WACHOVIA AUTO LOAN OWNER TRUST 2007-1, as Issuer, WDS RECEIVABLES LLC, as Depositor, WACHOVIA DEALER SERVICES, INC., as Seller and WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer SALE AND SERVICING AGREEMENT Dated as of June 1, 2007
Exhibit
99.1
as
Issuer,
WDS
RECEIVABLES LLC,
as
Depositor,
WACHOVIA
DEALER SERVICES, INC.,
as
Seller
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Master
Servicer
_____________________________________
Dated
as
of June 1, 2007
_____________________________________
TABLE
OF
CONTENTS
Page
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
|
24
|
|
Section
3.02. Subservicers.
|
25
|
|
Section
3.03. Collection of Receivable Payments; Modification of
Receivables
|
26
|
|
Section
3.04. Realization Upon Receivables.
|
27
|
|
Section
3.05. Maintenance of Physical Damage Insurance Policies
|
28
|
|
Section
3.06. Maintenance of Security Interests in Financed
Vehicles
|
28
|
|
Section
3.07. Covenants of Master Servicer
|
28
|
|
Section
3.08. Purchase of Receivables Upon Breach
|
29
|
|
Section
3.09. Servicing Compensation; Payment of Certain Expenses by Master
Servicer
|
29
|
|
Section
3.10. Master Servicer’s Certificate
|
29
|
|
Section
3.11. Annual Statement as to Compliance; Notice of Servicer Termination
Events.
|
29
|
|
Section
3.12. Annual Accountants’ Report.
|
30
|
|
Section
3.13. Access to Certain Documentation and Information Regarding
Receivables
|
31
|
i
Page
|
Section
3.14. Reports to the Commission
|
31
|
|
Section
3.15. Reports to Rating Agencies
|
31
|
|
Section
3.16. Maintenance of the Swap Agreement
|
31
|
ARTICLE
FOUR
DISTRIBUTIONS;
RESERVE FUND; STATEMENTS TO SECURITYHOLDERS
|
Section
4.01. Establishment of Accounts.
|
32
|
|
Section
4.02. Reserve Fund.
|
33
|
|
Section
4.03. The Collateral Support Account
|
35
|
|
Section
4.04. Monthly Remittance Condition.
|
35
|
|
Section
4.05. Collections
|
36
|
|
Section
4.06. Application of Collections
|
36
|
|
Section
4.07. Advances.
|
36
|
|
Section
4.08. Additional Deposits.
|
37
|
|
Section
4.09. Determination Date Calculations; Application of Available
Funds.
|
37
|
|
Section
4.10. Statements to Securityholders.
|
39
|
ARTICLE
FIVE
THE
DEPOSITOR
|
Section
5.01. Representations and Warranties of Depositor
|
40
|
|
Section
5.02. Liability of Depositor; Indemnities.
|
41
|
|
Section
5.03. Merger, Consolidation or Assumption of the Obligations of
Depositor;
Certain Limitations.
|
42
|
|
Section
5.04. Limitation on Liability of Depositor and Others
|
45
|
|
Section
5.05. Depositor Not to Resign
|
45
|
|
Section
5.06. Depositor May Own Securities
|
45
|
ARTICLE
SIX
THE
MASTER SERVICER
|
Section
6.01. Representations and Warranties of Master Servicer
|
47
|
|
Section
6.02. Liability of Master Servicer; Indemnities
|
48
|
|
Section
6.03. Merger, Consolidation or Assumption of the Obligations of
Master
Servicer
|
50
|
|
Section
6.04. Limitation on Liability of Master Servicer and
Others.
|
50
|
|
Section
6.05. Wachovia Bank Not to Resign as Master Servicer
|
51
|
|
Section
6.06. Master Servicer May Own Securities
|
51
|
ii
Page
ARTICLE
SEVEN
SERVICER
TERMINATION EVENTS
|
Section
7.01. Servicer Termination Events
|
52
|
|
Section
7.02. Appointment of Successor Master Servicer
|
54
|
|
Section
7.03. Effect of Servicing Transfer.
|
54
|
|
Section
7.04. Notification to Noteholders, Swap Counterparty, Certificateholders
and Rating Agencies
|
55
|
|
Section
7.05. Waiver of Past Servicer Termination Events
|
55
|
|
Section
7.06. Repayment of Advances
|
55
|
ARTICLE
EIGHT
TERMINATION
|
Section
8.01. Optional Purchase of All Receivables.
|
56
|
ARTICLE
NINE
EXCHANGE
ACT REPORTING
|
Section
9.01. Further Assurances
|
57
|
|
Section
9.02. Form 10-D Filings
|
57
|
|
Section
9.03. Form 8-K Filings
|
57
|
|
Section
9.04. Form 10-K Filings
|
58
|
|
Section
9.05. Report on Assessment of Compliance and Attestation
|
58
|
|
Section
9.06. Back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
|
59
|
|
Section
9.07. Use of Subcontractors.
|
59
|
|
Section
9.08. Representations and Warranties
|
60
|
|
Section
9.09. Indemnification.
|
60
|
ARTICLE
TEN
MISCELLANEOUS
|
Section
10.01. Amendment.
|
62
|
|
Section
10.02. Protection of Title to Issuer.
|
63
|
|
Section
10.03. Notices
|
65
|
|
Section
10.04. Assignment.
|
66
|
|
Section
10.05. Severability
|
66
|
|
Section
10.06. Further Assurances
|
66
|
|
Section
10.07. No Waiver; Cumulative Remedies
|
66
|
iii
Page
|
Section
10.08. Successors and Assigns; Third-Party Beneficiaries
|
66
|
|
Section
10.09. Actions by Securityholders.
|
66
|
|
Section
10.10. Separate Counterparts
|
67
|
|
Section
10.11. Headings
|
67
|
|
Section
10.12. GOVERNING LAW
|
67
|
|
Section
10.13. Nonpetition Covenants.
|
67
|
|
Section
10.14. Limitation of Liability of Owner Trustee and Indenture
Trustee.
|
67
|
|
Section
10.15. Obligations with Respect to the Swap Counterparty
|
68
|
|
|
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
|
iv
This
Sale
and Servicing Agreement, dated as of June 1, 2007, 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 2007-1, 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 June 1, 2007,
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 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.
1
“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. § 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.
2
“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” means, with respect to a Certificate, the percentage
specified on such Certificate as the Certificate Percentage Interest, which
percentage represents the beneficial interest of the holder of such Certificate
in the Issuer. The initial Certificate Percentage Interest held by
the Depositor shall be 100%.
“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.
“Certificateholder”
has the meaning specified in the Trust Agreement.
“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-3 Notes” has the meaning specified in the Indenture.
“Class
A-3a Notes” has the meaning specified in the
Indenture.
“Class
A-3b 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).
3
“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 June 1, 2007, 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 June 2, 2007, 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 $2,000,000,001.50.
“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.
4
“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 July 17, 2007.
“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;
5
(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 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.
6
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 Administration Agreement.
“Exchange
Act Reports” shall mean 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.
7
“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
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 June 1, 2007, 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, $2,000,000,000 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 with normal servicing procedures,
after reimbursement to the Master Servicer for expenses recoverable under the
related insurance policy.
8
“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.
11
“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 repurchased 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 by the Master Servicer pursuant to
Section 3.08 or 8.01.
“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
June 1, 2007, 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. §§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.
12
“Reportable
Event” shall mean 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)(xiv).
“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 $5,000,000.
“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.
13
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
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”
shall mean 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 June
1, 2007, between the Depositor and the Owner Trustee.
15
“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).
“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.
16
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 the purchase of Receivables by the Master
Servicer pursuant to Section 3.08 or 8.01) 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 Depositor;
(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
17
(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, 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 any Lien of any
Person. 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.
19
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
20
(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.
(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.
21
(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
22
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.
23
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 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.
24
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 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.
25
(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 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.
26
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, including bringing suit in
its
name or the names of the Indenture Trustee, the Securityholders or any of
them.
27
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.
28
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 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 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.
29
(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.
30
(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 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-3b 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.
31
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 2007-1 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 2007-1 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 2007-1 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 2007-1 Certificate Payment Account” (the
“Certificate Payment Account”). The Certificate Payment Account shall
be held in trust for the benefit of the Certificateholders. The
Certificate Payment Account shall be under the sole dominion and 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.
32
(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 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.
33
(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.
34
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 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, 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 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 Class or a Responsible Officer of such Trustee has actual knowledge
of such event or circumstance.
35
(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.
36
(b) Notwithstanding
the provisions of Section 4.07, 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 (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
Purchased Receivables pursuant to Section 2.04, (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, (B) the amount required upon the optional purchase of
all Receivables by the Master Servicer pursuant to Section 8.01 and (C) 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;
37
(vi) any
Senior Swap Termination Payments;
(vii) the
Priority Principal Distributable Amount;
(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.
38
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.
39
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.
40
(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 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.
41
(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 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.
42
(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;
43
(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);
44
(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
45
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.
46
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.
47
(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.
48
(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.
49
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 (A) 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 (B) 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.
50
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.
51
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
52
(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.
53
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 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.
54
(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 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.
55
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 and the Reserve Fund. 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, no later
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.
56
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 (a) 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 (b) 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 such Person),
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 such Person) 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.
57
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 later than February 1 of each year,
commencing in 2008, 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 2008, 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 2008:
(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, without
limitation 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).
58
(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
information pursuant to this Section 9.05 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 2008, 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(a),
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.
59
Section
9.08. Representations
and Warranties. The Indenture Trustee represents
that:
(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.
60
(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
9.09, or shall 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.
61
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
66⅔% 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 to each Rating Agency and the Swap Counterparty and a draft of such
proposed amendment to the Swap Counterparty.
62
(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.
63
(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).
64
(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 Ratings
Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed
Surveillance Department (e-mail: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇),
(viii) Moody’s, at ▇▇▇▇▇’▇ Investors Service, Inc., ABS Monitoring Department,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (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.
65
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
66⅔% 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 applicable, unless such provision requires a specific
percentage of the Noteholders or the Certificateholders.
66
(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 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.
67
(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-3b Notes and payment of
all
amounts owed to the Swap Counterparty pursuant to the Swap
Agreement.
68
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.
|
|
By:
|
WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as
Owner
Trustee on behalf of the Issuer
|
|
|
|
By:
|
/s/ J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title : Financial Serices Officer | |||
|
WDS
RECEIVABLES LLC, as Depositor
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: | |||
| Title : | |||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, as Master Servicer
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title : Vice President | |||
|
WACHOVIA
DEALER SERVICES, INC., as Seller
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | |||
| Title : | |||
Agreed
and Accepted:
U.S.
BANK
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Vice
President
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 Criteria
|
Responsible
Party
|
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Master
Servicer
Administrator
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
Master
Servicer
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
Master
Servicer for the Pool Assets are maintained.
|
N/A
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and 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.
|
Master
Servicer
|
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on pool assets are 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.
|
Master
Servicer
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
N/A
for Obligor disbursements.
|
Master
Servicer
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees 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.
|
Master
Servicer
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve 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.
|
Master
Servicer
Indenture
Trustee
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured 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 financial
institution that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
|
Administrator
Indenture
Trustee
|
SC-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Responsible
Party
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
N/A
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed 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.
|
Master
Servicer
Indenture
Trustee
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
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.
|
Master
Servicer
Administrator
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
Master
Servicer
Administrator
Indenture
Trustee
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Master
Servicer’s investor records, or such other number of days specified in the
transaction agreements.
|
Master
Servicer
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
Master
Servicer
Administrator
Indenture
Trustee
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
Master
Servicer
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
Master
Servicer
|
SC-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Responsible
Party
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
Master
Servicer
|
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including 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.
|
Master
Servicer
|
|
|
1122(d)(4)(v)
|
The
Master Servicer’s records regarding the pool assets agree with the Master
Servicer’s records with respect to an obligor’s unpaid principal
balance.
|
Master
Servicer
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms 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.
|
Master
Servicer
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery 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.
|
Master
Servicer
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection 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).
|
Master
Servicer
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
Master
Servicer
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust 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 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
N/A
|
SC-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Responsible
Party
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an 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.
|
N/A
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in 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.
|
N/A
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an 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.
|
N/A
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Master
Servicer
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
N/A
|
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 Certificate
|
Master
Servicer
Administrator
|
|
Any
information required by 1121 which is NOT included on the Monthly
Servicer’s Certificate
|
Depositor
|
|
Item
2: Legal Proceedings
· 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:
|
|
|
· Issuing
Entity (Trust Fund)
|
Depositor
|
|
· Sponsor
(Seller)
|
Seller
(if a party to the Sales and Servicing Agreement) or
Depositor
|
|
· Depositor
|
Depositor
|
|
· Indenture
Trustee
|
Indenture
Trustee
|
|
· Administrator
|
Administrator
|
|
· Master
Servicer
|
Master
Servicer
|
|
· Owner
Trustee
|
Owner
Trustee
|
|
· 1110(b)
Originator
|
Depositor
|
|
· Any
1108(a)(2) Servicer (other than the Master Servicer or
Administrator)
|
Depositor
|
|
· Any
other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
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 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.
|
Depositor
|
SC-5
|
FORM
10-D DISCLOSURE ITEMS
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Item
4: Defaults Upon Senior Securities
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)
|
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Administrator
Indenture
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) –Significant Obligor Financial
Information*
|
Depositor
|
|
*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*
|
|
|
· Determining
applicable disclosure threshold
|
Depositor
|
|
· Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) – Derivative Counterparty Financial Information*
|
|
|
· Determining
current maximum probable exposure
|
Depositor
|
SC-6
|
FORM
10-D DISCLOSURE ITEMS
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
· Determining
current significance percentage
|
Depositor
|
|
· Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*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
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
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 Schedules
|
Depositor
|
|
Additional
Item:
Disclosure
per Item 1117 of Reg AB
|
(i)
All parties to the Sale and Servicing Agreement (as to themselves),
(ii)
the Depositor as to the issuing entity, (iii) the Depositor as to
the
sponsor, any 1106(b) originator, any 1100(d)(1) party
|
|
Additional
Item:
Disclosure
per Item 1119 of Reg AB
|
(i)
All parties to the Sale and Servicing Agreement (as to themselves),
(ii)
the Depositor as to he sponsor, originator, significant obligor,
enhancement or support provider
|
|
Additional
Item:
Disclosure
per Item 1112(b) of Reg AB
|
Depositor/
Master Servicer
|
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Reg AB
|
Depositor
|
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 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.
|
All
parties as to themselves
|
|
Item
1.02- Termination of a Material 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.
|
All
parties as to themselves
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
· Sponsor
(Seller)
|
Depositor/Sponsor
(Seller)
|
|
· Depositor
|
Depositor
|
|
· Master
Servicer
|
Master
Servicer
|
|
· Affiliated
Servicer
|
Master
Servicer
|
|
· Other
Servicer servicing 20% or more of the pool assets at the time of
the
report
|
Master
Servicer
|
SC-9
|
FORM
8-K DISCLOSURE (REPORTABLE EVENTS)
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
· Other
material servicers
|
Master
Servicer
|
|
· Indenture
Trustee
|
Indenture
Trustee
|
|
· Administrator
|
Administrator
|
|
· Significant
Obligor
|
Depositor
|
|
· Credit
Enhancer (10% or more)
|
Depositor
|
|
· Derivative
Counterparty
|
Depositor
|
|
· Owner
Trustee
|
Owner
Trustee
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
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.
|
Depositor
Master
Servicer
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Administrator
Indenture
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment "to the governing documents of the issuing
entity".
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
SC-10
|
FORM
8-K DISCLOSURE (REPORTABLE EVENTS)
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
Item
6.02- Change of Master Servicer or Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, and other servicer servicing
10% or
more of pool assets at time of report, other material servicers or
Indenture Trustee.
|
A
change of both – Depositor/Indenture Trustee
A
change of Servicer, Master Servicer or Administrator - Master
Servicer/Administrator/Depositor/
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Indenture Trustee is also
required.
|
New
Indenture Trustee
|
|
Item
6.03- Change in Credit Enhancement or 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.
|
N/A
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Master
Servicer
Indenture
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
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.
|
Depositor
|
SC-11
|
FORM
8-K DISCLOSURE (REPORTABLE EVENTS)
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
Depositor
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
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)
(REPORTING SUBCONTRACTOR)
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 June 1, 2007, among
Wachovia Auto Loan Owner Trust 2007-1, 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)
(MASTER SERVICER)
The
undersigned Master Servicer 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 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 June 1, 2007, among Wachovia
Auto Loan Owner Trust 2007-1, 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 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.
SE-1
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 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.
A-1
(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.
A-3
(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 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 $145,000.00 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 28.07% of
the Pool Balance was secured by new Financed Vehicles and approximately 71.93%
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 59.27 months.
A-4
(xxviii) Annual
Percentage Rate. Each Receivable has a Contract Rate of at least
4.00% and not more than 30.00% and the weighted average Contract Rate of the
Receivables as of the Cutoff Date was approximately 12.36%.
(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 639.
(xxxix) Obligor
Mailing Address. No more than 32.15% 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 2007-1
Wachovia Auto Loan Owner Trust 2007-1
|
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-2
Notes:
|
$ per
$1,000 original principal amount
|
|
c. Class A-3a
Notes:
|
$ per
$1,000 original principal amount
|
|
d. Class
A-3b Notes:
|
$ per
$1,000 original principal amount
|
|
d. Class B
Notes:
|
$ per
$1,000 original principal amount
|
|
e. Class
C Notes:
|
$ per
$1,000 original principal amount
|
|
f. Class
D Notes:
|
$ per
$1,000 original principal amount
|
|
g. 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-2
Notes:
|
___________
|
||
|
c. Class A-3a
Notes:
|
___________
|
||
|
d. Class
A-3b Notes:
|
___________
|
||
|
e. Class B
Notes:
|
___________
|
||
|
f. Class C
Notes:
|
___________
|
||
|
g. Class D
Notes:
|
___________
|
||
|
h. Class E
Notes:
|
___________
|
||
|
16. Note
Balance
|
$__________
|
||
B-1
|
|
|||
|
a. Class A-1
Notes:
|
$__________
|
||
|
b. Class A-2
Notes:
|
$__________
|
||
|
c. Class A-3a
Notes:
|
$__________
|
||
|
d. Class A-3b
Notes:
|
$__________
|
||
|
e. Class B
Notes:
|
$__________
|
||
|
f. Class C
Notes:
|
$__________
|
||
|
g. Class D
Notes:
|
$__________
|
||
|
h. 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 ____)
|
$__________
|
||
|
c. 90
or more days past due (No. of Receivables ____)
|
$__________
|
||
| 34. Excess Collections | $__________ | ||
B-2
|
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–2 Noteholders
|
$__________
|
|
3. To
the Class A–3a Noteholders
|
$__________
|
|
4. To
the Class A–3b Noteholders
|
$__________
|
|
5. To
the Class B Noteholders
|
$__________
|
|
6. To
the Class C Noteholders
|
$__________
|
|
7. To
the Class D Noteholders
|
$__________
|
|
8. To
the Class E Noteholders
|
$__________
|
|
c. From
the Certificate Payment Account:
|
|
|
1. To
the Certificateholders
|
$__________
|
|
d. From
the Reserve Fund:
|
|
|
1. To
the Collection Account
|
$__________
|
|
2. To
the Swap Counterparty
|
$__________
|
B-3
|
3. To
the Certificateholders
|
$__________
|
B-4
EXHIBIT C
FORM
OF
MASTER SERVICER’S CERTIFICATE
Wachovia
Auto Loan Owner Trust 2007-1
|
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-2 Notes: | $ per $1,000 original principal amount |
|
|
| c. Class A-3a Notes: | $ per $1,000 original principal amount |
|
|
| d. Class A-3b Notes: | $ per $1,000 original principal amount |
|
|
| e. Class B Notes: | $ per $1,000 original principal amount |
|
|
| f. Class C Notes: | $ per $1,000 original principal amount |
|
|
| g. Class D Notes: | $ per $1,000 original principal amount |
|
|
| h. 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-2
Notes:
|
___________
|
||
|
c. Class A-3a
Notes:
|
___________
|
||
|
d.
Class
A-3b Notes:
|
___________
|
||
|
e. Class B
Notes:
|
___________
|
||
|
f. Class C
Notes:
|
___________
|
||
|
g. Class D
Notes:
|
___________
|
||
|
h. Class E
Notes:
|
___________
|
||
|
16. Note
Balance
|
___________
|
||
C-1
|
|
|
|
a. Class A-1
Notes:
|
___________
|
|
b. Class A-2
Notes:
|
___________
|
|
c. Class A-3a
Notes:
|
___________
|
|
d.
Class
A-3b Notes:
|
___________
|
|
e. Class B
Notes:
|
___________
|
|
f. Class C
Notes:
|
___________
|
|
g. Class D
Notes:
|
___________
|
|
h. 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
____)
|
$__________
|
|
c. 90
or more days past due (No. of Receivables ____)
|
$__________
|
C-2
|
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–2 Noteholders
|
$__________
|
|
3. To
the Class A–3a Noteholders
|
$__________
|
|
4. To
the Class A–3b Noteholders
|
$__________
|
|
5. To
the Class B Noteholders
|
$__________
|
|
6. To
the Class C Noteholders
|
$__________
|
|
7. To
the Class D Noteholders
|
$__________
|
|
8. To
the Class E Noteholders
|
$__________
|
|
c. From
the Certificate Payment Account:
|
|
|
1. To
the Certificateholders
|
$__________
|
|
d. From
the Reserve Fund:
|
|
|
1. To
the Collection Account
|
$__________
|
C-3
|
2. To
the Swap Counterparty
|
$__________
|
|
3. To
the Certificateholders
|
$__________
|
C-4