WACHOVIA DEALER SERVICES, INC., as Seller, and WDS RECEIVABLES LLC, as Purchaser RECEIVABLES PURCHASE AGREEMENT Dated as of June 1, 2007
Exhibit
99.3
WACHOVIA
DEALER SERVICES, INC.,
as
Seller,
and
WDS
RECEIVABLES LLC,
as
Purchaser
_______________________________________
Dated
as
of June 1, 2007
_______________________________________
TABLE
OF
CONTENTS
Page
|
ARTICLE
ONE
|
|
|
DEFINITIONS
|
|
|
Section
1.01. Definitions
|
1
|
|
Section
1.02. Other Definitional Provisions
|
4
|
|
ARTICLE
TWO
|
|
|
CONVEYANCE
OF RECEIVABLES
|
|
|
Section
2.01. Sale and Conveyance of Receivables
|
5
|
|
Section
2.02. Receivables Purchase Price; Payments on the
Receivables
|
6
|
|
Section
2.03. Transfer of Receivables
|
6
|
|
Section
2.04. Examination of Receivable Files
|
7
|
|
ARTICLE
THREE
|
|
|
REPRESENTATIONS
AND WARRANTIES
|
|
|
Section
3.01. Representations and Warranties of the
Purchaser
|
8
|
|
Section
3.02. Representations and Warranties of the
Seller
|
9
|
|
Section
3.03. Representations and Warranties as to the
Receivables
|
10
|
|
ARTICLE
FOUR
|
|
|
CONDITIONS
|
|
|
Section
4.01. Conditions to Obligation of the Purchaser
|
12
|
|
Section
4.02. Conditions to Obligation of the Seller
|
12
|
|
ARTICLE
FIVE
|
|
|
COVENANTS
OF THE SELLER
|
|
|
Section
5.01. Protection of Right, Title and Interest in, to and Under
the Receivables
|
13
|
|
Section
5.02. Security Interests
|
14
|
|
Section
5.03. Delivery of Payments
|
14
|
|
Section
5.04. No Impairment
|
14
|
|
Section
5.05. Costs and Expenses
|
15
|
|
Section
5.06. Sale
|
15
|
|
Section
5.07. Hold Harmless
|
15
|
i
Page
|
ARTICLE
SIX
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
6.01. Amendment
|
16
|
|
Section
6.02. Termination
|
16
|
|
Section
6.03. GOVERNING LAW
|
16
|
|
Section
6.04. Notices
|
16
|
|
Section
6.05. Severability of Provisions
|
16
|
|
Section
6.06. Further Assurances
|
17
|
|
Section
6.07. No Waiver; Cumulative Remedies
|
17
|
|
Section
6.08. Counterparts
|
17
|
|
Section
6.09. Third-Party Beneficiaries
|
17
|
|
Section
6.10. Headings
|
17
|
|
Section
6.11. Representations, Warranties and Agreements to
Survive
|
17
|
|
Section
6.12. No Proceedings
|
17
|
|
SCHEDULES
|
|
|
Schedule A
– Schedule of Receivables
|
SA-1
|
|
Schedule B
– Location of Receivable Files
|
SB-1
|
|
EXHIBITS
|
|
|
Exhibit A
– Representations and Warranties as to the Receivables
|
A-1
|
|
Exhibit B
– Form of First-Tier Assignment
|
B-1
|
ii
This
Receivables Purchase Agreement, dated as of June 1, 2007, is between Wachovia
Dealer Services, Inc., a California corporation (“Wachovia Dealer Services”), as
seller (the “Seller”), and WDS Receivables LLC, a Nevada
limited liability company (“WDS Receivables”), as purchaser (in such capacity,
the “Purchaser”).
WHEREAS,
in the regular course of its business, the Seller purchases and originates
motor
vehicle retail installment sale contracts and installment loans secured by
new
and used motor vehicles (the “Receivables”);
WHEREAS,
the Seller intends to convey all of its right, title and interest in and to
certain Receivables to the Purchaser on the Closing Date, and the Purchaser
shall convey all of its right, title and interest in and to the Receivables
to
Wachovia Auto Loan Owner Trust 2007-1 (the “Issuer”) pursuant to the sale and
servicing agreement, dated as of June 1, 2007, among the Issuer, WDS
Receivables, Wachovia Dealer Services and Wachovia Bank, National Association
(“Wachovia Bank”); and
WHEREAS,
the Seller and the Purchaser wish to set forth the terms pursuant to which
the
Receivables are to be sold by the Seller to the Purchaser.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and other good and valuable consideration, the receipt and adequacy
of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
ONE
DEFINITIONS
Section
1.01. Definitions. Whenever used in this Agreement,
the following words and phrases shall have the following meanings:
“Agreement”
means this Receivables Purchase Agreement.
“Basic
Documents” has the meaning specified in the Sale and Servicing
Agreement.
“Business
Day” has the meaning specified in the Sale and Servicing
Agreement.
“Certificate”
has the meaning specified in the Trust Agreement.
“Closing
Date” has the meaning specified in the Indenture.
“Collection
Period” has the meaning specified in the Indenture.
“Controlling
Class” has the meaning specified in the Indenture.
“Cutoff
Date” has the meaning specified in the Sale and Servicing
Agreement.
“Dealer
Recourse” has the meaning specified in the Sale and Servicing
Agreement.
1
“Deposit
Date” has the meaning specified in Sale and Servicing
Agreement.
“Depositor”
has the meaning specified in the Trust Agreement.
“Financed
Vehicle” has the meaning specified in the Sale and Servicing
Agreement.
“First-Tier
Assignment” means the First-Tier Assignment, in substantially the form of
Exhibit B hereto.
“Holder”
has the meaning specified in the Indenture.
“Indenture”
means the indenture, dated as of June 1, 2007, between the Issuer and the
Indenture Trustee.
“Indenture
Trustee” has the meaning specified in the Indenture.
“Issuer”
has the meaning specified in the recitals.
“Lien”
has the meaning specified in the Sale and Servicing Agreement.
“Master
Servicer” has the meaning specified in the Sale and Servicing
Agreement.
“Net
Liquidation Proceeds” has the meaning specified in the Sale and Servicing
Agreement.
“Note
Balance” has the meaning specified in the Indenture.
“Noteholders”
has the meaning specified in the Indenture.
“Notes”
has the meaning specified in the Indenture.
“Obligor”
has the meaning specified in the Sale and Servicing Agreement.
“Officer’s
Certificate” has the meaning specified in the Sale and Servicing
Agreement
“Opinion
of Counsel” has the meaning specified in Sale and Servicing
Agreement.
“Outstanding”
has the meaning specified in the Indenture.
“Owner
Trustee” has the meaning specified in the Trust Agreement.
“Principal
Balance” has the meaning specified in the Sale and Servicing
Agreement.
“Purchase
Amount” has the meaning specified in Sale and Servicing
Agreement.
“Purchaser”
means WDS Receivables, in its capacity as purchaser of the Receivables under
this Agreement, and its successors in such capacity.
2
“Receivable
Files” has the meaning specified in the Sale and Servicing
Agreement.
“Receivables
Purchase Price” means $2,067,717,510.19.
“Recoveries”
has the meaning specified in the Sale and Servicing Agreement.
“Reserve
Fund” has the meaning specified in the Sale and Servicing
Agreement.
“Reserve
Fund Deposit” has the meaning specified in Sale and Servicing
Agreement.
“Sale
and Servicing Agreement” means the sale and servicing agreement, dated as of
June 1, 2007, among the Issuer, the Depositor, the Seller and the Master
Servicer.
“Schedule
of Receivables” means the schedule of Receivables attached as
Schedule A.
“Securities”
means the Notes and the Certificates.
“Seller”
means Wachovia Dealer Services, in its capacity as seller of the Receivables
under this Agreement, and its successors in such capacity.
“State”
has the meaning specified in the Indenture.
“Swap
Agreement” has the meaning specified in the Indenture.
“Swap
Counterparty” has the meaning specified in the Indenture.
“Trust
Agreement” means the amended and restated trust agreement, dated as of June
1, 2007, between the Depositor and the Owner Trustee.
“Trustee”
means either the Owner Trustee or the Indenture Trustee, as the context
requires.
“UCC”
has the meaning specified in the Indenture.
“United
States” has the meaning specified in the Indenture.
“Wachovia
Bank” has the meaning specified in the preamble.
“Wachovia
Dealer Services” has the meaning specified in the
preamble.
“WDS
Receivables” has the meaning specified in the preamble.
3
Section
1.02. Other Definitional Provisions.
(a) Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Indenture or the Sale and Servicing Agreement, as the
case may be.
(b) With
respect to all terms in this Agreement, unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time to time in the United
States; (iii) “or” is not exclusive; (iv) “including” means including
without limitation; (v) words in the singular include the plural and words
in the plural include the singular; (vi) any agreement, document,
instrument or statute defined or referred to herein or in any instrument or
certificate delivered in connection herewith means such agreement, instrument
or
statute as from time to time amended, modified or supplemented and includes
(in
the case of agreements or instruments) references to all attachments thereto
and
instruments incorporated therein; (vii) references to a Person are also to
its successors and permitted assigns; (viii) the words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement; (ix) Section, subsection, Schedule and Exhibit references
contained in this Agreement are references to Sections, subsections, Schedules
and Exhibits in or to this Agreement unless otherwise specified;
(x) references to “writing” include printing, typing, lithography and other
means of reproducing words in a visible form; and (xi) the term “proceeds”
has the meaning set forth in the applicable UCC.
4
ARTICLE
TWO
CONVEYANCE
OF RECEIVABLES
Section
2.01. Sale and Conveyance of Receivables. On
the Closing Date, subject to the terms and conditions of this Agreement, the
Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Seller, the Receivables set forth in the Schedule of Receivables,
and
the other property relating thereto (as described below).
(a) Subject
to satisfaction of the conditions set forth in Section 4.01(a), on the
Closing Date, and simultaneously with the transactions to be consummated
pursuant to the Indenture, the Sale and Servicing Agreement, the Trust Agreement
and the Swap Agreement, the Seller shall, pursuant to the First-Tier Assignment,
sell, transfer, assign and otherwise convey to the Purchaser, and the Purchaser
shall purchase from the Seller, without recourse (subject to the Seller’s
obligations hereunder), all of the right, title and interest of the Seller
in,
to and under, whether now owned or existing or hereafter acquired or arising,
in, to and under the following:
(i) the
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 3.03(c)) 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 Seller 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 the Financed Vehicles
and any proceeds 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
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 Seller; and
(vii) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing, and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all accounts, accounts
receivable, general intangibles, chattel paper, documents, money, investment
property, deposit accounts, letters of credit, letter of credit rights,
insurance proceeds, condemnation awards, notes, drafts, acceptances, rights
to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of
or
are included in the proceeds of any of the foregoing.
5
(b) In
connection with the foregoing conveyance, the Seller further agrees, at its
own
expense, on or prior to the Closing Date to (i) annotate and indicate in
its books, records and computer files that the Receivables have been sold and
transferred to the Purchaser pursuant to this Agreement, (ii) deliver to
the Purchaser a computer file or printed or microfiche list of the Schedule
of
Receivables containing a true and complete list of the related Receivables,
identified by account number and by the Principal Balance as of the Cutoff
Date,
which file or list shall be marked as Schedule A and is hereby incorporated
into and made a part of this Agreement and (iii) deliver or cause to be
delivered the Receivable Files to or upon the order of the
Purchaser.
(c) The
parties hereto intend that the conveyance of Receivables and related property
hereunder be a sale and not a loan. In the event that the conveyance
hereunder is for any reason not considered a sale, including in the event of
an
insolvency proceeding with respect to the Seller or any of the Seller’s
properties, the Seller hereby grants to the Purchaser a first priority security
interest in all of the Seller’s right, title and interest in, to and under the
Receivables, and all other property conveyed hereunder and all proceeds of
the
foregoing. The parties intend that this Agreement constitute a
security agreement under applicable law. Such grant is made to secure
the payment of all amounts payable hereunder, including the Receivables Purchase
Price. If such conveyance is for any reason considered to be a loan
and not a sale, the Seller consents to the Purchaser transferring such security
interest in favor of the Indenture Trustee and transferring the obligation
secured thereby to the Indenture Trustee.
Section
2.02. Receivables Purchase Price; Payments on the
Receivables.
(a) On
the Closing Date, in exchange for the Receivables and other assets described
in
Section 2.01(a), the Purchaser shall pay the Seller the Receivables
Purchase Price in immediately available funds. The Purchaser, as set
forth in the Sale and Servicing Agreement, shall deposit, from funds it receives
from the sale of the Class A Notes, Class B Notes, Class C Notes and Class
D
Notes, the Reserve Fund Deposit into the Reserve Fund, which amount
shall be an asset of the Issuer. WDS Receivables shall receive,
and shall be the holder of, the Class E Notes and the Certificates.
(b) The
Purchaser shall be entitled to, and shall convey such right to the Issuer
pursuant to the Sale and Servicing Agreement, all amounts due and collected
on
or in respect of the Receivables received after the Cutoff Date.
Section
2.03. Transfer of Receivables. Pursuant to
the Sale and Servicing Agreement, the Purchaser will assign all of its right,
title and interest in, to and under the Receivables and other assets described
in Section 2.01(a) to the Issuer. The parties hereto acknowledge
that the Issuer will pledge its rights in, to and under the Receivables and
other assets described in Section 2.01(a) to the Indenture Trustee pursuant
to the Indenture. The Purchaser shall have the right to assign its
interest under this Agreement as may be required to effect the purposes of
the
Sale and Servicing Agreement, without the consent of the Seller, and the Issuer
as assignee shall succeed to the rights hereunder of the Purchaser.
6
Section
2.04. Examination of Receivable Files. The Seller
will make the Receivable Files available to the Purchaser or its agent for
examination at the Seller’s offices or such other location as otherwise shall be
agreed upon by the Purchaser and the Seller.
7
ARTICLE
THREE
REPRESENTATIONS
AND WARRANTIES
Section
3.01. Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants to
the Seller as of the date of this Agreement and the Closing Date
that:
(a) Organization
and Good Standing. The Purchaser has been duly organized and is
validly existing as a limited liability company in good standing under the
laws
of the State of 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 purchase the Receivables.
(b) Due
Qualification. The Purchaser is duly qualified to do business as
a foreign limited liability company in good standing and has obtained all
necessary licenses and approvals in each jurisdiction in which the failure
to so
qualify or to obtain such licenses and approvals would, in the reasonable
judgment of the Purchaser, materially and adversely affect the performance
by
the Purchaser of its obligations under, or the validity or enforceability of,
this Agreement.
(c) Power
and Authority. The Purchaser has the power and authority to
execute and deliver, and perform its obligations under, this Agreement and
each
other Basic Document to which it is a party. The Purchaser has full
power and authority to sell, transfer, assign and otherwise convey the property
listed in Section 2.01(a) that it is acquiring from the Seller and shall
sell and assign to and deposit with the Issuer such property and shall duly
authorize such sale and assignment by all necessary limited liability company
action; and the execution, delivery and performance of this Agreement and each
other Basic Document to which the Purchaser is a party has been duly authorized
by the Purchaser by all necessary limited liability company action.
(d) No
Violation. The execution, delivery and performance by the
Purchaser of this Agreement and of the purchase of the Receivables and the
consummation of the transactions contemplated hereby and by each other Basic
Document to which it is a party and the fulfillment of the terms hereof and
thereof will not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time or both)
a default under, the certificate of formation or limited liability company
agreement of the Purchaser, nor conflict with or violate any of the material
terms or provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any indenture, agreement or other instrument to which
the Purchaser is a party or by which it shall be bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than Liens
created by this Agreement and the other Basic Documents); nor violate any law
or, to the Purchaser’s knowledge, any order, rule or regulation applicable to
the Purchaser of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties, which breach, default, conflict, Lien
or
violation would have a material adverse effect on the earnings, business affairs
or business prospects of the Purchaser or on the ability of the Purchaser to
perform its obligations under this Agreement.
8
(e) No
Proceedings. There are no proceedings or investigations pending,
or to the Purchaser’s knowledge, threatened against the Purchaser, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its properties:
(i) asserting the invalidity of this Agreement or any other Basic Document
to which it is a party, (ii) seeking to prevent the issuance and delivery
of the Securities, the sale of the Notes or the consummation of any of the
transactions contemplated by this Agreement or any other Basic Document to
which
the Purchaser is a party or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity or enforceability of, this Agreement or
any
other Basic Document to which it is a party.
(f) Principal
Executive Office. The chief executive office of the Purchaser is
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
Section
3.02. Representations and Warranties of the
Seller. The Seller hereby represents and warrants to the
Purchaser as of the date of this Agreement and the Closing Date,
that:
(a) Organization
and Good Standing. The Seller has been duly organized and is
validly existing as a corporation under the laws of the State of California,
and
has the power to own its assets and to transact the business in which it is
currently engaged. The Seller is duly authorized to transact business
and has obtained all necessary licenses and approvals, and is in good standing
in each jurisdiction in which the character of the business transacted by it
or
any properties owned or leased by it requires such authorization.
(b) Power
and Authority. The Seller has the power and authority to execute
and deliver and perform its obligations under this Agreement and each other
Basic Document to which the Seller is a party, and the execution, delivery
and
performance of this Agreement and each other Basic Document to which the Seller
is a party has been duly authorized by the Seller. When executed and
delivered, this Agreement and the other Basic Documents to which the Seller
is a
party will constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except that such
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer and other similar laws
relating to or affecting creditors generally, and to general equitable
principles (regardless of whether considered in a proceeding in equity or at
law), including concepts of commercial reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief.
(c) No
Violation. The execution, delivery and performance by the Seller
of this Agreement and the sale of the Receivables, the consummation of the
transactions contemplated hereby and by each other Basic Document to which
it is
a party and the fulfillment of the terms hereof and thereof will not conflict
with, result in a breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, its articles
of incorporation or bylaws, nor conflict with or violate any of the material
terms or provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any indenture, agreement or other instrument to which
it is a party or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than this Agreement);
nor
violate any law or, to its knowledge, any order, rule or regulation applicable
to it of any court or of any federal or State regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over it or
its
properties, which breach, default, conflict, Lien or violation would have a
material adverse effect on the Seller’s earnings, business affairs or business
prospects or on the ability of the Seller to perform its obligations under
this
Agreement.
9
(d) No
Proceedings. There are no proceedings or investigations pending
or, to the Seller’s knowledge, threatened against the Seller before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties (i) asserting the
invalidity of this Agreement or any other Basic Document to which the Seller
is
a party, (ii) seeking to prevent the issuance and delivery of the
Securities, the sale of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document to which the Seller
is a party or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement or any other Basic
Document to which the Seller is a party.
(e) Principal
Executive Office. The chief executive office of the Seller is at
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(f) No
Consents. The Seller is not required to obtain the consent of any
other party or any consent, license, approval, registration, authorization,
or
declaration of or with any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is
a
party that has not already been obtained.
(g) Other
Information. No certificate of an officer, statement or document
furnished in writing or report delivered pursuant to the terms hereof by the
Seller contains any untrue statement of a material fact or omits to state any
material fact necessary to make the certificate, statement, document or report
not misleading.
(h) Solvency. The
sale of the Receivables to the Purchaser is not being made with any intent
to
hinder, delay or defraud any of its creditors. The Seller is not
insolvent, nor will the Seller be made insolvent by the transfer of the
Receivables, nor does the Seller anticipate any pending insolvency.
Section
3.03. Representations and Warranties as to the
Receivables.
(a) Eligibility
of Receivables. The Seller makes the representations and
warranties set forth in Exhibit A with respect to the Receivables, on which
the Purchaser relies in accepting the Receivables and in selling, transferring,
assigning and otherwise conveying the Receivables to the Issuer under the Sale
and Servicing Agreement and on which the Issuer relies in pledging the same
to
the Indenture Trustee pursuant to the Indenture. Except as otherwise
provided, such representations and warranties speak as of the date of execution
and delivery of this Agreement and the Closing Date, but shall survive the
sale,
transfer, assignment and conveyance of the Receivables to the Purchaser, the
subsequent sale, transfer and assignment of the Receivables by the Purchaser
to
the Issuer pursuant to the Sale and Servicing Agreement and the pledge of the
Receivables by the Issuer to the Indenture Trustee pursuant to the
Indenture.
10
(b) Notice
of Breach. The Purchaser, the Seller, the Issuer, the Owner
Trustee or the Indenture Trustee, as the case may be, shall inform the other
parties promptly, in writing, upon discovery of any breach of the Seller’s
representations and warranties pursuant to Section 3.03(a) which materially
and adversely affects the interests of the Noteholders in any
Receivable.
(c) Repurchase
of Receivables. In the event of a breach of any
representation or warranty set forth pursuant to Section 3.03(a) (including
by means of a subsequently discovered breach of any local law or ruling or
regulation thereunder) which materially and adversely affects the interests
of the Purchaser, the Issuer or the Noteholders in any Receivable that 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 Master Servicer, the Purchaser,
the Issuer or any Noteholder of such breach, the Seller shall repurchase such
Receivable from the Issuer as of the close of business on the last day of such
Collection Period, by depositing an amount equal to the Purchase Amount into
the
Collection Account on the related Deposit Date. This repurchase
obligation shall apply to all representations and warranties contained in
Section 3.03(a) except as otherwise noted whether or not the Seller or the
Purchaser has knowledge of the breach at the time of the breach or at the time
the representations and warranties were made. In consideration of the
repurchase of any such Receivable the Seller shall remit an amount equal to
the
Purchase Amount in respect of such Receivable to the Issuer in the manner set
forth in the Sale and Servicing Agreement. In the event that, as of
the date of execution and delivery of this Agreement, any Liens or claims shall
have been filed, including Liens for work, labor or materials relating to a
Financed Vehicle, that shall be prior to, or equal or coordinate with, the
Lien
granted by the related Receivable (whether or not the Seller has knowledge
thereof), which Liens or claims shall not have been satisfied or otherwise
released in full as of the Closing Date, the Seller shall repurchase such
Receivable on the terms and in the manner specified above. Upon any
such repurchase, the Purchaser shall, without further action, be deemed to
transfer, assign, set-over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Purchaser
in, to and under such repurchased Receivable, all other related assets described
in Section 2.01(a) and all monies due or to become due with respect thereto
and all proceeds thereof. The Purchaser, the Issuer, the Owner
Trustee or the Indenture Trustee, as applicable, shall execute such documents
and instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the Seller to effect the conveyance of such
Receivable pursuant to this Section. The sole remedy of the
Purchaser, the Issuer, the Trustees or the Noteholders with respect to a breach
of the Seller’s representations and warranties pursuant to Section 3.03(a)
or with respect to the existence of any such Liens or claims shall be to require
the Seller to repurchase the related Receivables pursuant to this
Section.
11
ARTICLE
FOUR
CONDITIONS
Section
4.01. Conditions to Obligation of the
Purchaser. The obligation of the Purchaser to purchase the
Receivables from the Seller on the Closing Date is subject to the satisfaction
of the following conditions:
(a) Representations
and Warranties True. The representations and warranties of the
Seller contained herein and in the other Basic Documents shall be true and
correct on the Closing Date with the same effect as if made on the Closing
Date,
and each of the Seller and the Master Servicer shall have performed all
obligations to be performed by it hereunder and under the other Basic Documents
on or before the Closing Date.
(b) Computer
Files Marked. The Seller shall, at its own expense, on or before
the Closing Date, indicate in its computer files that the Receivables have
been
sold to the Purchaser pursuant to this Agreement and deliver to the Purchaser
an
Officer’s Certificate confirming that its computer files have been marked
pursuant to this subsection, and shall deliver to the Purchaser the Schedule
of
Receivables, certified by an authorized officer of the Seller to be true,
correct and complete.
(c) Execution
of Basic Documents. The Basic Documents shall have been executed
and delivered by the parties thereto.
(d) First
Tier Assignment. The Purchaser shall have received the First Tier
Assignment, dated as of the Closing Date.
(e) Other
Transactions. The transactions contemplated by the Basic
Documents shall be consummated on the Closing Date.
Section
4.02. Conditions to Obligation of the
Seller. The obligation of the Seller to sell the
Receivables to the Purchaser on the Closing Date is subject to the satisfaction
of the following conditions:
(a) Representations
and Warranties True. The representations and warranties of the
Purchaser contained herein and in the other Basic Documents shall be true and
correct on the Closing Date, with the same effect as if then made, and the
Purchaser shall have performed all obligations to be performed by it hereunder
and under the other Basic Documents on or before the Closing Date.
(b) Payment
of Receivables Purchase Price. In
consideration of the sale of the Receivables from the Seller to the Purchaser
as
provided in Section 2.01, on the Closing Date the Purchaser shall have paid
to the Seller an aggregate amount equal to the Receivables Purchase
Price.
12
ARTICLE
FIVE
COVENANTS
OF THE SELLER
Section
5.01. Protection of Right, Title and Interest in, to and Under the
Receivables.
(a) The
Seller, at its expense, shall cause this Agreement and all financing statements
and continuation statements and any other necessary documents covering the
Purchaser’s right, title and interest in, to and under the Receivables and other
property conveyed by the Seller to the Purchaser hereunder to be promptly
authorized, recorded, registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as may
be
required by law fully to preserve and protect the right, title and interest
of
the Purchaser hereunder to the Receivables and such other
property. The Seller shall deliver to the Purchaser file-stamped
copies of, or filing receipts for, any document recorded, registered or filed
as
provided above, as soon as available following such recording, registration
or
filing. The Purchaser shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this
subsection.
(b) Within
30 days after the Seller makes any change in its name, identity or
organizational structure which would make any financing statement or
continuation statement filed in accordance with this Agreement seriously
misleading within the meaning of the UCC as in effect in the applicable State,
the Seller shall give the Purchaser notice of any such change and within 30
days
after such change shall authorize, execute and file such financing statements
or
amendments as may be necessary to continue the perfection of the Purchaser’s
security interest in the Receivables and the proceeds thereof.
(c) The
Seller shall give the Purchaser written notice within 60 days of any relocation
of any office from which the Seller keeps records concerning the Receivables
or
of its principal executive office or its jurisdiction of organization and
whether, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing
or
continuation statement or of any new financing statement and within 60 days
after such relocation shall authorize, execute and file such financing
statements or amendments as may be necessary to continue the perfection of
the
interest of the Purchaser in the Receivables and the proceeds
thereof. The Seller shall at all times maintain its jurisdiction of
organization, its principal place of business, its chief executive office and
the location of the office where the Receivable Files and any accounts and
records relating to the Receivables are kept within the United
States.
(d) The
Seller 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.
(e) The
Seller shall maintain its computer systems so that, from and after the time
of
the transfer of the Receivables to the Purchaser pursuant to this Agreement,
the
Seller’s master computer records (including any back-up archives) that refer to
a Receivable shall indicate clearly and unambiguously that such Receivable
is
owned by the Purchaser (or, upon transfer of the Receivables to the Issuer,
by
the Issuer). Indication of the Purchaser’s ownership of a Receivable
shall be deleted from or modified on the Seller’s computer systems when, and
only when, such Receivable shall have been paid in full or repurchased by the
Seller.
13
(f) If
at any time the Seller 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 Seller
shall give to such prospective purchaser, lender or other transferee computer
tapes, compact disks, records or print-outs (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 Purchaser (or, upon transfer of the Receivables to the Issuer,
the Issuer), unless such Receivable has been paid in full or repurchased by
the
Seller.
(g) The
Seller shall permit the Purchaser and its agents at any time during normal
business hours to inspect, audit and make copies of and abstracts from the
Seller’s records regarding any Receivable, upon reasonable prior
notice.
(h) If
the Seller has repurchased one or more Receivables from the Purchaser or the
Issuer pursuant to Section 3.03(c), the Seller shall, upon request, furnish
to the Purchaser, within ten Business Days, a list of all Receivables (by
Receivable number and name of Obligor) then owned by the Purchaser or the
Issuer, together with a reconciliation of such list to the Schedule of
Receivables.
Section
5.02. Security Interests. Except for the
conveyances hereunder, the Seller covenants that it will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any Receivable, whether now existing or hereafter
created, or any interest therein; the Seller will immediately notify the
Purchaser of the existence of any Lien on any Receivable and, in the event
that
the interests of the Noteholders in such Receivable are materially and adversely
affected, such Receivable shall be repurchased from the Purchaser by the Seller
in the manner and with the effect specified in Section 3.03(c), and the
Seller shall defend the right, title and interest of the Purchaser and its
assigns in, to and under the Receivables, whether now existing or hereafter
created, against all claims of third parties claiming through or under the
Seller; provided, however, that nothing in this subsection shall prevent or
be
deemed to prohibit the Seller from suffering to exist upon a Receivable any
Lien
for municipal or other local taxes if such taxes shall not at the time be due
and payable or if the Seller shall currently be contesting the validity of
such
taxes in good faith by appropriate proceedings and shall have set aside on
its
books adequate reserves with respect thereto.
Section
5.03. Delivery of Payments. The Seller covenants
and agrees to deliver in kind upon receipt to the Master Servicer under the
Sale
and Servicing Agreement all payments received by or on behalf of the Seller
in
respect of the Receivables as soon as practicable after receipt thereof by
the
Seller.
Section
5.04. No Impairment. The Seller covenants that it
shall take no action, nor omit to take any action, which would impair the rights
of the Purchaser, the Issuer or the Noteholders in any Receivable, nor shall
it,
except as otherwise provided in this Agreement or the Sale and Servicing
Agreement, reschedule, revise or defer payments due on any
Receivable.
14
Section
5.05. Costs and Expenses. The Seller shall pay all
reasonable costs and expenses incurred in connection with the perfection of
the
Purchaser’s right, title and interest in, to and under the
Receivables.
Section
5.06. Sale. The Seller agrees to treat the
conveyances hereunder for all purposes (including financial accounting purposes)
as an absolute transfer on all relevant books, records, financial statements
and
related documents.
Section
5.07. Hold Harmless. The Seller shall protect,
defend, indemnify and hold the Purchaser and the Issuer and their respective
assigns and their attorneys, accountants, employees, officers and directors
harmless from and against all losses, costs, liabilities, claims, damages and
expenses of every kind and character, as incurred, resulting from or relating
to
or arising out of (i) the inaccuracy, nonfulfillment or breach of any
representation, warranty, covenant or agreement made by the Seller in this
Agreement, (ii) any legal action, including any counterclaim, that has
either been settled by the litigants (which settlement, if the Seller is not
a
party thereto shall be with the consent of the Seller) or has proceeded to
judgment by a court of competent jurisdiction, in either case to the extent
it
is based upon alleged facts that, if true, would constitute a breach of any
representation, warranty, covenant or agreement made by the Seller in this
Agreement, (iii) any actions or omissions of the Seller or any employee or
agent of the Seller occurring prior to the Closing Date with respect to any
Receivable or the related Financed Vehicle or (iv) any failure of a
Receivable to be originated in compliance with all requirements of
law. These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
15
ARTICLE
SIX
MISCELLANEOUS
PROVISIONS
Section
6.01. Amendment.
(a) This
Agreement may be amended from time to time by a written amendment duly executed
and delivered by the Purchaser and the Seller, without the consent of any
Noteholder, to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or to add any other
provision with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
Sale and Servicing Agreement; provided, however, that any such amendment shall
not, as evidenced by an Opinion of Counsel to the Seller delivered to the
Indenture Trustee, adversely affect in any material respect the interests of
any
Noteholder.
(b) This
Agreement may also be amended from time to time for any other purpose by a
written amendment duly executed and delivered by the Seller and by the
Purchaser; provided, however, that any such amendment that materially adversely
affects the interests of the Noteholders under the Indenture, the Sale and
Servicing Agreement or the Trust Agreement must be consented to by the Holders
of Notes evidencing not less than 66⅔% of the Note Balance of the Controlling
Class of Notes (or if the Notes are no longer Outstanding, holders of not less
than 51% of the aggregate Certificate Percentage Interests of the Certificates
then outstanding). Promptly after the execution of any such
amendment, the Seller shall furnish written notification of the substance of
such amendment to the Owner Trustee, the Indenture Trustee and the Rating
Agencies.
Section
6.02. Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the indemnity obligations of the Seller as provided herein, upon
the
termination of the Issuer as provided in the Trust Agreement.
Section
6.03. 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
6.04. Notices. All demands, notices and
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered at or sent by telecopier, overnight courier
or mailed by registered mail, return receipt requested, in the case of the
(i) Purchaser, to WDS Receivables LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ and (ii) Seller, to Wachovia Dealer Services,
Inc., ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or, as to either of such Persons,
at
such other address as shall be designated by such Person in a written notice
to
the other Persons.
Section
6.05. Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this Agreement shall
for any reason whatsoever be 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.
16
Section
6.06. Further Assurances. The Seller and the
Purchaser agree to do and perform, from time to time, any and all acts and
to
execute any and all further instruments required or reasonably requested by
the
other party hereto or by the Issuer or the Indenture Trustee more fully to
effect the purposes of this Agreement, including the execution of any financing
statements, amendments, continuation statements or releases relating to the
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
Section
6.07. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Purchaser, the Issuer,
the Indenture Trustee, the Noteholders or the Seller, 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 herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section
6.08. Counterparts. This Agreement may be executed
in two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section
6.09. Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties
hereto. Each of the Issuer, the Indenture Trustee, the Owner Trustee,
the Swap Counterparty and the Noteholders shall be deemed to be a third-party
beneficiary of this Agreement. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation
hereunder.
Section
6.10. Headings. The Article and Section
headings and the Table of Contents herein are for purposes of reference only
and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section
6.11. Representations, Warranties and Agreements to
Survive. The respective agreements, representations, warranties and
other statements by the Seller and by the Purchaser set forth in or made
pursuant to this Agreement shall remain in full force and effect and will
survive the closing hereunder of the transactions contemplated hereby and shall
inure to the benefit of the Purchaser, the Trustees and the
Noteholders.
Section
6.12. No Proceedings. So long as this Agreement is in
effect, and for one year plus one day following its termination, the Seller
agrees that it will not file any involuntary petition or otherwise institute
any
bankruptcy, reorganization arrangement, insolvency or liquidation proceeding
or
other proceedings under any federal or State bankruptcy law or similar law
against the Purchaser or the Issuer.
17
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
DEALER SERVICES, INC.,
as Seller
|
|||
|
|
By:
|
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | |||
| Title: | |||
|
WDS
RECEIVABLES LLC,
as Purchaser
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: | |||
| Title: | |||
18
SCHEDULE A
SCHEDULE
OF RECEIVABLES
[Original
on file at Master Servicer’s office]
SA-1
SCHEDULE
B
LOCATION
OF RECEIVABLE FILES
Wachovia
Dealer Services, Inc.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wachovia
Dealer Services, Inc.
▇▇▇▇
▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
SB-1
EXHIBIT A
REPRESENTATIONS
AND WARRANTIES AS TO THE RECEIVABLES
See
Exhibit A to Sale and Servicing Agreement
A-1
EXHIBIT B
FORM
OF
FIRST-TIER ASSIGNMENT
For
value
received, in accordance with the receivables purchase agreement, dated as of
June 1, 2007 (the “Receivables Purchase Agreement”), between Wachovia Dealer
Services, Inc. (the “Seller”) and WDS Receivables LLC (the “Purchaser”), the
Seller does hereby irrevocably sell, transfer, assign and otherwise convey
unto
the Purchaser, without recourse (subject to the obligations of the Seller herein
and in the Receivables Purchase Agreement), all right, title and interest of
the
Seller in, to and under, whether now owned or existing or hereafter acquired
or
arising, in, to and under the following:
(i) the
Receivables listed on Schedule A hereto (the “Receivables”) and all amounts
due and received on or in respect of the Receivables (including proceeds of
the
repurchase of Receivables by the Seller pursuant to the Receivables Purchase
Agreement) 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 Seller in such Financed
Vehicles;
(iii) all
proceeds from claims on or refunds of premiums of any physical damage or theft
insurance policies and extended warranties covering the Financed Vehicles and
any proceeds 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
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 Seller; and
(vii) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing, and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all accounts, accounts
receivable, general intangibles, chattel paper, documents, money, investment
property, deposit accounts, letters of credit, letter of credit rights,
insurance proceeds, condemnation awards, notes, drafts, acceptances, rights
to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of
or
are included in the proceeds of any of the foregoing.
B-1
In
the
event that the foregoing sale, transfer, assignment and conveyance is deemed
to
be a pledge, the Seller hereby grants to the Purchaser a first priority security
interest in all of the Seller’s right to and interest in the Receivables and
other property described in clauses (i) through (vii) above to secure
a loan deemed to have been made by the Purchaser to the Seller in an amount
equal to the sum of the initial principal amount of the Notes plus accrued
interest thereon.
THIS
FIRST-TIER ASSIGNMENT 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 OF
THE
SELLER UNDER THIS FIRST TIER ASSIGNMENT SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
This
First-Tier Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Receivables Purchase Agreement and is to be governed by the Receivables Purchase
Agreement.
Capitalized
terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Receivables Purchase
Agreement.
IN
WITNESS WHEREOF, the undersigned has caused this First Tier Assignment to be
duly executed as of the day and year first written above.
|
WACHOVIA
DEALER SERVICES, INC.
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
B-2