyance or pledge. The Seller has not entered
into any agreement with any account debtor that prohibits, restricts or
conditions the assignment of the Receivables.
(xix) All Filings Made. All filings (including UCC filings) necessary in
any jurisdiction to give the Purchaser, the Issuer and the Indenture Trustee a
first priority security interest in the Receivables shall have been made or
will be made on the Closing Date.
(xx) One Original. There shall be only one original executed copy of
each Receivable.
(xxi) Location of Receivable Files. Each Receivable File shall be kept
at one of the locations listed in Schedule A.
(xxii) Custodial Agreements. Immediately prior to the transfer of the
Receivables by the Seller to the Purchaser, the Purchaser, an Affiliate of the
Purchaser or an agent on behalf of the Purchaser had possession of the
Receivable Files and there were no, and there will not be, any custodial
agreements in effect affecting the right or ability of the Purchaser to make,
or cause to be made, any delivery required under this Agreement.
(xxiii) Bulk Transfer Laws. The transfer of the Receivables and the
Receivable Files by the Seller to the Purchaser pursuant to this Agreement is
not subject to the bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction.
(xxiv) Principal Balance. Each Receivable had an original Principal
Balance of not more than $100,000.00 and a remaining Principal Balance, as of
the Cutoff Date, of not less than $500.00.
(xxv) New and Used Vehicles. As of the Cutoff Date, approximately 29.14%
of the Pool Balance was secured by new Financed Vehicles and approximately
70.86% of the Pool Balance was secured by used Financed Vehicles.
(xxvi) Original Term to Maturity. Each Receivable had an original term
to maturity of not more than 84 months and not less than 12 months and a
remaining term to maturity as of the Cutoff Date, of not more than 84 months
and not less than three months.
(xxvii) Weighted Average Remaining Term to Maturity. As of the Cutoff
Date, the weighted average remaining term to maturity of the Receivables owned
by the Seller was approximately 59.77 months.
A-4
(xxviii) Annual Percentage Rate. Each Receivable has a Contract Rate of
at least 4.000% and not more than 30.000% and the weighted average Contract
Rate of the Receivables as of the Cutoff Date was approximately 11.67%.
(xxix) Simple Interest Method. All payments with respect to the
Receivables have been allocated consistently in accordance with the Simple
Interest Method.
(xxx) Marking Records. As of the Closing Date, the Seller will have
caused its computer and accounting records relating to each Receivable to be
marked to show that the Receivables have been sold to the Purchaser by the
Seller and transferred and assigned by the Purchaser to the Issuer in
accordance with the terms of the Sale and Servicing Agreement and pledged by
the Issuer to the Indenture Trustee in accordance with the terms of the
Indenture.
(xxxi) Chattel Paper. Each Receivable constitutes "tangible chattel
paper" within the meaning of the UCC as in effect in the State of origination.
(xxxii) Final Scheduled Distribution Date. No Receivable has a final
scheduled payment date later than six months prior to the Class E Final
Scheduled Distribution Date.
(xxxiii) No Fleet Sales. None of the Receivables have been included in a
"fleet" sale (i.e., a sale to any single Obligor of more than seven Financed
Vehicles).
(xxxiv) No Fraud or Misrepresentation. Each Receivable that was
originated by a Dealer and was sold by the Dealer to the Seller, to the best
of the Seller's knowledge, was so originated and sold without fraud or
misrepresentation on the part of such Dealer in either case.
(xxxv) No Impairment. The Seller has not done anything to convey any
right to any Person that would result in such Person having a right to
payments due under a Receivable or otherwise to impair the rights of the
Depositor in any Receivable or the proceeds thereof.
(xxxvi) Servicing. Each Receivable has been serviced in conformity with
all applicable laws, rules and regulation and in conformity with the Seller's
policies and procedures which are consistent with customary, prudent industry
standards.
(xxxvii) No Consent. To the best of the Seller's knowledge, no notice to
or consent from any Obligor is necessary to effect the acquisition of the
Receivables by the Purchaser or the Issuer or the pledge of the Receivables by
the Issuer to the Indenture Trustee.
(xxxviii) FICO Score. The weighted average FICO score of the Receivables
as of the Cutoff Date (based on the FICO score recorded at the respective
dates of origination of such Receivables) was approximately 649.
(xxxix) Obligor Mailing Address. No more than 28.08% of the Receivables
as of the Cutoff Date had an Obligor mailing address in the State of
California.
A-5
EXHIBIT B
FORM OF DISTRIBUTION STATEMENT
Wachovia Auto Loan Owner Trust 2008-1
1. Collection Period ___________
2. Determination Date ___________
3. Distribution Date ___________
4. Priority Principal Distributable Amount $__________
5. Secondary Principal Distributable Amount $__________
6. Third Principal Distributable Amount $__________
7. Fourth Principal Distributable Amount $__________
8. Fifth Principal Distributable Amount $__________
9. Regular Principal Distributable Amount $__________
10. LIBOR: __________%
11. Interest Distributable Amount $__________
a. Class A-1 Notes: $ per $1,000 original principal amount
b. Class A-2a Notes: $ per $1,000 original principal amount
c. Class A-2b Notes: $ per $1,000 original principal amount
d. Class A-3 Notes: $ per $1,000 original principal amount
e. Class A-4 Notes: $ per $1,000 original principal amount
f. Class B Notes: $ per $1,000 original principal amount
g. Class C Notes: $ per $1,000 original principal amount
h. Class D Notes: $ per $1,000 original principal amount
i. Class E Notes: $ per $1,000 original principal amount
12. Available Collections $__________
13. Available Funds $__________
14. Pool Balance as of the close of business on $__________
the last day of the Collection Period (per
$1,000 original principal amount)
15. Note Factor ___________
a. Class A-1 Notes: ___________
b. Class A-2a Notes: ___________
c. Class A-2b Notes: ___________
d. Class A-3 Notes: ___________
e. Class A-4 Notes: ___________
f. Class B Notes: ___________
g. Class C Notes: ___________
h. Class D Notes: ___________
i. Class E Notes: ___________
B-1
16. Note Balance $__________
a. Class A-1 Notes: $__________
b. Class A-2a Notes: $__________
c. Class A-2b Notes: $__________
d. Class A-3 Notes: $__________
e. Class A-4 Notes: $__________
f. Class B Notes: $__________
g. Class C Notes: $__________
h. Class D Notes: $__________
i. Class E Notes: $__________
17. Reserve Fund Amount $__________
Change from immediately preceding Distribution Date $__________
18. Reserve Fund Required Amount $__________
19. The amount by which the Reserve Fund Required Amount
exceeds the Reserve Fund Amount $__________
20. Reserve Fund Draw Amount $__________
21. Total Servicing Fee $__________
a. Monthly Servicing Fee $__________
b. Amount unpaid from prior months $__________
22. Total Trustee Fees $__________
a. Monthly Trustee Fees $__________
b. Amount unpaid from prior months $__________
23. Required Payment Amount $__________
24. The amount by which the Required Payment Amount
exceeds the sum of Available Collections plus the
Reserve Fund Draw Amount $__________
25. Aggregate Purchase Amount of Purchased Receivables $__________
26. Aggregate Amount of Defaulted Receivables $__________
27. Net Losses on the Receivables $__________
28. Cumulative Net Losses ($) $__________
29. Cumulative Net Loss Percentage __________%
30. Overcollateralization Target Amount $__________
31. Overcollateralization Amount $__________
32. Amount by which the Pool Balance Exceeds the Note
Balance $__________
33. Aggregate Principal Balance of Receivables $__________
a. 30 to 59 days past due (No. of Receivables ____) $__________
b. 60 to 89 days past due (No. of Receivables ____) $__________
B-2
c. 90 or more days past due (No. of Receivables ____) $__________
34. Excess Collections $__________
35. Nonrecoverable Advances $__________
36. Amount of Net Swap Payments $__________
37. Amount of Net Swap Receipts $__________
38. Has a termination event or event of default occurred
under the Swap Agreement? Y N
a. Senior Swap Termination Payments $__________
b. Subordinated Swap Termination Payments $__________
39. Instructions to the Indenture Trustee
a. From the Collection Account:
1. To the Master Servicer $__________
2. To the Trustees $__________
3. To the Swap Counterparty
A. As a Net Swap Payment $__________
B. As a Senior Swap Termination Payment $__________
C. As a Subordinated Swap Termination Payment $__________
4. To the Note Payment Account $__________
5. To the Reserve Fund $__________
6. To the Certificate Payment Account $__________
b. From the Note Payment Account:
1. To the Class A-1 Noteholders $__________
2. To the Class A-2a Noteholders $__________
3. To the Class A-2b Noteholders $__________
4. To the Class A-3 Noteholders $__________
5. To the Class A-4 Noteholders $__________
6. To the Class B Noteholders $__________
7. To the Class C Noteholders $__________
8. To the Class D Noteholders $__________
9. To the Class E Noteholders $__________
c. From the Certificate Payment Account:
1. To the Certificateholders $__________
B-3
d. From the Reserve Fund:
1. To the Collection Account $__________
2. To the Swap Counterparty $__________
3. To the Certificateholders $__________
B-4
EXHIBIT C
FORM OF MASTER SERVICER'S CERTIFICATE
Wachovia Auto Loan Owner Trust 2008-1
1. Collection Period ___________
2. Determination Date ___________
3. Distribution Date ___________
4. Priority Principal Distributable Amount $__________
5. Secondary Principal Distributable Amount $__________
6. Third Principal Distributable Amount $__________
7. Fourth Principal Distributable Amount $__________
8. Fifth Principal Distributable Amount $__________
9. Regular Principal Distributable Amount $__________
10. LIBOR __________%
11. Interest Distributable Amount $__________
a. Class A-1 Notes: $ per $1,000 original principal amount
b. Class A-2a Notes: $ per $1,000 original principal amount
c. Class A-2b Notes: $ per $1,000 original principal amount
d. Class A-3 Notes: $ per $1,000 original principal amount
e. Class A-4 Notes: $ per $1,000 original principal amount
f. Class B Notes: $ per $1,000 original principal amount
g. Class C Notes: $ per $1,000 original principal amount
h. Class D Notes: $ per $1,000 original principal amount
i. Class E Notes: $ per $1,000 original principal amount
12. Available Collections $__________
13. Available Funds $__________
14. Pool Balance as of the close of business on the last $__________
day of the Collection Period (per $1,000 original
principal amount)
15. Note Factor ___________
a. Class A-1 Notes: ___________
b. Class A-2a Notes: ___________
c. Class A-2b Notes: ___________
d. Class A-3 Notes: ___________
e. Class A-4 Notes: ___________
f. Class B Notes: ___________
g. Class C Notes: ___________
h. Class D Notes: ___________
C-1
i. Class E Notes: ___________
16. Note Balance ___________
a. Class A-1 Notes: ___________
b. Class A-2a Notes: ___________
c. Class A-2b Notes: ___________
d. Class A-3 Notes: ___________
e. Class A-4 Notes: ___________
f. Class B Notes: ___________
g. Class C Notes: ___________
h. Class D Notes: ___________
i. Class E Notes: ___________
17. Reserve Fund Amount $__________
Change from immediately preceding Distribution Date $__________
18. Reserve Fund Required Amount $__________
19. The amount by which the Reserve Fund Required Amount
exceeds the Reserve Fund Amount $__________
20. Reserve Fund Draw Amount $__________
21. Total Servicing Fee $__________
a. Monthly Servicing Fee $__________
b. Amount unpaid from prior months $__________
22. Total Trustee Fees $__________
a. Monthly Trustee Fees $__________
b. Amount unpaid from prior months $__________
23. Required Payment Amount $__________
24. The amount by which the Required Payment Amount
exceeds the sum of Available Collections plus the
Reserve Fund Draw Amount $__________
25. Aggregate Purchase Amount of Purchased Receivables $__________
26. Aggregate Amount of Defaulted Receivables $__________
27. Net Losses on the Receivables $__________
28. Cumulative Net Losses ($) $__________
29. Cumulative Net Loss Percentage __________%
30. Overcollateralization Target Amount $__________
31. Overcollateralization Amount $__________
32. Amount by which the Pool Balance Exceeds the Note
Balance $__________
33. Aggregate Principal Balance of Receivables $__________
C-2
a. 30 to 59 days past due (No. of Receivables ____) $__________
b. 60 to 89 days past due (No. of Receivables ____) $__________
c. 90 or more days past due (No. of Receivables ____) $__________
34. Excess Collections $__________
35. Nonrecoverable Advances $__________
36. Amount of Net Swap Payments $__________
37. Amount of Net Swap Receipts $__________
38. Has a termination event or event of default occurred
under the Swap Agreement? Y / N
a. Senior Swap Termination Payment $__________
b. Subordinated Swap Termination Payment $__________
38. Instructions to the Indenture Trustee
a. From the Collection Account:
1. To the Master Servicer $__________
2. To the Trustees $__________
3. To the Swap Counterparty
A. As a Net Swap Payment $__________
B. As a Senior Swap Termination Payment $__________
C. As a Subordinated Swap Termination Payment $__________
4. To the Note Payment Account $__________
5. To the Reserve Fund $__________
6. To the Certificate Payment Account $__________
b. From the Note Payment Account:
1. To the Class A-1 Noteholders $__________
2. To the Class A-2a Noteholders $__________
3. To the Class A-2b Noteholders $__________
4. To the Class A-3 Noteholders $__________
5. To the Class A-4 Noteholders $__________
6. To the Class B Noteholders $__________
7. To the Class C Noteholders $__________
8. To the Class D Noteholders $__________
9. To the Class E Noteholders $__________
c. From the Certificate Payment Account:
C-3
1. To the Certificateholders $__________
d. From the Reserve Fund:
1. To the Collection Account $__________
2. To the Swap Counterparty $__________
3. To the Certificateholders $__________
C-4